General Principles of Law Recognized by Civilized Nations (1922-2018): The Evolution of the Third Source of International Law Through the Jurisprudence of the Permanent Court of International Justice and the International Court of Justice [1 ed.] 9789004400184, 9789004375062

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General Principles of Law Recognized by Civilized Nations (1922–2018)

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Sarah Singer

volume 39

The titles published in this series are listed at brill.com/qmil

General Principles of Law Recognized by Civilized Nations (1922–2018) The Evolution of the Third Source of International Law through the Jurisprudence of the Permanent Court of International Justice and the International Court of Justice

By

Marija Đorđeska

leiden | boston

Cover illustration: Angelos Panagiotou, Destruction and Regeneration (2015, oil on canvas, 120 × 130 cm) “Historic monuments built from the need of man to travel to the stars of the universe in search of the original source of the Absolute Truth. This truth, however, lies within the measures of God, not in that of man”. Copyright of the digital image: ‘Katoufas brothers’. The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 1877-4822 ISBN 978-90-04-37506-2 (hardback) ISBN 978-90-04-40018-4 (e-book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

In memory of Stephen Hawking (1942–2018), whose work on the laws of the Universe continues to inspire the quest to discover the ‘black holes’ of public international law

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For it is the one who is the least among you all who is the greatest. Luke 9:48

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Contents Foreword  xiii Preface  xv Acknowledgments  xvi List of Figures and Tables  xvii Abbreviations  XIX Explanation of the Latin Terms  XX Author’s Explanation of the Terms Used  xxviii Cases by Court  xxxii Treaties and International Materials  xli Introduction  1

Part 1 General Principles in Theory 1

Origins of the General Principles  9 1.1 History of Article 38 of the PCIJ Statute  9 1.2 The Advisory Committee of Jurists’ Debate on Draft Article 35(3)  17 1.3 The Novelty of Post-1920 General Principles  25

2

International Judicial Law-Making and the General Principles  31 2.1 International Law-Making and the Court  31 2.2 Processes of International Judicial Law-Making: Elevation, Transplantation and Judicial Creation  40 2.3 General Principles Ascertained for the International Community and Article 59 of the Court’s Statute  43 2.4 States and the Court’s Ascertainment of General Principles  47 2.5 General Principles and the Court: A Symbiotic Relationship  51

3 What Are General Principles? Theory and Conclusions  54 3.1 Theory  55 3.2 Conclusions on General Principles  62 3.2.1 Conclusion 1: General Principles Are ‘Principles’ and ‘Rules’  63 3.2.2 Conclusion 2: General Principles Are ‘Principles’ and ‘Rules’ of International Law  82

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3.2.3 Conclusion 3: General Principles Apply to the Entire International Community  92 3.2.4 Conclusion 4: General Principles Are Ascertained with the Court’s Opinio Juris  96 3.3 What Are General Principles Not?  100 4

Introducing the ‘Cube’  102 4.1 Types of General Principles  105 4.1.1 Substantive General Principles  105 4.1.2 Procedural General Principles  107 4.1.3 Interpretative General Principles  108 4.1.4 Exceptions  112 4.2 General Principles’ Underpinnings  112 4.2.1 Domestic Underpinning  113 4.2.2 International Underpinning  119 4.2.3 Judicial Underpinning  123 4.2.4 Mixed Underpinning  126 4.3 Scholarly Attempts to Categorise General Principles  127

5

The Relationship between General Principles and Other Sources of International Law  132 5.1 General Principles as an Independent Source of International Law  136 5.1.1 General Principles and Treaties  139 5.1.2 General Principles and Customary International Law  143 5.1.3 Trend: Customary International Law Instead of General Principles?  153 5.2 General Principles Supplement Other Sources of International Law  156 5.3 General Principles Retain Their Independence When Embodied in Other Sources of International Law  158 5.4 Canons of Supersession among the Sources of International Law  166 5.4.1 General Principles vs. Treaties  168 5.4.2 General Principles vs. Customary International Law  171 5.4.3 General Principles vs. General Principles  172 5.5 ‘Other Rules’ of International Law?  174 5.6 General Principles and Other Source(-Related) Notions  181 5.6.1 General Principles vs. Jus Cogens 182 5.6.2 General Principles vs. Ex Aequo et Bono  183 5.6.3 General Principles vs. Equity  186

Contents

ix

Part 2 General Principles in Practice 6

Research Methodology and Statistics  193 6.1 Researching General Principles  193 6.1.1 Scholars’ Methodology?  194 6.1.2 The Court’s Methodology  198 6.1.3 Methodology of the Present Study  202 6.2 Statistics  216 6.2.1 General Principles’ Recurrence  219 6.2.2 Court Categories  221 6.2.3 Type  222 6.2.4 Underpinning  225 6.2.5 Type vs. Underpinning  229

7

General Principles Ascertained by the Permanent Court of International Justice (1922–1940)  234 7.1 Introduction  234 7.2 Overview of the PCIJ’s Reliance on General Principles  235 7.3 Selected Substantive General Principles  241 7.3.1 General Principles That Regulate State Conduct  241 7.3.2 General Principles That Regulate Non-State Actors  249 7.4 Selected Procedural General Principles  255 7.4.1 General Principles Related to the Court’s Jurisdiction  255 7.4.2 General Principles Related to the Parties’ Standing  258 7.4.3 Other Procedural General Principles  261 7.5 Selected Interpretative General Principles  264 7.5.1 General Principles Specific to Treaty Interpretation  264 7.5.2 General Principles Not Specific to Treaty Interpretation  267 7.5.3 Other Interpretative General Principles  268 7.6 ‘Other Rules’  273 7.7 Concluding Observations  274

8

General Principles Ascertained by the International Court of Justice (1948–2018)  275 8.1 Introduction  275 8.2 Overview of the ICJ’s Reliance on General Principles  276 8.3 Selected Substantive General Principles  286 8.3.1 General Principles Related to the Law of Treaties  286 8.3.2 General Principles Related to State Succession  288 8.4 Selected Procedural General Principles  291

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8.4.1 General Principles Related to the Court’s Jurisdiction  291 8.4.2 General Principles Related to Evidentiary Proceedings  301 8.5 Selected Interpretative General Principles  305 8.5.1 General Principles Specific to Treaty Interpretation  307 8.5.2 General Principles Not Specific to Treaty Interpretation  309 8.5.3 General Principles of Good Faith and Pacta Sunt Servanda  317 8.6 ‘Other Rules’  323 8.7 Concluding Observations  324 9

Case Study: The Evolution of the General Principle of Diplomatic Protection through the Court’s Jurisprudence (1924–2012)  326 9.1 Introduction  326 9.2 Evolution of the Elements of Diplomatic Protection  328 9.2.1 Initial Formulation  328 9.2.2 General Principle of the Bond of Nationality  330 9.2.3 General Principle of the Exhaustion of Domestic Remedies  332 9.2.4 Diplomatic Protection and Companies  334 9.2.5 Diplomatic Protection and Questions of Reparation  336 9.2.6 Diplomatic Protection and International Organisations (i.e., Functional Protection)  337 9.3 Concluding Observations  338

Conclusion  341

Part 3 Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018)

Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018)  351 1.1 List of General Principles  352 1.2 Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018)  361 I Substantive General Principles  361

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II Procedural General Principles  488 III Interpretative General Principles  571 Appendices  635 Appendix 1: Conclusions on General Principles  637 Appendix 2: Dataset  638 Literature  645 Indices  667

Foreword This monograph is undoubtedly a very interesting and scholarly study on general principles of law as relied upon by the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) in their decisions between 1922 and 2018. The book of Dr Marija Đorđeska is a very timely addition to the debate on general principles of law in light of the International Law Commission’s recently initiated project on general principles of law (with Marcelo Vázquez-Bermúdez acting as Special Rapporteur). The First Report of the Special Rapporteur was just submitted.1 This study is very erudite and the author presents an in-depth analysis of theoretical questions pertaining to general principles. I found particularly interesting a historical background of general principles of law, as reflected by discussions within the Committee of Jurists during their work on the drafting of the PCIJ Statute. The original contribution of Dr Đorđeska to the question of general principles of law as applied by the ICJ and the PCIJ is the introduction of so-called the ‘Cube’, which is a visual way of categorising and ascertaining general principles, its sides representing the six characteristics each general principle may have. She identified three types of general principles: substantive, procedural and interpretative, which may have one, two or even three underpinnings: domestic, international and judicial. The author’s research presented in this book has led to at times to unexpected conclusions that are at times contrary to the overwhelming agreement among scholars, for example, that general principles derive from domestic legal systems and that the Court referred to domestic laws in very few decisions. Dr Đorđeska is of the view that ‘[b]y omitting to include any reference to domestic law in the text of its decisions, the Court chose not to attach domestic underpinning to those general principles (and other norms) it considered, although they may well have been derived from domestic law’ (see Conclusion). She explains that the debate whether the expression ‘general principles of law’ in Article 38(1)(c) formulation refers to domestic or international law is irrelevant. According to the author of the book, all general principles, regardless of their underpinning, when applied by the Court become norms of international law. She concludes that notwithstanding whatever their underpinning general principles are norms of international law. This is a very interesting conclusion, 1 Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (forthcoming), U.N. Doc. A/CN.4/732.

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Foreword

which may lead to a robust debate. Dr Đorđeska has presented an interesting insight into, in my view, still unresolved question of the relationship between customary international law and general principles in practice of the ICJ and the PCIJ. In general, she found out that although the general principles feature prominently in the ICJ’s jurisprudence, the Court’s reliance on general principles is decreasing. She also suggests reformulation of the definition of general principles in Article 38(1) (c) of the ICJ Statute, which she finds archaic, to ­reflect better their legal content. She proposes ‘the legal principles and rules recognised by the Court for the entire international community’ or ‘norms ascertained by the Court’, to indicate that Article 38(1)(c) encompasses two modalities of norms – both ‘principles’ and ‘rules’. Of course, she is aware that such a radical change seems to be highly unlikely, nonetheless a clearer definition, according to the author, would be advisable. I highly recommend this monograph, which in my view, is a very scholarly study, which has contributed greatly to the ongoing discussion on general principles of law and to their further understanding. Malgosia Fitzmaurice London, 27 May 2019

Preface D’Aspremont writes that “[a]ny international lawyer – even the nihilist – is an activist of his or her own understanding of law (and of its sources) and, hence, of a given way to make sense of the world”.1 The ‘world’ of international law as I see it is that of a community of individuals (i.e., States and other international actors) that make the law according to their free will, having no government or parliament to rule over them. The court that this community resorts to (i.e., the International Court of Justice) does not have codified laws to base its decisions on. Instead, it relies on contracts agreed upon between individuals (i.e., treaties) and the community’s customs (i.e., customary international law). However, this court can and does resort to certain norms that are neither stipulated in the contracts nor part of custom in its search for the applicable rules. These certain norms are the so-called “general principles recognized by civilized nations”.2 This work assesses general principles through the perspective of the Permanent Court of International Justice and the International Court of Justice and, subject to my own understanding of the sources of international law, clarifies these elusive but important norms “for the benefit of all”.3 1 D’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, 84 Brit. Y. Int’l L. 1, 103 (2014), at 129–130. 2 Statute of the International Court of Justice, 24 Oct. 1945, 1491 U.N.T.S. 199, art. 38(1)(c). 3 Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] I.C.J. 3, at ¶72 (25 July).

Acknowledgments This book was made possible with the generous support of my family and friends. I would like to express my thanks to Malgosia Fitzmaurice for her encouragement and guidance in the writing of the manuscript, Tommaso De Michele for designing the ‘Cube’, Sam Ghazizadeh for his tireless help on the figures and to the anonymous reviewer for his constructive comments on the first draft. In addition, I am grateful to Angelos Panagiotou who kindly gave permission to use the image of his painting on the front cover of this book. Many thanks go also to my colleagues around the world who kindly i­ nformed me of literature on general principles in their native languages (listed in Further Reading, Bibliography), namely, Benjamin Samson and Nicolas Angelet (in French), Asaf Lubin (in Hebrew), Jakub Wojsyk and Agata Kleczkowska (in Polish) and Vasilka Sancin (in Slovene). Last but not least I would like to thank Ingeborg van der Laan, Kate Elliott and Amir Ben-Shabat for their support in finalising the manuscript.

Figures and Tables Figures 3.1 ‘Rules and principles’ of international maritime law  79 4.1 The ‘Cube’  103 4.2 Within the ‘Cube’: Procedural general principle with a domestic underpinning  104 4.3 Within the ‘Cube’: Substantive and interpretative general principle with an international underpinning  104 5.1 Norm of interpretation of international instruments as belonging to all three sources  161 6.1 Decisions referring to general principles (1922–2018)  217 6.2 General principles’ recurrence (1922–2018)  220 6.3 General principles’ recurrence at the pcij and icj  221 6.4 General principles at the pcij and icj  222 6.5 General principles’ type  223 6.6 General principles’ type by court category (1/2)  224 6.7 General principles’ type by court category (2/2)  225 6.8 General principles’ underpinning  226 6.9 General principles’ underpinning by court category (1/2)  227 6.10 General principles’ underpinning by court category (2/2)  228 6.11 Comparing general principles’ type and underpinning  230 6.12 General principles with an international underpinning: comparing type and court category  231 6.13 General principles with a judicial underpinning: comparing type and court category  232 6.14 General principles with a mixed underpinning: comparing type and court category  233 7.1 Reference to general principles (1922–1940)  236 7.2 General principles’ type (1922–1940)  236 8.1 General principles’ recurrence (1948–2018)  277 8.2 General principles’ type (1948–2018)  278 8.3 General principles’ recurrence (1948–2018)  279 8.4 Substantive general principles (1948–2018)  280 8.5 Substantive general principles by topic (1948–2018)  281 8.6 Procedural general principles (1948–2018)  281 8.7 Procedural general principles by topic (1948–2018)  282 8.8 Interpretative general principles (1948–2018)  282

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Figures and Tables

8.9 Interpretative general principles by topic (1948–2018)  283 8.10 General principles’ underpinning (1948–2018)  285 9.1 Formula of Diplomatic Protection  338

Tables 8.1 Recurrent vs. non-recurrent general principles (1948–2018)  278 8.2 Recurrent general principles (1948–2018)  279

Abbreviations ACJ CARU

Advisory Committee of Jurists Administrative Commission of the River Uruguay (in original: ­Comisión Administradora del Río Uruguay) CERD International Convention on the Elimination of All Forms of Racial Discrimination DRC Democratic Republic of Congo ECTHR European Court of Human Rights FCN Treaty Freedom, Commerce and Navigation Treaty FRY Former Republic of Yugoslavia ICAO International Civil Aviation Organization ICJ International Court of Justice ICTY International Criminal Court for the former Yugoslavia ILC International Law Commission ILOAT Administrative Tribunal of the International Labour Organization PCIJ Permanent Court of International Justice UNAT United Nations Appeals Tribunal UNCLOS III United Nations Convention on the Law of the Sea (1982) VCCR Vienna Convention on Consular Relations VCDR Vienna Convention on Diplomatic Relations VCLT Vienna Convention on the Law of Treaties WHO World Health Organization WtO World Trade Organization

Explanation of the Latin Terms Latin expression English translation

Meaning

Translation and description of the Latin terms are taken from Fellmeth and Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2009) unless indicated otherwise. a fortiori a priori

actio popularis

ad hoc aequitas

audi alteram partem

from the stronger

“Even more so; by the same logic, to an even greater degree” (at 2). from the former “Derived by deductive reasoning from self-evident or assumed propositions [… or] [p]resumptive(ly) and definite(ly), without examination or further consideration or attention to consequences or evidence” (at 5). action at law of the “A right of action belonging to the people international community as a whole or to any person, usually arising from a violation of a duty erga omnes” (at 12). for this “For the specific purpose at hand, without reference to wider application or use” (at 18). equity “Equity; fairness; impartiality [… or] [a] system of law developed by courts to supplement the incomplete or sometimes harsh consequences of a strict application of law with considerations of justice and fairness” (at 23). listen to the other “A principle of due process […] side under which all parties before an international tribunal must have an opportunity to be heard and are treated equally under the law” (at 41)

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Explanation of the Latin Terms

Latin expression English translation cessatio ratione legis, cessat ipse lex

Meaning

when the rationale “[W]hen the precondition, rationale, of the law ceases, or policy basis for a law becomes the law also ceases obsolete, the law itself ceases to remain in force” (at 53). clausula rebus sic by the clause the “[I]nternational instruments […] stantibus situation thus cease to be obligatory when the facts remaining that were a necessary precondition to the agreement have fundamentally changed so as to undermine the intent of the parties” (at 55). contra against the offeror “[A]mbiguity or vagueness in the proferentem legal instrument should be construed against the interests of the drafter” (at 66). de facto from the fact “As a matter of fact or reality [… or] [e]xisting in fact while lacking in legal or moral legitimacy” (at 74). dictum saying “A maxim [… or] [a] statement of opinion considered persuasive due to the authority of the commentator” (at 79–80). ejus est whoever is “[T]he most authoritative interpreter interpretare lege authorised to of a legal instrument or of a judicial cujus condere establish the law is or arbitral decision is the body that authorised to drafted the law or issued the interpret it judgment or award” (at 86). erga omnes towards all “[O]bligations owed by a state to all other states or the international community at large” (at 88). ergo therefore “Therefore; hence” (at 89). ex aequo et bono from equity and “A manner of deciding a case goodness pending before a tribunal” (at 91). ex injuria jus non a right does not “[O]ne cannot generally rely on a oritur arise from violation of law to establish a new wrongdoing. legal right or to confirm a claimed right” (at 94).

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Explanation of the Latin Terms

Latin expression English translation ex nunc ex proprio motu ex tunc forum prorogatum

in camera in limine litis inter alia

inter se ipso facto jura novit curia

from now from its own motion

Meaning

“From this time” (at 97). “Done on one’s own initiative, without external prompting” (at 269, see also 98). from then “From or at a former time [or …] [r]etroactively” (at 100). the deferred forum “The jurisdiction to whose authority the parties have acquiesced through an ad hoc agreement. In the absence of such agreement, the parties are deemed to have selected the default forum as the forum prorogatum” (at 112). in the room “In the judge’s or arbitrator’s private chambers” (at 123). at the threshold of “[Time] [i]mmediately before the litigation commencement of a legal case” (at 130). among others “Among other things. The use of inter alia indicates that things other than those named may also exist or be material. By implication, the subset named is either more relevant to the issue under discussion or merely serves as an example of the larger set not fully listed” (at 140). between “Between the relevant parties” (at themselves 142). by the fact itself “By virtue of the fact alone and without other, intervening, facts; by the very nature of the facts” (at 144). the court knows the “[B]ecause the tribunal is presumed laws to know and apply the law, the parties to a dispute are not required to invoke all applicable legal rules explicitly or to convince the tribunal

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Explanation of the Latin Terms

Latin expression English translation

jus cogens

jus gentium

lacuna [legis]

lex generalis

Meaning

of the law’s content […] a judicial or arbitral tribunal is not bound by the construction of the law or a legal instrument proposed by any of the parties to the dispute” (at 147). coercive law “[S]et of peremptory norms of international law owed by all states […] law of a mandatory nature that the international community generally recognizes and accepts as not admitting of any objection or derogation by treaty” (at 151–152). law of peoples “[T]he law applicable to persons lacking Roman citizenship [… later understood as] denot[ing] natural law rules supposedly applicable to all persons of any nationality [… The term also describes] a body of law that is universally accepted by the international community as a whole” (at 155). gap (lacuna) in the “[S]omething missing in the written law code of the law which therefore leaves uncovered a relevant aspect of a case or situation” (Bretzke, Consecrated Phrases: A Latin Theological Dictionary; Latin Expressions Commonly Found in Theological Writings Third Edition (Collegeville: Liturgical Press, 2013), at 140). general law “Law as it applied generally to all subjects or with respect to all subject matters as opposed to a specialized legal regime applying only to specific subject matter” (at 168).

xxiv

Explanation of the Latin Terms

Latin expression English translation lex posterior derogat (legi) priori

a later law repeals an earlier (law)

Meaning

“[A] legal rule arising after a conflicting legal rule prevails over the earlier rule to the extent of the conflict” (at 174). lex specialis special law “Law unique to a particular regime or applicable in specific scenarios” (at 176). mutatis mutandis with the necessary “A phrase denoting that a statement changes applies to matters or things other than those mentioned, with appropriate alterations or adjustments as to the particularities or details” (at 189). ne bis in idem not twice for the “[N]o person should be tried twice same thing for the same illegal act” (at 190). non ultra petita not beyond the “[A] tribunal should not pleadings unnecessarily decide questions of law or fact not raised by the parties to a dispute, on the theory that the tribunal’s jurisdiction is limited to deciding matters raised by the parties” (at 200). non-liquet it is unclear “A judgment denoting that the tribunal refuses to render an award or judgment in the belief that the law supplies no rule applicable to the case before it” (at 198). onus probandi the burden of proof “[A]llocating the burden of proof to incumbit actori weighs on the the party bringing a charge or plaintiff instigating a legal action” (at 13). opinio juris legal opinion “The belief […] that a norm is legally binding, either because it is an established custom or because the norm is a necessary condition to the maintenance of a stable world public order” (at 208).

xxv

Explanation of the Latin Terms

Latin expression English translation pacta sunt servanda

treaties are observed

post hoc

after this

prima facie

at first sight

proprio motu

from its own motion ratione materiae by reason of the matter ratione temporis by reason of time

res inter alios acta

a matter between others

Meaning “[E]very treaty in force binds the parties to that treaty to perform their obligations […] until their adherence to the treaty has been lawfully terminated” (at 212). “Occurring retrospectively; after the event in question” (at 224). “‘On first consideration,’ even though a thorough investigation has not been completed, initial evidence suggests a certain inference which will tend to stand unless disproved” (Bretzke, Consecrated Phrases: A Latin Theological Dictionary; Latin Expressions Commonly Found in Theological Writings Third Edition (Collegeville: Liturgical Press, 2013), at 212). “An alternative phrase for Sua sponte” (at 98, see also at 233). “Because of the nature of the relevant subject matter” (at 247). “Because of the relevant timing or period of time pertaining to the subject under consideration” (at 248). “A matter or rule not legally relevant to a specific person or entity: a matter creating no third-party rights or duties [or …] [a] maxim meaning that treaties, agreements, or other legal instruments cannot derogate from the rights of, or create obligations for, non-parties to the instrument” (at 252).

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Explanation of the Latin Terms

Latin expression English translation res judicata

adjudicated thing

restitution in integrum

full restoration

status quo ante bellum

the condition in which before war

stricto sensu

in the strict sense

sua sponte

on one’s own initiative

sui generis

of its own kind

terra nullius

nobody’s land

Meaning “A matter upon which a final and binding judgment has already been passed, thereby precluding any later, conflicting judgment on the same matter” (at 252). “Restitution of a damaged or taken thing to its previous condition, as by the restoration of the thing to the owner who has been deprived of it” (at 256). “Situation as it existed before an armed conflict occurred, usually with reference to the situation existing before one belligerent seized and occupied foreign or disputed territory” (at 267–268). “Literally and without exaggeration or approximation” (at 269). “Done on one’s own initiative, without external prompting. In judicial and arbitral practice, any procedure undertaken by a tribunal sua sponte is done at the tribunal’s own behest and in the absence of any motion by any party before the tribunal [… or] [s]pontaneously” (at 269). “A type of subject matter that is treated differently than other types due to some idiosyncrasy of the subject matter or a perception of the subject matter” (at 272). “Land or territory over which no state exercises sovereignty but that is open to claims of exclusive rights or peaceful occupation by any state with the intention of acquiring sovereignty over it” (at 277).

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Explanation of the Latin Terms

Latin expression English translation ultra vires ut res magis valeat quam pereat uti possidetis juris

verbatim vice versa

Meaning

beyond the powers “Outside the scope of the authorized powers of the actor” (at 283). so that the matter “[O]ne should avoid reading the may flourish rather instrument in a manner that would than perish render language in the instrument redundant, void, or ineffective” (at 286). so that you may “[C]hange in sovereignty over a possess territory, especially due to independence following decolonization, does not ipso facto alter that territory’ s administrative boundaries as established by colonial authorities out of respect for succession to legal title by the new sovereign” (at 287). word by word “Literally [… or] [i]n his/her/its precise words; word for word” (at 291). reversely “Reversely; the other way around” (at 293).

Author’s Explanation of the Terms Used Term used domestic principles

Explanation

Norms in the modality of ‘principles’ in domestic laws. Domestic principles are not automatically part of Article 38(1)(c) of the Court’s Statute, unless declared so by the Court. See also principles (as a modality). domestic Domestic legislation or domestic court decision(s) that underpinning provides the basis for the Court’s ascertainment of a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. See also underpinning; international underpinning; judicial underpinning; mixed underpinning. elevation One of the three processes of international law-making, when the Court ascertains a norm that was previously part of one or more domestic legal systems as a norm of international law. The Court elevates a norm from domestic law into international law. See also international law-making; transplantation; judicial creation. general principles Norms in the modality of ‘rules’ and (or) ‘principles’, forming part of international law and constituting Article 38(1)(c) of the Court’s Statute. As per research methodology: norms to which the Court referred at least once as ‘principles’ in its jurisprudence. See also other rules. international States, nations, peoples, groups; individuals and community companies participating (directly or indirectly) in the proceedings before the Court. international Process of ascertaining new norms of international law or law-making attributing new norms to a particular source of international law. international International (binding and non-binding) instruments underpinning and customary international law that provide the basis for the Court’s ascertainment of a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. See also underpinning; judicial underpinning; domestic underpinning; mixed underpinning.

Author’s Explanation of the Terms Used

Term used

xxix

Explanation

interpretative Norms in the modality of ‘rules’ and (or) ‘principles’, general principles forming part of international law and constituting Article 38(1)(c) of the Court’s Statute, that aid the Court in interpreting international law. Applicable during the Court’s deliberations and interpretation of international law. See also types; substantive general principles; procedural general principles. judicial creation One of the three processes of international law-making when the Court ascertains a norm by relying solely on their own discretion or on an international judicial precedent without relying on any other external basis. The Court creates (or ascertains) a norm that was previously not considered as belonging to international law. See also international law-making; elevation; transplantation. judicial International judicial precedent or absence of any basis underpinning and external evidence in the Court’s ascertainment of a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. See also underpinning; international underpinning; domestic underpinning; mixed underpinning. mixed A combination of two or three underpinnings underpinning (domestic, international and judicial) describing the content or establishing the existence of a particular general principle. May be acquired over time or ascertained in one decision. Usually representing the combination of judicial and international underpinning. See also underpinning; judicial underpinning; domestic underpinning; judicial underpinning. modality Describing two forms in which norms of international law may appear, namely, ‘principles’ and ‘rules’. Both modalities (‘principles’ and ‘rules’) apply to all three traditional sources of international law. See also principles (as a modality); rules (as a modality).

xxx Term used other rules

Author’s Explanation of the Terms Used

Explanation

Norms, mostly in the modality of ‘rules’, referred to in the Court’s jurisprudence that do not belong prima facie to any of the three traditional sources of international law in Article 38(1) of the Court’s Statute. Unlike the general principles, other rules have never been referred to as ‘principles’ in the Court’s jurisprudence. See also general principles. principles (as a One of the two modalities that give expression to modality) international norms. This modality carries a standard rather than a concrete imperative for the subjects of international law. See also rules (as a modality). procedural general Norms in the modality of ‘rules’ and/or ‘principles’, principles forming part of international law and constituting Article 38(1)(c) of the Court’s Statute, that regulate the conduct of States in proceedings before the Court and the Court’s functioning. Applicable only in the Court’s proceedings. See also types; substantive general principles; interpretative general principles. recurrence The repeating of a norm over the course of the Court’s jurisprudence in two or more decisions. See also recurrent general principle. recurrent general General principle that the Court relies upon in two or principle more decisions. See also recurrence. rules (as a One of the two modalities that give expression to modality) international norms. This modality carries a concrete imperative for the subjects of international law. Usually provides the rights and obligations for the international community. See also principles (as a modality). substantive Norms in the modality of ‘rules’ and/or ‘principles’, general principles forming part of international law and constituting Article 38(1)(c) of the Court’s Statute, that provide the rights and obligations of States and/or other actors within the international community. Applicable outside the Court’s proceedings. See also types; procedural general principles; interpretative general principles.

Author’s Explanation of the Terms Used

xxxi

Term used

Explanation

the Court

Permanent Court of International Justice and the International Court of Justice. Term used to describe the jurisprudence of the Permanent Court of International Justice and/or the International Court of Justice. One of the three processes of international law-making, when the Court ascertains a norm that belongs to another source of international law as a norm of international law. The Court transplants a treaty provision (Article 38(1)(a) of the Court’s Statute) into customary international law (Article 38(1)(b) of the Court’s Statute). See also international law-making; elevation; judicial creation. One of two groups of characteristics concerning general principles, allowing three types of general principles (substantive, procedural, interpretative). This group of characteristics establishes to whom general principles are applicable (States, international organisations, individuals, the Court, etc.) and in what situations (outside Court proceedings or during proceedings before the Court). A general principle is usually of one type. See also underpinning; substantive general principles; procedural general principles; interpretative general principles. One of the two groups of characteristics concerning general principles, informing about the three possible underpinnings of general principles (domestic, international, judicial). A general principle may have or acquire over time one or more underpinnings. See also types; domestic underpinning; international underpinning; judicial underpinning; mixed underpinning.

transplantation

types

underpinning

Cases by Court 1

Permanent Court of International Justice

1.1 Decisions

“Lotus”, Judgment [1927] P.C.I.J. (ser.A) No. 10 (7 Sept.). Access to, or Anchorage in, the port of Danzig, of Polish War Vessels, Advisory Opinion [1931] P.C.I.J. (ser.A/B) No. 43 (11 Dec.). Acquisition of Polish Nationality, Advisory Opinion [1923] P.C.I.J. (ser.B) No. 7, at 18 (15 Sept.). Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The ­Peter Pázmány University), Judgment [1933] P.C.I.J. (ser.A/B) No. 61 (15 Dec.). Brazilian Loans, Judgment [1929] P.C.I.J. (ser.A) No. 21 (12 July). Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] P.C.I.J. (ser.A) No. 7 (25 May). Competence of the ILO to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] P.C.I.J. (ser.B) No. 13 (23 July). Customs Regime between Germany and Austria, Advisory Opinion [1931] P.C.I.J. (ser.A/B) No. 41 (5 Sept.). Electricity Company of Sofia and Bulgaria, Preliminary Objections [1939] P.C.I.J. (ser.A/B) No. 77 (4 Apr.). Exchange of Greek and Turkish Population, Advisory Opinion [1925] P.C.I.J. (ser.B) No. 10 (21 Feb.). Factory at Chorzów ( Jurisdiction), Judgment [1927] P.C.I.J. (ser.A) No. 9 (26 July). Factory at Chorzów (Merits), Judgment [1928] P.C.I.J. (ser.A) No. 17 (13 Sept.). Free Zones of Upper Savoy and the District of Gex, Judgment [1932] P.C.I.J. (ser.A/B) No. 46 (7 June). Greco-Bulgarian “Communities”, Advisory Opinion [1930] P.C.I.J. (ser.B) No. 17 (31 July). Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] P.C.I.J. (ser.B) No. 12 (21 Nov.). Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] P.C.I.J. (ser.A) No. 13 (16 Dec.). Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion [1932] P.C.I.J. (ser.A/B) No. 50 (15 Nov.). Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion [1928] P.C.I.J. (ser.B) No. 16 (28 Aug.). Interpretation of the Statute of the Memel Territory, Judgment [1932] P.C.I.J. (ser.A/B) No. 49 (11 Aug.).

Cases by Court

xxxiii

Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] P.C.I.J. (ser.B) No. 15 (3 Mar.). Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] P.C.I.J. (ser.B) No. 14 (8 Dec.). Lighthouses case between France and Greece, Judgment [1934] P.C.I.J. (ser.A/B) No. 62 (17 Mar.). Mavrommatis Jerusalem Concessions, Judgment [1925] P.C.I.J. (ser.A) No. 5 (26 Mar.). Mavrommatis Palestine Concessions, Judgment [1924] P.C.I.J. (ser.A), No. 2 (30 Aug.). Minority Schools in Albania, Advisory Opinion [1935] P.C.I.J. (ser.A/B) No. 64 (6 Apr.). Monastery of Saint-Naoum, Advisory Opinion [1924] P.C.I.J. (ser.B) No. 9 (4 Sept.). Nationality Decrees issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] P.C.I.J. (ser.B) No. 4 (7 Feb.). Oscar Chinn, Judgment [1934] P.C.I.J. (ser.A/B) No. 63 (12 Dec.). Pajzs‚ Czáky‚ Esterházy, Judgment [1936] P.C.I.J. (ser.A/B) No. 68 (16 Dec.). Panevezys-Saldutiskis Railway, Judgment [1939] P.C.I.J. (ser.A/B) No. 76 (28 Feb.). Phosphates in Morocco, Judgment [1938] P.C.I.J. (ser.A/B) No. 74 (14 June). Polish Postal Service in Danzig, Advisory Opinion [1925] P.C.I.J. (ser.B) No. 11 (16 May). Question on Jaworzina, Advisory Opinion [1923] P.C.I.J. (ser.B) No. 8 (6 Dec.). Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] P.C.I.J. (ser.A) No. 15 (26 Apr.). Serbian Loans, Judgment [1929] P.C.I.J. (ser.A) No. 20 (12 July). Settlers of German Origin in Poland, Advisory Opinion [1923] P.C.I.J. (ser.B) No. 6 (10 Sept.). Société Commerciale de Belgique, Judgment [1939] P.C.I.J. (ser.A/B) No. 78 (15 June). Status of Eastern Carelia, Advisory Opinion [1923] P.C.I.J. (ser.B) No. 5 (23 July). Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] P.C.I.J. (ser.A) No. 23 (10 Sept.). Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] P.C.I.J. (ser.A/B) No. 44 (4 Feb.). Treaty of Neuilly‚ Article 179‚ Annex‚ Paragraph 4 (Interpretation), Judgment [1924] P.C.I.J. (ser.A) No. 3 (12 Sept.).

1.2 Orders

Factory at Chorzów (Indemnities), Order [1927] P.C.I.J. (ser.A) No. 12 (21 Nov.). Electricity Company of Sofia and Bulgaria, Order [1939] P.C.I.J. (ser.A/B) No. 79 (5 Dec.). Free Zones of Upper Savoy and the District of Gex (Second Phase), Order [1930] P.C.I.J. (ser.A) No. 24 (6 Dec.). Free Zones of Upper Savoy and the District of Gex, Order [1929] P.C.I.J. (ser.A) No. 22 (19 Aug.).

xxxiv

Cases by Court

Losinger, Order [1936] P.C.I.J. (ser.A/B) No. 67 (27 June). Prince von Pless Administration, Order [1933] P.C.I.J. (ser.A/B) No. 52 (4 Feb.).

2

International Court of Justice

2.1 Decisions

Accordance with international law of the unilateral declaration of independence in ­respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] I.C.J. 403 (22 July). Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] I.C.J. 3 (19 Dec.). Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] I.C.J. 12 (21 June). Aerial Incident of 27 July 1955 (Isr. v. Bulg.), Preliminary Objections [1959] I.C.J. 127 (26 May). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] I.C.J. 324 (19 June). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] I.C.J. 639 (30 Nov.). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] I.C.J. 582 (24 May). Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections [2016] I.C.J. 3 (17 Mar.). Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] I.C.J. 93 (22 July). Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), Judgment [1972] I.C.J. 46 (18 Aug.). Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] I.C.J. 177 (15 Dec.). Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion [1988] I.C.J. 12 (26 Apr.). Application for Review of Judgment No. 158 of the United Nations Administrative ­Tribunal, Advisory Opinion [1973] I.C.J. 166 (12 July). Application for Review of Judgment No. 273 of the United Nations Administrative ­Tribunal, Advisory Opinion [1982] I.C.J. 325 (20 July). Application for Review of Judgment No. 333 of the United Nations Administrative ­Tribunal, Advisory Opinion [1987] I.C.J. 18 (27 May). Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] I.C.J. 192 (10 Dec.). Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia

Cases by Court

xxxv

and Herzegovina v. Yugoslavia), Preliminary Objections (Yu. v. Bosn. & Herz.), Judgment [2003] I.C.J. 7 (3 Feb.). Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Sal. v. Hond.), Judgment [2003] I.C.J. 392 (18 Dec.). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] I.C.J.595 (11 July). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] I.C.J. 43 (26 Feb.). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] I.C.J. 412 (18 Nov.). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] I.C.J. General List No. 118 (3 Feb.) . Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] I.C.J. 644 (5 Dec.). Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] I.C.J. 70 (1 Apr.). Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] I.C.J. 53 (12 Nov.). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] I.C.J. 168 (19 Dec.). Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] I.C.J. 6 (3 Feb.). Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] I.C.J. 3 (14 Feb.). Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] I.C.J. 12 (31 Mar.). Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Preliminary Objections [1964] I.C.J. 6 (24 July). Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] I.C.J.3 (5 Feb.). Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] I.C.J. 69 (10 Dec.). Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), ­Judgment [2015] I.C.J. 665 (16 Dec.). Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), ­Compensation [2018] I.C.J. (2 Feb.). Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] I.C.J. 151 (20 July). Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] I.C.J. 9 (6 July).

xxxvi

Cases by Court

Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] I.C.J. 240 (26 June). Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] I.C.J. 177 (4 June). Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] I.C.J. 4 (3 Mar.). Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] I.C.J. 57 (28 May). Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, 1960 I.C.J. 150 (8 June). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] I.C.J. 665 (16 Dec.). Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] I.C.J. 3 (21 Mar.). Continental Shelf (Libya/Malta), Judgment [1985] I.C.J. 13 (3 June). Continental Shelf (Tunis./Libya), Judgment [1982] I.C.J. 18 (24 Feb.). Corfu Channel (U.K. v. Alb.), Compensation [1949] I.C.J. 15 (15 Dec.). Corfu Channel (U.K. v. Alb.), Judgment [1949] I.C.J. 4 (9 Apr.). Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] I.C.J. 246 (12 Oct.). Difference Relating to Immunity from Legal Process of a Special Rapporteur of the ­Commission on Human Rights, Advisory Opinion [1999] I.C.J. 62 (29 Apr.). Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] I.C.J. 213 (13 July). East Timor (Port. v. Austl.), Judgment [1995] I.C.J. 90 (30 June). Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion [1954] I.C.J. 47 (13 July). Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), Judgment [1989] I.C.J. 15 (20 July). Fisheries (U.K. v. Nor.), Judgment [1951] I.C.J. 116 (18 Dec.). Fisheries Jurisdiction (Germ. v. Ice.), Judgment [1974] I.C.J. 175 (25 July). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] I.C.J. 432 (4 Dec.). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] I.C.J. 3 (25 July). Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] I.C.J. 3 (2 Feb.). Frontier Dispute (Benin/Niger), Judgment [2005] I.C.J. 90 (12 July). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] I.C.J. 554 (22 Dec.). Frontier Dispute (Burk. Faso/Niger), Judgment [2013] I.C.J. 44 (16 Apr.). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] I.C.J. 7 (25 Sept.). Haya de la Torre (Colom. v. Peru), Judgment [1951] I.C.J. 71 (13 June). Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] I.C.J. (6 June).

Cases by Court

xxxvii

Interhandel (Switz. v. U.S.), Preliminary Objections [1959] I.C.J. 6 (21 Mar.). International Status of South West Africa, Advisory Opinion [1950] I.C.J. 128 (11 July). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] I.C.J. 65 (30 Mar.). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] I.C.J. 221 (18 July). Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] I.C.J. 73 (20 Dec.). Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), Advisory Opinion [2012] I.C.J. 10 (1 Feb.). Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion [1956] I.C.J. 77 (23 Oct.). Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] I.C.J. 99 (3 Feb.). Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] I.C.J. 1045 (13 Dec.). LaGrand (Ger. v. U.S.), Judgment [2001] I.C.J. 466 (27 June). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] I.C.J. 275 (11 June). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] I.C.J. 303 (10 Oct.). Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicar.), Judgment [2018] I.C.J. (2 Feb.). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] I.C.J. 92 (13 Sept.). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] I.C.J. 351 (11 Sept.). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] I.C.J. 16 (21 June). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] I.C.J. 136 (9 July). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] I.C.J. 226 (8 July). Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] I.C.J. 66 (8 July). Legality of Use of Force (Serb. & Montenegro v. Belg.), Preliminary Objections [2004] I.C.J. 279 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. Can.), Preliminary Objections [2004] I.C.J. 429 (15 Dec.).

xxxviii

Cases by Court

Legality of Use of Force (Serb. & Montenegro v. Fr.), Preliminary Objections [2004] I.C.J. 575 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. Germ.), Preliminary Objections [2004] I.C.J. 720 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. Italy), Preliminary Objections [2004] I.C.J. 865 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. Neth.), Preliminary Objections [2004] I.C.J. 1011 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. Port.), Preliminary Objections [2004] I.C.J. 1160 (15 Dec.). Legality of Use of Force (Serb. & Montenegro v. U.K.), Preliminary Objections [2004] I.C.J. 1307 (15 Dec.). Maritime Delamination in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicar.), Judgment [2018] I.C.J. (2 Feb.). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Preliminary Objections [1994] I.C.J. 112 (1 July). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility [1995] I.C.J. 6 (15 Feb.). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] I.C.J. 40 (16 Mar.). Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] I.C.J. 38 (14 June). Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment [2009] I.C.J. 61 (3 Feb.). Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections [2017] I.C.J. 3 (2 Feb.) Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] I.C.J. 392 (26 Nov.). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] I.C.J. 14 (27 June). Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary ­Objections [1954] I.C.J. 19 (15 June). North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] I.C.J. 3 (20 Feb.). Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] I.C.J. 15 (2 Dec.). Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] I.C.J. 111 (18 Nov.). Nottebohm (Liech. v. Guat.), Second Phase [1955] I.C.J. 4 (6 Apr.). Nuclear Tests (Austl. v. Fr.), Judgment [1974] I.C.J. 253 (20 Dec.). Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment [2018] I.C.J. (1 Oct.). Oil Platforms (Iran v. U.S.), Judgment [2003] I.C.J. 161 (6 Nov.).

Cases by Court

xxxix

Oil Platforms (Iran v. U.S.), Preliminary Objections [1996] I.C.J. 803 (12 Dec.). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] I.C.J. 14 (20 Apr.). Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicar. v. Colom.), Preliminary Objections [2016] I.C.J. 100 (17 Mar.). Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] I.C.J. 115 (27 Feb.). Questions relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment [2012] I.C.J. 422 (20 July). Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] I.C.J. 174 (11 Apr.). Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] I.C.J. 31 (25 Mar.). Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] I.C.J. 281 (11 Nov.). Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] I.C.J. 395 (27 Nov.). Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), Judgment [2009] I.C.J. 3 (19 Jan.). Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] I.C.J. 15 (28 May). Right of Passage over Indian Territory (Port. v. India), Judgment [1960] I.C.J. 6 (12 Apr.). Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] I.C.J. 125 (26 Nov.). Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] I.C.J. 176 (27 Aug.). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Judgment [1966] I.C.J. 6 (18 July). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections [1962] I.C.J. 319 (21 Dec.). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] I.C.J. 12 (23 May). Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] I.C.J. 625 (17 Dec.). Temple of Preah Vihear (Cambodia v. Thai.), Judgment [1962] I.C.J. 6 (15 June). Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] I.C.J. 17 (26 May).

xl

Cases by Court

Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Honduras for Permission to Intervene [2011] I.C.J. 420 (4 May). Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] I.C.J. 624 (19 Nov.). Territorial and Maritime Dispute (Nicar. v. Colom.), Preliminary Objections, 2007 I.C.J. 832 (13 Dec.). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] I.C.J. 659 (8 Oct.). Territorial Dispute (Libya/Chad), Judgment [1994] I.C.J. 6 (3 Feb.). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] I.C.J. 3 (24 May). Western Sahara, Advisory Opinion [1975] I.C.J. 12 (16 Oct.).

2.2 Orders

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), ­Order [2013] I.C.J. 166 (17 Apr.). Certain Activities carried out by Nicaragua in the Border Area (Nicar. v. Costa Rica), ­Order [2013] I.C.J. 184 (17 Apr.). Legality of Use of Force (Yu. v. U.S.), Order [1999] I.C.J. 916 (2 June). Questions relating to the Seizure and Detention of Certain Documents and Data (Timor– Leste v. Austl.), Order [2014] I.C.J General List No. 156 (3 Mar.) .

3

Decisions of Other Courts and Tribunals

Al-Jedda v. United Kingdom, Grand Chamber Judgment [2011] European Court of ­Human Rights (7 July). Palko v. State of Connecticut, 302 U.S. 319 [1937] United States Supreme Court (6 Dec.). Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber Judgment [1999] I.C.T.Y. (15 July).

Treaties and International Materials 1 Treaties Agreement II of Paris, Settlement of questions relating to the Agrarian Reforms and Mixed Arbitral Tribunals, 28 Apr. 1930 Charter of the United Nations, 26 June 1945. Convention de Saint-Germain-En-Laye Revising the General Act of Berlin (of 26 Feb. 1885) and the General Act of Declaration of Brussels (of 2 July 1890) (relating to Congo River Basin), 10 Sept. 1919 (Treaty of Saint-Germain). Convention for Establishment of Inter-Governmental Maritime Consultative Organization, 6 Mar. 1958. Convention Instituting the Definitive Statute of the Danube, 23 July 1921. Convention on the High Seas, 29 Apr. 1958, 145 U.N.T.S. 11. Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277. Convention Respecting Conditions of Residence and Business and Jurisdiction, Lausanne Peace Treaty, 24 July 1923. Convention VIII Relative to the Laying of Automatic Submarine Contact Mines, 18 Oct. 1907, 36 Stat. 2332, Treaty Series 541. Covenant of the League of Nations, 28 Apr. 1919. Declaration Concerning the Protection of Minorities in Albania, 2 Oct. 1921. General Act of Algeciras, 7 Apr. 1906, 34 Stat. 2905, Treaty Series 456. Geneva Convention Concerning Upper Silesia, 15 May 1922. Geneva Convention on the High Seas, 29 Apr. 1958, 450 U.N.T.S. 11. Hague Convention (XII) relative to the Creation of an International Prize Court, 18 Oct. 1907 (not in force). International Convention on the Elimination of All Forms of Racial Discrimination, 7 Mar. 1996, 660 U.N.T.S. 195. Lausanne Peace Treaty, Protocol VI, Convention Concerning the Exchange of Greek and Turkish Populations, 30 Jan. 1923. Lausanne Peace Treaty, Protocol XII, Protocol Relating to Certain Concessions Granted in Ottoman Empire, Lausanne, 24 July 1923. Statute and Rules of Court, First Edition (ser.D) (as amended on 31 July 1926). Statute of the International Court of Justice, 24 Oct. 1945, 1491 U.N.T.S. 199. Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920. Treaty of Berlin, 20 July 1878.

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Treaties and International Materials

Treaty of Paris, 30 Mar. 1856. Treaty of Peace Between The Allied and Associated Powers and Hungary, 4 June 1920 (Treaty of Trianon). Treaty of Peace with Germany, 28 June 1919 (Treaty of Versailles). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 Jan. 1967. United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 15 Nov 2000 (Palermo Convention). United Nations Convention on the Law of the Sea, 10 Dec. 1982. Vienna Convention on Consular Relations, 24 Apr. 1963, 596 U.N.T.S. 261. Vienna Convention on Diplomatic Relations, 18 Apr. 1961, 500 U.N.T.S. 95. Vienna Convention on Succession of States in Respect of Treaties, 23 Aug. 1978, 1946 U.N.T.S. 3, C.N. 354. 2008. Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 Mar. 1986, Doc. A/CONF.129/15. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331.

2

International Materials

Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), 14 Dec. 1960. Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice (1920) . G.A. Res. 171(II), Need for greater use by the United Nations and its Organs of the International Court of Justice, U.N. GAOR, 2nd Sess., U.N. Doc. A/459 and Corr. 1 (14 Nov. 1947). Int’l L. Comm’n, Documents of the second part of the seventeenth session and of the eighteenth session including the reports of the Commission to the General Assembly, reprinted in (1966) 2 Y. Int’l L. Comm’n, U.N. Doc. A/CN.4/SER.A/1966/Add.1. Int’l L. Comm’n, Draft articles on Diplomatic Protection with Commentaries, Rep. of the Int’l L. Comm’n (2006), reprinted in (2006) 2 Y. Int’l L. Comm’n, U.N. Doc. A/61/10. Int’l L. Comm’n, Draft articles on Law of Treaties between States and International Organizations or between International Organizations, with commentaries, Rep. of the Int’l L. Comm’n (1982), reprinted in (1982) 2 Y. Int’l L. Comm’n. Int’l L. Comm’n, Draft articles on Law of Treaties with Commentaries, Rep. of the Int’l L. Comm’n (1966), reprinted in (1966) 2 Y. Int’l L. Comm’n. Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), U.N. Doc. A/CN.4/732.

Treaties and International Materials

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Int’l L. Comm’n, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Rep. of the Study Group of the Int’l L. Comm’n (2006), U.N. Doc. A/CN.4/L.702. Int’l L. Comm’n, Second report on jus cogens by Dire Tladi, Special Rapporteur, Rep. of the Int’l L. Comm’n (2017), U.N. Doc. A/CN.4/706. Minutes of the Conference of State Signatories of the protocol of Signature of the Statute of the Permanent Court of International Justice, 1–23 Sept. 1926. Permanent Court of International Justice, 16th Report of the Permanent Court of International Justice, 15 June 1939–31 Dec. 1945 (ser.E) No.16 (Leiden: A. W. Sijthoff’s Publishing Company). Permanent Court of International Justice, Rules of the Court (ser.D) No. 1, 24 Mar. 1922. Permanent Court of International Justice, Rules of the Court (ser.D) No. 1, 24 Mar. 1922 (as amended on 31 July 1926). Preparation of the Rules of the Court, Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (ser.D) No. 2 (1922), 30 Jan.–24 Mar. 1922. Procès-Verbaux of the Proceedings of the Committee, 16 June–24 July 1920, with Annexes, Permanent Court of International Justice (ser.D). Rep. of the Int’l Law Comm’n, Report of the International Law Commission on the work of its Sixteenth Session, 11 July 1964, Official Records of the General Assembly, Nineteenth Session, Supplement (A/5809), Y. Int’l L. Comm’n (extract) (1964), A/CN.4/173. Statute of the Court – Rules of Court (as amended on 31 July 1926), 1st ed. (ser. D) No. 1. (Leiden:, Société d’Éditions A. W. Sijthoff, 1926) . The International Court of Justice: Handbook (2012), ISBN 978-92-1-071170-8 . United Nations, Summaries of Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice, ST/LEG/SER.F./1/Add.4 (2012).

3 Websites Jus Mundi . United Nations Treaty Series, Chapter XXIII: Law of Treaties . Website of the International Court of Justice, Basis of the Court’s jurisdiction . Website of the International Court of Justice .

Introduction “General principles of law recognized by civilized nations”1 (referred to here as ‘general principles’) are listed in Article 38(1)(c) of the Statute of the International Court of Justice as the third source of international law, after treaties and customary international law. Article 38(1) of the Statute provides that “[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply […] the general principles of law recognized by civilized nations”.2 Although classified by the acj in 1920 as one of the sources, general principles remain to this day unclear and undefined.3 Despite the absence of an agreement as to what general principles are, they are heavily interwoven into the fabric of international law4 and, together with treaties and customary international law, make up the international legal system. Many have attempted – and this work evidences that some still do – to define what general principles are.5 However, the variety of scholarly opinions on this topic keeps a consensus on general principles securely at bay. The rare works devoted to studying their application by international courts and tribunals, such as Bin Cheng’s 1953 General Principles of Law as Applied by International Courts and Tribunals and Fabian Raimondo’s 2008 General Principles of Law in the Decisions of International Criminal Courts and Tribunals, are either outdated or focus on the application of general principles by specialised international tribunals. This work is dedicated to the study of general principles as relied upon exclusively by the Permanent Court of International Justice (pcij) and the International Court of Justice (icj) – jointly referred to here as ‘the Court’ – in their decisions handed down between 1922 and 2018. Although there is plenty of 1 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). 2 Ibid. 3 Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 766; Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 9; Mendelson, ‘The Formation of Customary International Law’, offprint from the Recueil des Cours de l’Académie de La Haye en ligne, Vol. 272 (Leiden: Brill/Nijhoff, 1998), at 195. 4 See, e.g., Pellet, above n. 3, at 691-693. 5 The International Law Commission has also recently placed the topic of the General Principles of Law on their programme of work. See Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), U.N. Doc. A/CN.4/732.

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other international case law that could have been considered, this work prioritises the Court’s jurisprudence because Article 38(1)(c) belongs to the Court’s Statute. In other words, the acj drafted the provision on general principle primarily for the Court to use. A few excellent edited volumes on this subject, such as the General Principles and the Coherence of International Law6 and The Oxford Handbook of the Sources of International Law,7 have recently been published. However, unlike the majority of scholarship on the topic of general principles, the purpose of this book is to not only synthesise a plethora of scholarly opinions on general principles, but also provide an objective study of general principles based on a comprehensive analysis of the Court’s jurisprudence. As Gerald Fitzmaurice suggested in 1973, “[there is room for] some machinery for working out what these principles should comprise, and for imparting to them a much greater degree of clarity and certainty than they now have”.8 The ‘machinery’ used in the present study was to research the entire Court jurisprudence between 1922 and 2018 for its reference to general principles,9 without basing the research findings on scholarly opinion. Such approach brought about a new set of data through which general principles can be more clearly observed and – ultimately – understood. The research results of the Court’s reliance on general principles in its decisions given between 1922 and 2018 are described across nine self-standing chapters, divided into three parts, namely, theory (Part 1: Chapters 1 to 5), practice (Part 2: Chapters 6 to 9) and the collection of all general principles (Part 3: Digest of general principles ascertained between 1922 and 2018). Part 1, entitled ‘General Principles in Theory’, opens the discussion on general principles by revising the drafting history of Article 38(1)(c) of the Court’s Statute (Chapter 1). The work of the Advisory Committee of Jurists (acj) in 1920 was instrumental to the inclusion of general principles among the sources of international law. As the minutes of the acj’s meetings attest, this source 6 Andenæs, Fitzmaurice, Tanzi and Wouters (eds), General Principles and the Coherence of ­International Law (Leiden: Brill/Nijhoff, 2019). 7 Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (­Oxford: Oxford University Press, 2017). 8 Gerald Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today’, First Part of an Abstract of a Special Report, Institute of International Law (Rome, 1973), at 994. 9 The research methodology is explained in Chapter 6 and in Đorđeska, ‘General principles of law recognized by civilized nations: method, inductive-empirical analysis and (more) “­scientific” results’, in Deplano (ed.), Pluralising International Legal Scholarship: The Promise and Perils of Non-Doctrinal Research Methods (Cheltenham: Edward Elgar Publishing, forthcoming).

Introduction

3

was originally incepted as rules of international law (as opposed to principles). Beyond the many disagreements on this source, the acj seemed to agree that the purpose of including general principles alongside treaty and customary international law was to provide the then-forthcoming Permanent Court of International Justice (pcij) with a useful tool for solving international disputes. In further elaborating on this idea, Chapter 2 discusses the Court’s ability to create international law and the place of general principles in international judicial law-making. The often-asked question ‘what are general principles?’ is answered in Chapter 3 across four conclusions. The answers to questions such as ‘are general principles norms of international law?’, ‘to whom do general principles apply?’ and others are based on the findings in the Court’s jurisprudence and complemented with scholarly writings whenever possible.10 Chapter 4 presents an innovation – the ‘Cube’. The ‘Cube’ is a visual way of categorising and ascertaining general principles, its sides representing the six characteristics each general principle may have. General principles may be of three types (substantive, procedural and interpretative) and may have one, two or even three underpinnings (domestic, international and judicial). The positioning of general principles within the ‘Cube’ depends on their unique set of characteristics. Although not an exact scientific model, the ‘Cube’ demonstrates that all general principles – no matter how diverse – belong under the same Article 38(1)(c) umbrella. General principles are a source independent of treaties and customary international law. Chapter 5 analyses the relationship of general principles with treaties and customary international law and puts forward the canons of supersession among them. It briefly considers general principles vis-à-vis other source-related notions, such as ex aequo et bono, equity and jus cogens, before acknowledging the existence of ‘other rules’ in the Court’s jurisprudence, i.e., norms of international law that do not seem to be based on any of the three traditional sources of Article 38(1) of the Court’s Statute. Part 2 – ‘General Principles in Practice’ – analyses the Court’s application of general principles in its jurisprudence between 1922 and 2018. After exploring the existence of any scholarly methods and the Court’s approach to ascertaining general principles, Chapter 6 describes the research methodology that was 10

The plethora of scholarly works considered here is available in English. Scholarship although seemingly in favour of the Anglo-Saxon word, constituted only a means of comparing the findings based on the Court’s jurisprudence with the doctrinal views, and it did not inform the analysis of the Court’s reliance on general principles. Scholarly works in other languages, namely, French, German, Hebrew, Italian, Polish, Slovene and Spanish, are listed in the section Further Reading in Appendix ii.

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Introduction

used in gathering 156 general principles ascertained across 171 decisions and synthetises the findings in a number of figures.11 Chapters 7 and 8 provide an overview and examples of the application of general principles in the pcij’s and the icj’s jurisprudence, respectively. Chapter 7 considers the pcij’s reliance on 33 selected general principles (ascertained between 1922 and 1940), while Chapter 8 discusses 14 selected general principles relied upon by the icj between 1948 and 2018, some of which overlap with those ascertained by the pcij. The general principles analysed in Chapters 7 and 8 – divided into substantive, procedural and interpretative general ­principles – were selected at random to portray an image of each Court’s reliance on this source of international law. The last chapter, Chapter 9, is a case-study of the general principle of diplomatic protection and its evolution through the Court’s decisions given between 1924 and 2012. The Court’s continued reliance on this (procedural) general principle demonstrates not only the continuity between the pcij’s and the icj’s jurisprudence but also showcases the evolution of diplomatic protection’s elements over time. The book concludes by suggesting a new wording for the Article 38(1)(c) source, namely, the ‘legal principles and rules recognized by the Court for the entire international community’, which more clearly reflects the general principles’ nature and role in the international jurisprudence. Regardless of whether the formulation of Article 38(1)(c) changes or not, the general principles’ future rests with the international community’s (more scientific) cooperation. Part 3 contains the ‘Digest of General Principles ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018)’ – a collection of the 156 general principles ascertained in the Court’s decisions handed down between 1922 and 2018. Relevant for both researchers and practitioners, the Digest matches each general principle with the relevant excerpts of the Court’s decisions that refer to it. The Digest is meant to provide objective information that can be subject to independent assessments of the nature, role and evolution of general principles over time. As Albert Einstein reportedly stated in 1926, “[w]hether you can observe a thing or not depends on the theory which you use. It is the theory which

11

This study finds that the Court between 1922 and 2018 ascertained at least 156 general principles. See also Chapter 6, ‘Unintentional omissions of general principles’, at 214–216. All 156 general principles ascertained by the Court are listed in the Digest.

Introduction

5

­decides what can be observed”.12 The change in the research ‘theory’ and the resulting general principles presented in this book may, over time, also bring a renewed perspective on the source of international law, currently known as “the general principles recognized by civilized nations”.13 12 13

Fullbrook, ‘To observe or not to observe: Complementary pluralism in physics and economics’, Real-world Econ. Rev. 62 (2012), at 20. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c).

Part 1 General Principles in Theory

∵

Chapter 1

Origins of the General Principles Were general principles always part of international law? Several scholars believe they evolved from natural law and transformed into positive law with the rise of international jurisprudence. Others place the emergence of general principles in 1920, when a group of ten jurists from around the world – the Advisory Committee of Jurists – categorised the sources of international law for the first time in what became Article 38 of the Statute of the Permanent Court of International Justice, now Article 38(1) of the Statute of the International Court of Justice. This chapter takes the latter view and revisits the genesis of Article 38(1)(c) of the Court’s Statute from draft produced by the Advisory Committee of Jurists to the 1945 adoption of the Statute of the International Court of Justice. Besides covering in detail the 1920 discussion on general principles, this chapter sketches the state of (non-existence of) general principles as the third source of international law before 1920 and their relation to natural and positive law. 1.1

History of Article 38 of the pcij Statute

In 1920 the League of Nations tasked the Advisory Committee of Jurists (acj) with creating rules for the establishment of the Permanent Court of International Justice (pcij), the first permanent international tribunal to exist. This new Court would be able to decide based on “a body of law known in advance”.1 Among the provisions the acj drafted was Article 35 – currently Article 38 – in which it officially classified the sources of international law for the very first time. The 1920 classification remains unchanged to this day. The acj was composed of ten independent jurists: Édouard Descamps (from Belgium) (also the President of the Committee), Minneichiro Adatci (from Japan), Rafael Altamira (from Spain), Clovis Bevilaqua, (replaced by Raoul Fernandes, both from Brazil), Francis Hagerup (from Norway), Albert de Lapradelle (from France), Bernard Loder (from the Netherlands), Lord Phillimore (from England), Arturo Ricci-Busatti (from Italy), and Elihu Root (from 1 Brown Scott, ‘Advancement of International Law Essential to an International Court of ­Justice’, 15 Proc. Am. Soc. Int’l L. Ann. Mtg. (1921) 21, at 27.

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Chapter 1

the United States). After the ­establishment of the pcij, Altamira, Adatci and Loder joined the Court as judges, the last even serving as its Vice-President.2 The Advisory Committee took up its task of drafting the Court’s Statute after its first informal meeting on 15 June 1920.3 The sessions took place between 16 June and 24 July 1920. Interestingly, the Committee dedicated more time to structural questions on nomination of judges, the composition of the Court and its compulsory jurisdiction than to classifying the substantive sources of international law.4 In fact, the Committee drafted Article 35 (later Article 38) over the course of three brief meetings between 1 and 3 July, without discussing all the questions that had been raised.5 However, it is precisely its work on this Article – and on the general principles in particular – that makes Artilce 38 by far the most controversial of the Statute’s provisions to date.6 The members of the acj were national lawyers and jurists whose “conception of the content of international law would almost unavoidably have been coloured by national tendencies and traditions”.7 Indeed, Hammarskjöld’s ­reports speak of the stark difference of opinion between Descamps – a continental jurist – on the one hand, and Phillimore and Root – both common law jurists – on the other.8 This rift found its expression especially in the drafting of Article 35. 2 See also Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co. 1943), at 115–116. Spiermann provides a rich and informative analysis of the Committee’s work on the drafting of the pcij Statute, basing his account on unpublished reports by Åke Hammarskjöld who was assisting the League of Nations’ Under-SecretaryGeneral Dionisio Anziliotti (later also a pcij judge) at the acj sessions. Spiermann, ‘“Who attempts too much does nothing well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, 73 Brit. Y. of Int’l L. 1 (2003), at 190, 191 (noting that “Hammarskjöld’s private and confidential reports […] were rich on details of the work of the Advisory Committee”). See also Malgosia Fitzmaurice, ‘The History of Article 38 of the Statute of the International Court of Justice’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). 3 Spiermann, above n. 2, at 191, 200–201. 4 See Procès-Verbaux of the Proceedings of the Committee, 16 June-24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 101 (Adatci); Spiermann, above n. 2, at 201 (noting that the Committee “spent the first week dealing almost exclusively with the question of nomination of judges”). 5 See Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 281–346. 6 Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 286; Mendelson, ‘The Formation of Customary International Law’, offprint from Recueil des Cours de l’Académie de La Haye en ligne, Vol. 272 (Leiden: Brill/Nijhoff, 1998), at 369. 7 Spiermann, above n. 2, at 240. See also ibid., at 259. 8 Ibid., at 213.

Origins of the General Principles

11

The first version of Article 35 was put forward by Descamps, who proposed to word it as: [t]he following rules are to be applied by the judge in the solution of international disputes; they will be considered by him in the undermentioned order: 1. conventional international law, whether general or special, being rules expressly adopted by the states, 2. international custom, being practice between nations accepted by them as law; 3. the rules of international law as recognized by the legal conscience of civilized nations; 4. international jurisprudence as a means for the application and development of law.9 Descamps’ proposal does not mention ‘the general principles of law recognized by civilized nations’. Instead, the third source of international law was initially termed ‘the rules of international law as recognized by the legal conscience of civilized nations’. Descamps’ statement that “directly we try to create rules of this kind [in paragraph 3] to define and at the same time limit the powers of judges”10 attests to the novelty of this source, as no such international court as the then-forthcoming Permanent Court of International Justice had previously existed and, therefore, such rules (i.e., paragraph 3) had not previously been needed. Descamps’ listing of a third, new source of international law after treaties and customary international law was progressive. The fact that he referred to the rules in paragraph 3 as ‘of international law’ also clearly indicated that the third source, regardless of where the Court would identify these rules, belonged to the sphere of international law. The two common-law jurists, Root and Phillimore, were alarmed at Descamps’ proposal.11 They did not support the idea that the Court would be able to create new rules, as the courts in common-law systems do. According to Phillimore, Descamps’ third paragraph “‘gave the Court a legislative power’”.12

9 10 11 12

Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 306 (Annex no. 3). Ibid., at 322 (emphasis added). Spiermann, above n. 2, at 214. Yotova, above n. 6, at 287 (quoting Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 295).

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Chapter 1

He argued that “legislation in matters of international law could only be carried out by the universal agreement of all States”.13 Root similarly stated that “[i]f these clauses [third and fourth paragraph] were accepted, it would amount to saying to the States: ‘You surrender your rights [to the Court] to say what justice should be’”.14 Root “could not understand the exact meaning of clause [paragraph] 3”15 and commented that the scope of Descamps’ proposal for paragraph 3 was inconclusive and unclear.16 As Spiermann notes, Root “repeatedly stressed that States would only accept the Permanent Court’s compulsory jurisdiction if the sources to be employed by it were well defined”.17 The Minutes of the Advisory Committee meetings suggest that Root “feared that if the committee [of Jurists] made innovations the nations would not accept its project”.18 However, Loder rejected Root’s concern as unfounded and noted that “[t]he Covenant [of the League of Nations] intended to establish the Permanent Court of International Justice to apply [and to develop] international law”.19 Root and Phillimore amended Descamps’ proposal and distributed their suggestion among the members of the Committee in secret, without informing Descamps, who was the Committee’s President. Doing so constituted a breach of the Committee’s procedure, for which Root later apologised.20 Their proposal was worded as follows: [t]he following rules are to be applied by the Court within the limits of its competence, as described above, for the settlement of international disputes; they will be considered in the undermentioned order: 1. conventional international law, whether general or special, being rules expressly adopted by the States which are parties to the dispute, 2. international custom, being practice between nations accepted by them as law; 3. the general principles of law recognized by civilized nations;

13 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 295. 14 Ibid., at 294. 15 Ibid., at 293. 16 Ibid., at 293–294. 17 Spiermann, above n. 2, at 214. 18 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 294. 19 Ibid. 20 Ibid., at 308 (Root noting that “[i]n the future he would not fail to comply with the rule just mentioned by the President”).

Origins of the General Principles

4.

13

the authority of judicial decisions and the opinions of writers as a means for the application and development of international law.21

Root and Phillimore suggested that paragraph 3 of Article 35 be worded as ‘the general principles of law recognized by civilized nations’, instead of ‘the rules of international law as recognized by the legal conscience of civilized nations’, as originally proposed by Descamps. Spiermann recounts that Root warmed to the formulation of ‘general principles of law’ because it had been “based on a ruling of the Supreme Court of the United States”.22 Supportive of this assertion is the view of Root’s assistant, James Brown Scott, that the United States Supreme Court was “‘the prototype of an international court of justice’”.23 Root and Phillimore also removed the reference to ‘legal conscience’.24 Despite the substantial change to paragraph 3 that the Anglo-American pair introduced, they did not explain how their proposal changed the content and the idea behind the third source of international law, originally put forward by Descamps. The Minutes of the Advisory Committee meetings note, however, “that by ‘general principles of law’ [Phillimore] had intended to mean ‘maxims of law’”.25 However, Root’s and Phillimore’s interpretation of paragraph 3 carried the same weight as the interpretation of other Committee members. Phillimore and Root agreed that the third source is not limited to the Court’s identification of norms in domestic law. Indeed, Phillimore “wished […] to add to the [Descamps’ original] draft after the words ‘rules of international law’ the following words: ‘from whatever source they may be derived’”.26 Root similarly viewed paragraph 3 as providing for norms of international law, as he “did not think that it was disposed to accept the compulsory jurisdiction of a Court which would apply principles, differently understood in different countries”,27 because “‘[n]ations will submit to positive law, but will not submit to such principles as have not been developed into positive rules supported by an accord between all States’”.28 Phillimore even suggested that the third source of international law be recognised “through custom”.29 21 22 23 24 25 26 27 28 29

Ibid., at 344 (Annex no. 1) (emphasis added). Spiermann, above n. 2, at 217. Ibid., at 217, footnote 173 (referring to Brown Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists (Washington DC: The Endowment, 1920), at 107–111). Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 344 (Annex no. 1). Ibid., at 335. Ibid., at 295. Ibid., at 308; Spiermann, above n. 2, at 2014; Yotova, above n. 6, at 290–291. Spiermann, above n. 2, at 214. Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 334.

14

Chapter 1

Besides amending paragraph 3, Root and Phillimore also introduced in the chapeau of Article 35 the idea of the Court as opposed to the idea of individual international judges, to which Descamps’ proposal referred. Their proposal referred to the ‘opinions of writers’ (later replaced with ‘teachings of the most highly qualified publicists’) in paragraph 4 alongside ‘judicial decisions’. Root and Phillimore removed the reference to ‘international jurisprudence’ in paragraph 4 and replaced it with ‘judicial decisions’, but retained the reference to international law in the same paragraph. Unlike Article 35 paragraph 4, which did not come to represent a fullyfledged source of international law but was reduced to a means of interpretation of international law by the acj,30 paragraph 3 retained its status as a source of international law, alongside treaties and customary international law. The draft of Article 35 as it emerged from the acj was the result of an ‘unsuccessful’ compromise rather than an agreement among the members.31 ­Although there are no official records of the Committee’s first and second readings of the draft Statute, Hammarskjöld’s records allegedly note that the sessions were turbulent.32 Just before the Committee concluded its work, he observed that ‘everybody admits that it is a scandal. During the reading of Lapradelle’s Report it has become perfectly clear that the majority of the members do not know in the least what they have signed: there are as many interpretations of the principal points as there are members’.33 A telling testament to lack of clarity among the members on the ‘general principles of law’ is perhaps the fact that de Lapradelle during the very voting on the final draft proposed a new formulation for Article 35, paragraph 3, namely, ‘the general principles of law recognized by civilized Nations as interpreted by judicial decisions and by the teaching of the most highly qualified publicists of the various countries’.34 Ultimately, de Lapradelle and Hagerup abstained from voting, while Ricci-Busatti cast his vote against adopting article 35.35 30 31 32 33 34 35

De Lapradelle even wished to omit from Article 35 the reference to doctrine and judicial decisions. Spiermann, above n. 2, at 236. Spiermann, above n. 2, at 242. Ibid., at 237 (quoting Hammarskjöld’s report). Ibid., at 239 (quoting Hammarskjöld’s report). Yotova, above n. 6, at 290. Spiermann, above n. 2, at 239; Yotova, above n. 6, at 290.

Origins of the General Principles

15

The debate on the sources of international law continued at the Sub-­ Committee of the Third Committee of the First Assembly of the League of ­Nations. Formageot, after receiving the acj’s draft pcij Statute, suggested reformulating paragraph 3 as ‘the general principles of law and justice’.36 Politis suggested adding to paragraph 3 the sentence that the Court should have “‘a right to apply the general principles of justice only by agreement between the parties’”.37 Taking Politis’ suggestion into consideration, Formageot proposed adding another sentence to paragraph 3, namely, that “‘[t]his provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto’”.38 Eventually, the League of Nations decided not to make any changes to paragraph 3 and retained the formulation as provided by the acj.39 Formageot’s second proposal was accepted; however, the League of Nations added it to paragraph 4 and not to paragraph 3 of the draft Statute. The sentence ‘this provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto’ was in 1945 removed from paragraph 4 and included in a stand-alone second paragraph of Article 38 (previously draft Article 35) at the adoption of the Statute of the International Court of Justice in San Francisco.40 In its revision of draft Article 35, the League of Nations removed from the chapeau the terms ‘rules’, ‘within the limits of its jurisdiction as defined above’ and ‘in the following order’.41 Contrary to what the acj had intended, the League dispensed with the notion of hierarchy in the Court’s application of the sources of international law.42 During the Assembly’s revision of the pcij Statute, the British government expressed its opposition to the idea of judicial law-making, as it had already done in 1909 by withholding its assent to the London Declaration establishing 36 37 38 39 40 41 42

Spiermann, above n. 2, at 249. Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 689 (referring to Politis’ view); Spiermann, above n. 2, at 249. Spiermann, above n. 2, at 249. Spiermann, above n. 2, at 249. Cf. Pellet, above n. 37, at 689. Spiermann, above n. 2, at 248. See e.g., Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 306, 344 (the two Committee proposals). Cf. ibid., at 332 (Phillimore noting that the judge “should determine what rules apply, in the order in which they present themselves to his mind”; Ricci-Busatti not approving the expression ‘ordre successif’) and at 337 (Ricci-Busatti noting that the judge could resort to paragraph 3 before considering paragraphs 1 and 2).

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the Prize Court (that never came into existence).43 The Assembly of the League of Nations took the British proposal for amending paragraph 4 of the draft pcij Statute on board, and accordingly limited the paragraph 4 reference to ‘the authority of judicial decisions’ with the ‘provisions of Article 59’.44 The Assembly also explicitly classified paragraph 4 as ‘subsidiary means for the determination of rules of law’, confirming the Advisory Committee’s position. By adopting the acj’s work on 13 December 1920, the League of Nations renumbered draft Article 35 as Article 38 of the Statute of the Permanent Court of International Justice.45 The Statute was opened for signature on 16 December 1920.46 Article 38 was briefly discussed again at the 1945 San Francisco conference at the adoption of the United Nations Charter and the Statute of the International Court of Justice. However, “[n]o discussion took place […] about the reference in the icj Statute to ‘general principles of law recognized by civilized nations’”.47 Although considered as not well drafted, Jules Basdevant – the French delegate to the Informal Inter-Allied Committee – argued that Article 38 worked well in practice and that “it would be difficult to make a better draft”.48 The Chilean delegation did, however, propose to clarify Article 38(1)(c) by suggesting the inclusion of a clear reference to international law. As Pellet reports, “[t]his proposal was considered unnecessary given the fact that Art. 38 had always been understood to imply a clear mandate to apply international law”.49 As its proposal for amending paragraph 3 had not been accepted, Chile proposed to amend the chapeau of Article 38 instead, from ‘the Court shall apply’ to ‘the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply’.50 According to Tunkin, this amendment was meant to clarify that general principles indeed belong to 43

Brown Scott, above n. 1, at 24 (noting that the British were not happy with the idea that a tribunal would have “the power of deciding what principles should be applied if there were no principles generally recognized”). 44 Spiermann, above n. 2, at 243 (referring to Arthur Balfour’s statement). 45 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920. 46 Pellet, above n. 37, at 689; Rosenne, ‘Permanent Court of International Justice (pcij)’, Max Planck Encyclopedia of Public International Law (2006), at ¶7 (also noting that the Protocol of Signature entered into force on 1 Sept. 1921). See also Spiermann, above n. 2, at 250. 47 Gaja, ‘General Principles of Law’, Max Planck Encyclopedia of Public International Law (2013), at ¶4. 48 Pellet, above n. 37, at 689 (citing the Washington Committee of Jurists). 49 Ibid. at 690. 50 Ibid.

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17

the realm of international law and are not solely “principles ‘common to all ­civilised nations’”.51 Other scholars agree that the amendment of the chapeau of Article 38 was merely of a cosmetic nature.52 Regardless of the wording of Article 38(1)(c), which remained unchanged after the adoption of the icj Statute, general principles have been accepted as a source of international law from the very outset. Although Article 38(1)(c) does not refer to international law explicitly, Article 38(1)’s chapeau clarifies the nature of all three sources, general principles included, as sources of international law. General principles have long been misunderstood due to their formulation as ‘general principles of law recognized by civilized nations’. However, as the drafting history of the Statute of the Permanent Court of International Justice demonstrates, the formulation was neither unanimously accepted nor uniformly interpreted by its very drafters. 1.2

The Advisory Committee of Jurists’ Debate on Draft Article 35(3)

The acj’s complex discussion on the definition and nature of the general principles first listed in Article 35(3) deserves additional attention. This section provides a detailed insight into the opinions of the members of the Committee on general principles expressed during the debates and evidences the numerous points concerning paragraph 3 that were left open to interpretation. Root and Phillimore amended Descamps’ proposal on the sources of international law, and in particular paragraph 3 of the draft Article 35. Descamps’ ‘rules of international law as recognized by the legal conscience of civilized nations’ turned into ‘general principles of law recognized by civilized nations’. This seemingly substantial change was, however, a change in the wording but not in the content and function the provision would play in international jurisprudence. Although paragraph 3 was amended to refer to ‘principles’ and not ‘rules’, the chapeau of draft Article 35 continued to provide – also in Root’s and Phillimore’s proposal – that ‘the following rules are to be applied by the Court

51 52

Gaja, above n. 47, at ¶6 (citing Tunkin). Pellet, above n. 37, at 690; Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 21; Herczegh, General Principles of Law and the International Legal Order (Budapest: Akadémiai Kiadó, 1969), at 18.

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within the limits of is competence’.53 As the Article 35 chapeau continued to describe all sources listed therein, paragraph 3 was not disassociated from ‘rules’. Compared to virtually no discussion on treaties (paragraph 1) and a brief debate on customary international law (paragraph 2),54 the debate about the general principles revealed a great difference of opinion among the Committee members.55 De Lapradelle, for example, was in favour of a simple phrase describing paragraph 3, “such, for example, as ‘the general principles of law’, without indicating exactly the sources from which these principles should be derived”.56 Hagerup argued that the formulation should be “as little theoretical as possible. After all, they [the Committee] now must avoid the laying down of a formula which would limit the activity of the Court”.57 Ricci-Busatti unsuccessfully proposed that the formulation ‘general principles of law’ include the notion of ‘principles of equity’.58 More drastically, de Lapradelle suggested that customary international law and general principles “ought to change place”59 in the Court’s draft Statute. He reasoned that “[i]f customary law had already been dealt with, from whence could general principles be derived, unless it were from the reading of judicial decisions and writers?”.60 Fernandes attempted to pour oil on the lack of agreement among the Committee members on the nature and formulation of paragraph 361 by summarising the Committee’s position on Article 35(3). He affirmed that reformulating paragraph 3 from ‘rules of international law’ to ‘general principles of law’ did not change the source’s content as originally proposed by Descamps.62 The 53

Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 344 (Annex no. 1; emphasis added). 54 Spiermann, above n. 2, at 214. 55 Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 94 (noting that “the Advisory Committee of Jurists who prepared the draft of the pcij Statute were themselves divided”). 56 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 336. 57 Ibid., at 297. 58 Ibid., at 332. 59 Ibid., at 335. 60 Ibid. 61 White, ‘Equity: A General Principle of Law Recognized by Civilized Nations?’, 4 L. & Justice J. 1, 103 (2004), at 109; Yotova, above n. 6, at 290 (arguing that “the question as to the source of the general principles of law was deliberately left open as was their relationship with customary international law”). 62 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 294 (Loder interpreting Descamps’ proposal and noting that “it was precisely the Court’s duty to develop law, to ‘ripen’ customs and principles universally recognised, and to crystallise them into

Origins of the General Principles

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­ dvisory Committee may have left paragraph 3 open to interpretation on purA pose because, as Herczegh notes, it “was not entrusted with general codification of international law, but with framing the statute of the Permanent Court of International Justice”.63 Despite their differences, the Committee members identified several norms that could be considered as belonging to Article 35(3) of the draft Statute. As Spiermann writes, “Altamira, Hagerup and Loder and also Lapradelle and ­Ricci-Busatti stressed the principle of sovereign equality, ‘the Magna Carta of the smaller States’”.64 Other suggested ‘principles’ were also that everything which is not forbidden is allowed, that a stronger rule takes precedence over a weaker, the general principle of res judicata, certain principles of equity and justice, lex specialis derogat legi generali, good faith, sovereign equality, the principle of justice in the application of law and other procedural principles.65 The Court in its later jurisprudence confirmed only some of these norms as general principles. Ricci-Busatti considered that the Court would resort to general principles “in the absence of a positive rule of international law”.66 Hagerup noted that a third source would help the Court in non liquet situations, noting that there might be cases in which no rule of convention or general law was applicable. A rule must be established to meet this eventuality, to avoid the possibility of the Court declaring itself incompetent (non liquet) through lack of applicable rules.67 While most of the members envisaged paragraph 3 as a tool preventing the occurrence of non liquet situations, the Anglo-American jurists Root and

63 64 65 66 67

­positive rules”; emphasis added) and at 346 (Annex no. 2, Fernandes); Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambrige University Press, 1987), at 19 (noting that the acj “in adopting the formula ‘the general principles of law recognised by civilised nations’, […] were only giving a name to that part of existing international law which is not covered by conventions and custom stricto sensu”). Cf. Spiermann, above n. 2, at 217 (noting that “‘Root and Phillimore succeeded in persuading Descamps that the American formula was not so unlike his own as to make defeat too bad’”). Herczegh, above n. 52, at 98. Spiermann, above n. 2, at 202. See Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 314–315, 324, 335. Pellet, above n. 37, at 687. Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 296.

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­ hillimore advocated for the States’ legal certainty in international law.68 RathP er than filling the gaps of international law, Root would have preferred the Court to simply declare a non liquet, “for the ‘Court must not have the power to legislate’”.69 However, as Ricci-Busatti and de Lapradelle noted, adding paragraph 3 to Article 35 “did not necessarily exclude the possibility of a non liquet”.70 De Lapradelle even suggested adding a fifth paragraph to Article 35 that would provide for a solution in instances where the Court would not be able to solve the non liquet by relying on general principles.71 Ricci-Busatti opined that paragraph 3 did not give the Court the unfettered right to invent new norms, but it merely allowed the Court to “apply[] the general rules which permit the solution of any question”.72 The two common-law jurists seem to have countered the original proposal with their own because Descamps’ draft conferred on the Court the ability to adopt rules to which States had not agreed beforehand. The purpose of their ‘American formula’ of ‘general principles of law recognized by civilized nations’ was to limit the international law-making power of the first permanent international court. By drafting paragraph 3, Descamps intended to keep the Court’s decisions in line with objective justice and to avoid arbitrariness. Descamps opined that instead of giving more discretion to judges, paragraph 3 actually limited their liberty because relying on a third source of international law, in addition to treaties and customary international law, “would prevent them from relying too much on their own subjective opinion”.73 In Descamps’ view, paragraph 3 regulated the Court’s interpretation instead of conferring unfettered discretion when faced with a non liquet situation, as Root and Phillimore seemed to suggest. According to Loder, however, “‘it was precisely the Court’s duty to develop law, to ‘ripen’ custom and principles universally recognised, and to crystallise them into positive rules’”.74 Hammarskjöld, who observed the meetings of the Advisory Committee, reportedly noted that 68 69 70 71 72 73 74

See Brown Scott, above n. 1, at 27 (noting that the Court would decide based on “a body of law known in advance”). Pellet, above n. 37, at 686. Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 171. Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 336. Pellet, above n. 37, at 687; Spiermann, above n. 2, at 216. Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 311. Spiermann, above n. 2, at 214–215; Spiermann, above n. 70, at 170.

Origins of the General Principles

21

‘[i]t is for the Court itself to make out what is international law, and it is in this domain that the jurisprudence of the Court will have its greatest importance as a means of codifying the law of nations’.75 Including a third (new) source of international law in Article 35 in effect precluded the then-forthcoming pcij from rendering arbitrary decisions by providing another set of norms upon which the Court could rely when no treaty or customary rule was available. For Descamps the source of international law stated in paragraph 3 ensured that the judges’ solution was “‘approved by universal public opinion’”.76 He added that [a judge] must be saved from the temptation of applying these principles as he pleased. For that reason he [Descamps] urged that the judge render decisions in keeping with the dictates of the legal conscience of civilised peoples and for this same purpose make use of the doctrines of publicists carrying authority.77 Phillimore proposed that general principles be identified in foro domestico.78 De Lapradelle was in favour of not specifying where these general principles are to be found and preferred “to keep the formula open ‘without indicating exactly the sources from which these principles should be derived’”.79 He also noted that when these general principles were identified in domestic legislation, they would most likely have to be obtained by unanimous or quasi-­ unanimous support.80 The high threshold of universality in adopting general principles from domestic legal systems was later interpreted as ensuring the legal certainty for States.81 Members of the Advisory Committee recognised, however, that domestic law does not suffice in regulating inter-State relations, and that the reference to ‘general principles of law’ did not entitle the Court “to decide on a basis other 75 76 77 78 79 80 81

Spiermann, above n. 2, at 218. Yotova, above n. 6, at 288 (quoting Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 318). Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 318–319. Ibid., at 335. Yotova, above n. 6, at 289–290 (referring to Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 336 (de Lapradelle)). Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 335 (de Lapradelle). Hudson, above n. 2, at 195 (referring to Root’s comment that the Court should apply universally recognised rules that are not differently understood in different countries).

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than international law”.82 The idea that general principles derive only from domestic law – in foro domestico – is limiting because “international law covers legal issues that national lawyers accept cannot be conventionally dealt with by a national legal system”.83 Both the initial (Descamps’) and the amended (Root’s and Phillimore’s) proposals for paragraph 3 contains the expression ‘recognized by civilized nations’. The Advisory Committee did not interpret this term. Schwarzenberger argues that only those general principles that “are recognised by civilised nations form the third of the law-creating processes as defined in Article 38 of the Statute of the World Court”.84 But what does the expression ‘recognized by civilized nations’ mean? Scholars usually associate the notion of ‘civilized nations’ with that of States’ domestic law. Pellet, for example, considers that correlating general principles to domestic law is “‘a guarantee that those principles do correspond ‘to the dictates of the legal conscience of civilised nations’”.85 However, paragraph 3 refers explicitly to nations and not to States. The acj could have used the notion of ‘States’ (which is related to the idea of domestic law) in describing general principles. However, the Advisory Committee did not use the term ‘States’ as it did, for example, in paragraph 1 in relation to treaties.86 Instead, it used the term ‘nations’ in describing both customary international law in paragraph 2 and general principles in paragraph 3. The League of Nations later removed the reference to ‘nations’ from paragraph 2, and instead added it to paragraph 4 when describing the ‘most highly qualified publicists of the various nations’. All other provisions of the Court’s Statute refer to ‘States’ and not also to ‘nations’.87 Not all ‘States’ are ‘nations’. The term ‘nations’ seems to encompass a broader category of international actors than the term ‘States’ does.88 For example, 82 83 84 85 86 87 88

Gaja, above n. 47, at ¶6; Yotova, above n. 6, at 288. Spiermann, above n. 2, at 260. Spiermann also writes that in 1920 “national lawyers [were] finding national law insufficient to regulate issues that are international in the sense of being of interest to two or more States”. Ibid., at 218. Schwarzenberger, ‘The Fundamental Principles of International Law’, offprint from the Recueil des Cours de l’Académie de La Haye en ligne, Vol. 087 (Leiden: Brill/Nijhoff, 1955), at 197. Pellet, above n. 37, at 767. See the two proposals considered by the Committee. Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 306 (Annex no. 3), 344 (Annex no. 1). See, e.g., the Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, arts 34–36. According to Wheaton, the term ‘nations’ is broader than ‘civilised nations’. Wheaton, Elements of International Law: With a Sketch of the History of the Science (Philadelphia: Carey, Lea and Blanchard, 1836), at 41, 49 (referring to Grotius and Bynkershoek).

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‘nations’ that still do not belong to any particular ‘State’ are the Palestinian people,89 the Kurds, the Roma, Nigerian tribes or Indonesian islanders, to name a few.90 Similarly, Descamps related the term ‘civilized’ to ‘peoples’ rather than to ‘States’.91 Other expressions that could correspond to the term ‘nations’ and denote a source of international law that is applied to the entire international community are ‘humanity’, “the whole of mankind”92 or the international community as a whole.93 De Wet writes that [i]n spite of these ongoing doctrinal debates, it is generally accepted that the term ‘civilised nations’; today refers to all members of the international community. No state or group of states may be excluded on the basis of not being a civilised nation.94 In 1836, Wheaton observed that the difference between ‘civilised’ and ‘uncivilised’ nations was not the degree of roughness, as “[p]iracy was unblushingly practised by the most civilized nations which then existed”.95 It also seems that Wheaton equated the term ‘civilized nations’ with that of “[C]hristian nations”.96 Sykes observes that the term ‘civilized nations’ referred to Europe (and a handful of ‘white’ colonies or dominions), the United States of America, a few great Asian civilizations, and a scattering of

89

See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶49 (9 July) (referring to the “inalienable rights of the Palestinian people”; emphasis added). 90 See also Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 18. 91 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 324–325 (referring to ‘civilised peoples’). 92 See Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶53 (25 Sept.) (remembering “the great significance that [the Court] attaches to respect for the environment, not only for States but also for the whole of mankind”; emphasis added). 93 Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 807 (referring to the Barcelona Traction case); Yotova, above n. 6, at 282 (noting that “[t]he reference to ‘civilized nations’ could also be understood as pointing to the international community of states as a whole”). 94 De Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice’, xlvii Neth. Int’l L. Rev. 181 (2000), at 187. 95 Wheaton, above n. 88, at 1 (emphasis added). Thirlway suggests that the difference between ‘civilised’ and ‘uncivilised’ might have been in the level of the development of a particular legal system. Thirlway, above n. 55, at 95. 96 Wheaton, above n. 88, at 54 (referring to “civilized, christian nations”).

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i­ ndependent South American states’, excluding the laws and traditions of the rest – the ‘uncivilized’.97 Gaja accordingly notes that this term “appears to be based on the dated concept that only certain nations may be rightly called civilized”.98 Article 9 of the Court’s Statute contains a formulation similar to ‘civilized nations’, namely, the “main forms of civilization and the principal legal systems of the world”.99 In interpreting this provision, Adatci, the Japanese member of the acj, for example, stated that it refers also to “civilisation of the Far East” with Japan being its principal representative.100 The proposal that the expression ‘main forms of civilization and the principal legal systems of the world’ be described as “the geographical representation of the different continents”, put forward by the Colombian representative to the Third Committee of the First Assembly of the League of Nations, was rejected.101 The term ‘civilised’ appears in the Court’s jurisprudence when referring to a “civilizing purpose”102 and it could in this sense be interpreted as being ‘lawabiding’. Because “all [States and] nations are civilised”103 and are (at least aspiring to be) law-abiding, the term ‘civilized nations’ probably encompasses the entire international community.104 97

Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’, 49 Canadian Y. Int’l L. 3 (2011), at 17. See also Houben, ‘Principles of International Law Concerning Friendly Relations and Co-­ Operation Among States’, 61 Am. J. Int’l L. 3, 703 (1967), at 734–735 (referring to “obsolete legal concepts such as that of ‘civilized nations’”). 98 Gaja, above n. 47, at ¶2. 99 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 9. 100 Hudson, above n. 2, at 157, citing Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 136. 101 Ibid. 102 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May) (noting that “[t]he [Genocide] Convention was manifestly adopted for a purely humanitarian and civilizing purpose”; emphasis added). “[T]he ‘purely humanitarian and civilizing purpose’ of the [Genocide] Convention may be seen as being promoted by the fact that States are subject to that full set of obligations, supporting their undertaking to prevent genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶167 (26 Feb.). 103 Hudson, above n. 2, at 610. See also Bassiouni, above n. 93, at 768 (noting that “all MemberStates of the United Nations are ‘civilized’”); Pellet, above n. 37, at 769 (referring to the opinion of the acj). 104 Cf. Parry, above n. 90, at 9 (noting “the extraordinary profusion of international organizations or the extraordinary growth in the number of States”).

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How do ‘civilized nations’ (or, alternatively, the international community) ‘recognise’ general principles? The reference to ‘recognized by’ in paragraph 3 suggests that general principles are not adopted or identified by ‘nations’ themselves ex nunc, but are merely ‘recognized’ by them ex tunc. Instead, it is the Court, whose judges represent “the main forms of civilization and the principal legal systems of the world”,105 that recognises general principles, and it does so on behalf of the entire international community – the ‘civilized nations’. ‘Recognition’ could also imply that ‘civilized nations’ recognise the general principles after the Court has identified them. The acj attached three different verbs to each source of international law. In paragraph 1, the Committee stated that treaties are ‘adopted’; in paragraph 2 that customary international law is ‘accepted’, and in paragraph 3 that general principles (or rules of international law) are ‘recognized’. The League of Nations later changed the formulation of paragraph 1 from ‘adopted’ to ‘recognized’ when adopting the pcij Statute. The Committee’s use of these three verbs – adopted, accepted and recognised – reflects the scale of external participation in the Court’s application of each source of international law. The distinction between the active nouns ‘adoption’ and ‘acceptance’ on the one hand, and the more passive ‘recognition’ on the other, implies that general principles encompass norms that are not actively accepted but also norms that have not been rejected in States’ domestic laws.106 In other words, the term ‘recognized’ fosters the presumption that ‘civilized nations’ consented to the norm’s existence in international law. This ‘presumed consent’ provides that what had been rejected cannot be considered as adopted or accepted. In line with the States’ presumed consent to the existence of general principles, the Court ascertains general principles that have not been expressly rejected (and have therefore been consented to) by the ‘civilized nations’. 1.3

The Novelty of Post-1920 General Principles

While it is accepted that the Court’s Statute refers to three sources of international law,107 the classification of the sources of international law in draft

105 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 9. 106 Gaja, above n. 47, at ¶3, referring to Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 346. 107 Cheng, above n. 62, at 387–388.

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­ rticle 35 was considered to be a significant innovation.108 Unlike treaties and A customary international law, the reference to the so-called ‘general principles of law’ as a source of international law was absent in the international jurisprudence and scholarship available before the Advisory Committee’s work in 1920. Members of the Advisory Committee vehemently disagreed about the content, meaning, and formulation of paragraph 3. Paragraph 3 was ultimately the result of the Committee’s lukewarm consensus. This consensus was not based on pre-1920 jurisprudence or literature. The plethora of views among the Committee members held relative to paragraph 3 demonstrates that general principles were not a clear or distinct part of international law before their inclusion in the draft Article 35. The argument of the novelty of the third source of international law is also based on the fact that it was introduced into the pcij Statute to enable the first permanent international court to decide international disputes. No comparable international tribunal existed before 1920 for which such classification would be needed. Lloyd-Jones in his recent speech noted that pre-1920 arbitral tribunals might have considered a third source in rendering their awards; however, these arbitral tribunals began considering paragraph 3 as “declaratory of international law” only after the adoption of the pcij Statute.109 D’Aspremont argues that general principles may have existed before 1920, but were ‘reinvented’ and elevated into a source of international law only in 1920.110 Similarly, Berry observes that the third source of international law “­became prominent in international legal writing following their inclusion in Article 38 of the [pcij] Statute”.111 108 D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 168. Cf. Pellet, above n. 37, at 765; Cheng, above n. 62, at 23 (noting that “[t]he Article [35] introduced nothing new in substance”). 109 Lloyd-Jones, General principles of law in international law and common law, Speech at Conseil d’État, Paris (2018), at 4. See also Gaja, above n. 47, at ¶1 (noting that “Art. 38(c) pcij Statute gave great prominence to the role that general principles of law may play in international adjudication”). Cf. Pellet, above n. 37, at 765–766 (noting that “‘recourse to general principles of law was a characteristic feature’ of the arbitral awards prior to 1920”); d’Aspremont, above n. 108, at 163. See also Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), u.n.Doc. A/CN.4/732, at ¶89 (noting that the pre-1920 practice of international tribunals “constitutes the background against which Article 38, paragraph 3, of the Statute of the Permanent Court of International Justice was drafted”). 110 D’Aspremont, above n. 108, at 168. 111 Berry, Caribbean Integration Law (Oxford: Oxford University Press, 2014), at 172.

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The pre-1920 scholarship that refers to the sources of international law usually cited treaties and customary international law. D’Aspremont confirms that “general principles of law did not generally appear as a source of international law in classical treatises of the late nineteenth century and beginning of the twentieth century”.112 De Vattel in his 1758 treatise The Law of Nations, without referring to a third source of international law, explains that when a treaty did not apply customary international law filled that gap.113 Descamps’ proposal for a third source of international law, in which he did not refer to ‘principles’, indicates that any pre-1920 ‘principles’ were not meant to be included within the scope of this novel source of international law, originally termed ‘rules of international law’. General principles as drafted in Article 35(3) do not correspond to the principles that formed part of international law before the adoption of the Court’s Statute in 1920. The ‘principles’ referred to in the pre-1920 scholarship may be characterised as political or moral (i.e., non-legal) notions.114 Contemporary scholars note that pre-1920 international law was comprised of treaties, customs, political maxims, and “precepts and doctrines of natural law”.115 Natural law is for some the basis for the emergence of general principles. This view is to a certain extent justified in the position of the members of the acj that seemed to consider treaties and customary international law as representative of positive law, and they looked for additional sources (i.e., ‘general principles of law’) in bases beyond positive law.116 Along the same lines, Grotius reportedly noted that “‘except [for] the natural law, which is also called jus gentium, there is no other law which is common to all nations’”.117 If general principles are representative of norms recognised universally or by majority of nations, Grotius’ classification of natural law may encompass not only the

112 D’Aspremont, above n. 108, at 168. Cf. Pellet, above n. 37, at 765–766. 113 De Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Soveregins, with Three Early Essays on the Origins and Nature of Natural Law and on Luxury (1797, reprinted and edited by Liberty Fund, 2008), at 338 (writing that “[i]f, in default of treaties, custom has determined any thing in this matter, the nations between whom this custom is in force, out to conform to it”). 114 Honoré, ‘General Principles of Law by Giorgio Del Vecchio and Felix Forte’, 9 Philosop. Q. 36, 281 (1959), at 282 (referring to del Vecchio’s thesis). 115 Lesaffer, ‘Sources in the Modern Tradition: The Nature of Europe’s Classical Law of Nations’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 115. 116 Spiermann, above n. 2, at 218; Spiermann, above n. 70, at 167, 172–173 (implying that general principles were beyond the ‘positive’ law). 117 Wheaton, above n. 88, at 48 (quoting Grotius).

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l­ater-adopted third source of international law, but also customary international law. In comparison, Wheaton distinguished between natural law of nations and positive law of nations, the former representing rules of justice, and the latter containing conventional, customary and voluntary laws of nations.118 Unlike Grotius, Wheaton places general principles (or the third source of international law) in the positive – not the natural – law of nations. The reference to ‘justice and equity’ most commonly associated with natural law was adopted as part of the pcij Statute at the League of Nations only after the Advisory Committee had completed its work – and its drafting of paragraph 3 – and it was placed in paragraph 4 of Article 35 (ex aequo et bono), not in paragraph 3 which codified the general principles. Early scholarship suggests that there may have been three sources of international law before the adoption of the Court’s Statute in 1920. However, the third source listed in this scholarship does not necessarily correspond to the later-adopted ‘general principles of law’. As Brett observes, “the notion of the sources of international law cannot straightforwardly be applied to [early scholarship …] because they did not think of the jus gentium as ‘international law’ in the modern sense”.119 For example, in his 1758 The Law of Nations, de Vattel classified positive international law (as opposed to domestic law) into three sources, but he did not refer to any of the sources as ‘general principles of law’ (or ‘principles’). His classification was comprised of conventional law, which encompassed rules expressly agreed upon, customary law, which was represented by rules tacitly agreed upon, and voluntary law, which was comprised of rules of presumed consent.120 General principles could correspond to de Vattel’s third category of rules of nations’ presumed consent, especially if this category is interpreted to encompass rules that have been neither explicitly nor tacitly agreed upon but could nevertheless be considered to be recognised. However, de Vattel does not mention the phrase ‘general principles of law’ in his classification of sources of international law, which detaches the pre-1920 references to ‘principles’ from his third source of international law. In their pre-1920 reports submitted for the preparation of the Court’s Statute States were clearer that the third source of international law related to ‘general 118 Ibid., at 56–57. 119 Brett, ‘Sources in the Scholastic Legacy: The (Re)Construction of the Jus Gentium in the Second Scholastic’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 79–80. 120 De Vattel, above n. 113, at 78. See also ibid., at 79 (noting that the “maxims [of voluntary law] are devoted to the safety and advantage of the universal society of mankind”).

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principles of law’.121 However, their perception of ‘general principles of law’ was related mostly to the notions of justice and equity.122 For example, Germany suggested that pcij decisions be based on “international agreements, international customary law, and according to general principles of law and equity”.123 Similarly, Switzerland proposed that the forthcoming Court rely on agreements existing between the parties, principles of the law of nations, and justice and equity. Justice and equity would be applied when “there is on the matter no generally recognized rule of this law, or none recognized by the parties”.124 However, the States’ references to ‘principles’ expanded beyond the classification of the sources of international law. For example, the 1919 ­German-Austrian delegation used the expression ‘principles of international law’ to describe “general or special [law], existing between [the members of the League of Nations]”.125 Similarly, Article xxii of the Convention for the Establishment of a Central American Court of Justice referred to ‘principles of international law’ to denote international law that had not yet been codified.126 The “victory for the Anglo-American point of view”,127 i.e., reformulating the ‘rules of international law as recognized by the legal conscience of civilized nations’ into ‘general principles of law recognized by civilized nations’, marked the perception of the third source of international law for almost a century. Root and Phillimore may have intended to curb the potential of the new Court to create new rules of international law without having “the universal agreement by all States”.128 The change of draft Article 35’s formulation contributed to reducing – but it did not extinguish – the Court’s potential to create and rely 121 See Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice (1920) < https://archive.org/details/ documentspresent00leaguoft/page/n5 > (last visited on 20 May 2019). 122 Ibid., at 103 (point 28). 123 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 91 (Germany’s proposal for Article 35); Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice, above n. 121, at 129 (­Article 35). 124 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 91 (Switzerland’s proposal for Article 42). 125 Documents presented to the Committee relating to existing plans for the establishment of a Permanent Court of International Justice, above n. 121, at 131 (Article 12). 126 The Convention for the Establishment of a Central American Court of Justice, annexed to the documents presented in 1920, provided in Article xxii that “[t]he Court is competent to determine its jurisdiction, interpreting the Treaties and Conventions germane to the matter in dispute, and applying the principles of International Law”. Ibid., at 147 (emphasis added). 127 Spiermann, above n. 2, at 253. 128 Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 295 (Phillimore).

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on new norms belonging to the third source of international law. Despite the differences of opinion and the plethora of suggestions put forward, the Advisory Committee was in agreement that paragraph 3 was included among the sources to assist the pcij in its functioning.129 Léon Bourgeois, the President of the Council of the League of Nations, in his 1920 welcoming speech to the Advisory Committee of Jurists rightly lamented that “[i]nternational life tends to develop every day with an intensity which no one a century ago could have foreseen or dared to estimate”.130 While the acj were instrumental in categorising general principles among the sources of international law, the torch of their ascertainment has since passed to the Court. 129 Ibid., at 322–323 (Descamps). 130 Ibid., at 9; Spiermann, above n. 2, at 187–188 (footnote 3) and at 195–196.

Chapter 2

International Judicial Law-Making and the General Principles The Court’s primary task is that of solving international disputes.1 However, the United Nations General Assembly also noted that “it is […] of paramount importance that the Court should be utilized to the greatest practicable extent in the progressive development of international law”.2 Among other methods at its disposal, the Court develops international law by relying on general principles. This chapter outlines the ways and processes through which the Court develops international law (also termed here as international judicial law-­ making), including its reliance on general principles. General principles are the tools of international judicial law-making reserved for the Court – and not the States or scholars – to use. Ascertained in the reasoning section of the Court’s judgments and advisory opinions, general principles apply to the entire international community and are not limited by Article 59 of the Court’s Statute. States, although the primary ‘makers’ of international law, participate only ­indirectly in the Court’s ascertainment of general principles. The chapter concludes by describing the (reaffirming) relationship between the general principles and the Court, which demonstrates that the Court’s opinion matters most in ascertaining and developing the Article 38(1)(c) source. 2.1

International Law-Making and the Court

Throughout its jurisprudence, the Court has had a major role in developing international law.3 As it confirmed in one of its decisions,

1 The Permanent Court of International Justice (pcij) and the International Court of Justice (icj) are referred to here jointly as ‘the Court’. 2 General Assembly Resolution 171(ii), U.N. Doc. A/459 and Corr. 1 (14 Nov. 1947), at 103. 3 See, e.g., Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat, Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 790. The Court developed, for example, the law of the delimitation of the c­ ontinental

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_004

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there is no incompatibility with its judicial function in making a pronouncement on the rights and duties of the Parties under existing international law which would clearly be capable of having a forward reach.4 Although it does not legislate as national parliaments do,5 the Court’s interpretation of international law6 – including its ascertainment of the sources of ­international law – contributes to the development of international law. As a judicial organ,7 the Court is devoid of any political functions.8 When asked to

4

5 6

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shelf and the exclusive economic zone. See e.g., Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40, at ¶231 (16 Mar.) (observing that “the ­equitable principles/relevant circumstances rule […] has been developed since 1958 in case-law and State practice”). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶40 (25 July) (emphasis added). See also Thirlway, The International Court of Justice (Oxford: Oxford University Press, 2016), at 206 (noting that “[t]he Court […] achieves a great deal in the maintenance of legal stability and international peace, and in the development of international law”). See also Pellet, above n. 3, at 696. Skomerska-Muchowska, ‘Some Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law’, Polish Y. Int’l L. (2017), at 264 (noting that “[e]very application of law requires an act of interpretation, understood as the obvious necessity for a certain form of understanding”). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶18 (25 July) (noting that “[t]he Court […] as an international judicial organ, is deemed to take judicial notice of international law and it is […] required in a case falling under Article 53 of the Statute […] to c­ onsider on its own initiative all rules of international law which may be relevant to the settlement of the dispute”). See also ibid., at ¶40 (noting that the Court has “the power […] to take into consideration all relevant elements in administering justice between the Parties”); Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶45 (20 July) (considering “its true judicial functions” relevant to ­rendering an advisory opinion); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66, at ¶16 (8 July) (analysing its “judicial task” in relation to questions with political aspects); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶139 (26 Feb.) (addressing the Respondent’s claim of “‘the Court’s ultra vires exercise of its judicial functions’”). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶95 (26 Nov.) (noting that “the Court exercises purely judicial functions”). Cf. García-Salmones Rovira, ‘Sources in the Anti-Formalist Tradition’, in Besson, d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 213 (referring to the “government of judges”).

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resolve disputes with a political connotation,9 the Court’s competence extends only to deciding the legal questions at hand.10 The Court neither decides in abstracto,11 gives its opinion on a hypothetical situation,12 theorises13 nor does it give “approximations or ‘guidance’”.14 These may also be the reason why the Court has not “attempted to elaborate on the theory of the sources of international law or attempted to catalogue them”15 or given any guidance on the application of Article 38(1)(c).16

9

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶37 (24 May) (noting that disputes between States occur in a political context and that declining to resolve disputes with a political element “would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes”); Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶161 (16 Oct.) (acknowledging that its answer is assisting the General Assembly’s “determin[ation] [of] its future decolonization policy”). 10 Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶96 (10 Dec.) (confining its consideration to “juridical questions”). See also United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, ¶37 at (24 May). 11 Cf. Interpretation of the Statute of the Memel Territory, Judgment [1932] p.c.i.j. (ser.A/B) No. 49, at 311 (11 Aug.). 12 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 100, at ¶123 (17 Mar.) (noting that “it is not for the Court to determine the applicable law with regard to a hypothetical situation”). 13 Appeal Relating to the Jurisdiction of the icao Council (India v. Pak.), Judgment [1972] i.c.j. 46, at ¶22 (18 Aug.) (noting that “[it] does not wish to make any final pronouncement on the theory of the matter”). 14 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192, at ¶49 (10 Dec.) (but noting that “it is not to be supposed that all figures used in the Judgment would have to be regarded as absolute”). See also Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary ­Objections [1984] i.c.j. 392, at ¶99 (26 Nov.) (in referring to the Parties’ submissions the Court noted that “[it] has, it is said, recognized that giving such practical guidance [as to the effective control of situations of armed conflict] to the Parties lies outside the scope of the judicial function”). 15 Mendelson, ‘The International Court of Justice and the sources of international law’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), at 63. 16 Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 11–12 (noting that the Court’s jurisprudence “[did not] clarify the meaning of Article 38(1)(c)”).

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Scholars acknowledge that in the absence of an international parliament the Court is entitled to some international law-making capability.17 However, there are differences of opinion among the continental and common-law scholars, and potentially scholars belonging to other juridical families, about the extent to which the Court may create new rules of international law.18 While some opine that the Court’s “decision must be seen to emanate reasonably and logically from existing and previously ascertainable law”,19 others acknowledge that the international judicial law-making process is the “judicial re-writing of an obligation”20 or “substitution of one obligation for a different one”.21 In either case, students are reportedly “warned about new and ‘non-­ official’ international law-making processes”,22 some of which take place in the Court’s jurisprudence. Scholars have over the years used a great many terms in describing the ­so-called ‘law-making’ activity of the Court. From ‘making’ and ‘creating’ international law, to less-controversial ‘identifying’, ‘applying’ or ‘describing’ ­international law,23 scholars tend to agree that the Court more often than not authoritatively declares what international law is.24 Besson and d’Aspremont 17

Gerald Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today’, First Part of an Abstract of a Special Report, Institute of International Law (Rome, 1973), at 964; Pellet, above n. 3, at 790 (considering the Court as “one of the most efficient, if not the most efficient, vehicle for adaptation of general international law norms to the changing conditions of international relations”); Skomerska-Muchowska, above n. 6, at 260 (noting the “lack of a centralized [international] law-making process”). 18 Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 271. 19 Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 117– 118 (referring to Jennings). 20 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice: Volume 2 (Cambridge: Cambridge University Press, 1986), at 621. 21 Ibid. 22 Besson and d’Aspremont, ‘The Sources of International Law: An Introduction’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 6. 23 Raimondo, General Principles of Law in the Decisions of the International Criminal Courts and Tribunals (Leiden: Brill/Nijhoff, 2008), at 9 et seq., and 180 (preferring to use the term ‘apply’ in ascertaining general principles and the term ‘identify’ when referring to domestic laws). 24 See, e.g., Mendelson, ‘The Formation of Customary International Law, Academy of International Law’, offprint from the Recueil des Cours de l’Académie de La Haye en ligne, Vol. 272 (Leiden: Brill/Nijhoff, 1998), at 396–397 (noting that the Court’s decisions are “declaratory of existing law”).

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rightly claim that the Court by ascertaining a legal norm “anchor[s] it in the international legal order”.25 The Court’s task is “‘to take judicial notice of international law’”.26 In this process, the Court interprets international law27 and decides how it will interpret it,28 including Article 38 of its Statute.29 As it said in the 1998 Fisheries Jurisdiction case, the Court interprets a State’s declaration in accordance with “the rules of interpretation which it [the Court] has just set out”.30 The Court also interprets the scope of its judicial function. For example, in Nuclear Tests, the Court in considering the possibility of refusing to deliver a judgment said that “[i]n refraining from further action in this case [it] is therefore merely acting in accordance with the proper interpretation of its judicial function”.31 A Latin maxim (and a general principle) jura novit curia states that the Court knows the law. The Court in Fisheries Jurisdiction (without using the phrase ‘jura novit curia’) stated that it may consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute [… and that] the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court.32

25 26 27 28 29 30 31 32

Besson and d’Aspremont, above n. 22, at 11 (emphasis added). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶29 (27 June), quoting Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶17 (25 July). See, e.g., Free Zones of Upper Savory and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 96, 151 (7 June); Borchgrave, Preliminary Objections [1937] p.c.i.j. (ser.A/B) No. 72, at 163 (6 Nov.). See, e.g., Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶¶123– 124 (25 Sept.) (considering unnecessary “to enter into a discussion whether or not Article 34 of the 1978 Convention reflects the state of customary international law”). See, e.g., Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶18 (16 Oct.); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶141 (26 Feb.). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶57 (4 Dec.) (emphasis added). Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶57 (20 Dec.). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶17 (25 July). Thirlway additionally explains that jura novit curia “signifies that whatever arguments of law are addressed to it by the parties, it is the Court that determines for itself what the law is”. ­Thirlway, above n. 4, at 32.

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The general principle jura novit curia has two elements, namely, that the Court is the organ that decides what the applicable law is, and that its finding of the applicable law does not depend on States’ interpretation of international law. Through the act of interpreting, the Court develops international law that is applicable beyond the (usually) two Parties to the dispute.33 The Court has the “‘freedom to select the ground upon which it will base its judgment’”.34 Its identification and interpretation of international law is considered to be a legal ‘truth’ or, as the Court in Application of the Genocide ­Convention referred to it, “res judicata pro veritate habetur [‘an adjudicated thing is regarded as the truth’]”.35 Although the Court enjoys a discretion in deciding what norms it will apply in a particular case without justifying its selection,36 the Court’s interpretation follows the “interests of justice”.37 If the Court fails to do so, it may manifestly breach or exceed its competence,38 which may lead to a denial of justice. The role of the States in the Court’s interpretation of international law is minimal. Due to jura novit curia the Court need not rely on States’ interpretation of international law.39 Unlike in arbitral proceedings, where the States 33

Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] i.c.j. 38, at ¶55 (14 June) (noting that “general international law […] has developed through the case-law of the Court and arbitral jurisprudence”). 34 Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161, at ¶37 (6 Nov.), quoting Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Swed.), Judgment [1958] i.c.j. 55, at 62 (28 Nov.). See also Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] i.c.j. 12, at 12 (abstract) (21 June); Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶403 (11 Sept.) (noting that “the Chamber must make up its own mind on the status of the waters of the Gulf”). 35 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶139 (26 Feb.); Fellmeth and Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2009), at 252–253 (translation of the Latin expression). 36 Yotova, above n. 18, at 293 (referring to Questions Relating to the Seizure and Detention of Certain Documents and Data order); Pellet, above n. 3, at 776. 37 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶33 (20 Dec.). See also Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶48 (25 July) (noting that the Court is “administering justice between the Parties”); Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶71 (24 Feb.) (noting that its task is “to administer justice [and] is bound to apply it”). 38 Cf. Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.) (considering the “manifest breach” in relation to the conduct of an arbitral tribunal). 39 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶29 (27 June) (noting that “the Court is not solely dependent on the argument of the parties before it with respect to the applicable law”).

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may select the applicable law and rules of procedure, the Court’s Statute does not allow the Parties to select or limit the applicable law and rules of procedure.40 As the Court determined in Military and Paramilitary Activities, [t]he mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States.41 It is for the Court to determine what the (international) law applicable to the Parties in the dispute before it is, independently of the States’ positions and views (which may be taken into account as part of the Court’s interpretation of treaties or determination of norms of customary international law),42 and forms its own views on the meaning of States’ unilateral declarations.43 The Court does not have to consider all arguments put forward by States44 and may even correct States’ perception and interpretation of international law.45 There are several examples where the Court did not find any rule of international law claimed by the Parties to exist, without creating a situation that would lead to finding a non liquet, namely, the 1949 Corfu Channel case where the Court found that the right of intervention and the notion of self-help did not belong to international law46 and the 1970 Barcelona Traction case, where the Court rejected “the theory of diplomatic protection of shareholders”.47 Oppenheim’s statement that “the law made by it [the Prize Court] is to become international law without requiring the assent of the several states”,48 could be 40 41

Pellet, above n. 3, at 684–685. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j.14, at ¶184 (27 June). See also Thirlway, above n. 4, at 33. 42 Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶17 (25 July) (also noting that Iceland failed to appear before the Court). 43 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶48 (20 Dec.) (stating that “[it] must […] form its own view of the meaning and scope intended by the author of a unilateral declaration”). 44 See, e.g., East Timor (Port. v. Austl.), Judgment [1995] i.c.j. 90, at ¶35 (30 June). 45 See, e.g., Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶68 (4 Dec.); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40, at ¶60 (16 Mar.) (noting that “each [Party] interpreted the agreement in the way that best suited it”). 46 Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4, at 35 (9 Apr.). 47 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶96 (5 Feb.). 48 Oppenheim, The Future of International Law (New York: Humphrey Milford, 1921), at 45 (referring to “principles of justice and equity”, which would apply “in default of definite agreement and of generally recognized rules of the law of nations”). The Prize Court never came into existence.

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analogised to the functioning of the Court. It follows that the Court does not have to seek permission from the States when ascertaining (and potentially creating) international law. Whether their views on international law are taken into consideration by the Court or not, States have consented to the Court’s functioning, including to its potential law-making capacity, by conferring on it the mandate to decide in accordance with international law.49 States can, however, limit the Court’s lawmaking capacity in a variety of ways. For example, both the scope of States’ disputes brought to the Court and their requests limit the subject-matter of questions the Court is entitled to consider. Pellet writes about “the scarcity of cases brought to the Court”;50 Mendelson similarly estimates that it is “statistically very improbable that any given international dispute will end up in The Hague”.51 States also limit the potential law-making ability of the Court by not accepting its jurisdiction for a particular subject-matter or at all.52 The Court may only decide “within the restricted area in respect of which it is competent to give a ruling”.53 The Court’s other “inherent limitations on the exercise of the judicial function”54 are for example, the restriction of the “interest of a legal nature” of States not Parties to the dispute.55

49 Cf. Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶46 (22 Dec.) (noting that “[a] judicial decision [… is] the solution arrived at by a court under the mandate which [the Parties] have given it”). 50 Pellet, above n. 3, at 789. 51 Mendelson, above n. 15, at 83. 52 Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] i.c.j. 12, at ¶36 (21 June); Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶¶44, 87 (4 Dec.) (noting that “this dispute comes within the terms of the reservation contained in paragraph 2(d) of the Canadian declaration”); Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶88 (4 June). See also Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, ¶48 (22 Dec.) (considering “the need to safeguard the interests of the third State [Niger …] which has not participated in the proceedings”). 53 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶286 (10 Oct.). 54 Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] i.c.j. 15, at 29 (2 Dec.). 55 Continental Shelf (Tunis./Libya), Application by Malta for Permission to Intervene [1981] i.c.j. 3, at ¶33 (14 Apr.) (considering that Malta’s legal interests are not affected to the degree where Malta could seek permission to intervene pursuant to Article 62 of the Court’s Statute); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. ­Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶307 (10 Oct.) (noting that “it can take no decision that might affect rights of Equatorial Guinea, which is not a party to the proceedings”).

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Unlike individual State or a group of States, the Court is in the best position to address “the needs of the [international] community”56 when offered the opportunity to interpret international law. According to its Statute, the Court represents “the main forms of civilization and […] the principal legal systems of the world”.57 Therefore, when the Court interprets and clarifies i­ nternational law, it does so for the community it was established to represent.58 In comparison, the individual States’ interpretation of international law applies only to themselves. The Court’s international law-making authority is not the same as that of the potential international parliament. Therefore, the term ‘law-making’ is to be understood in the limited sense of the Court’s authoritative interpretation.59 Pellet, for example, agrees that Article 38(1) confers an implied or derivative ‘law-ascertaining’ role on the Court, if not already a ‘law-making’ one,60 and Mendelson similarly notes that the Court has “in practice a very considerable influence on the view of the law taken by other decision-makers”.61 The Court clarifies international law62 and authoritatively states what the existing international law is,63 whether it was known to the international community prior to the Court’s decision or not. How does this apply to general principles? When relied on by the Court, general principles, too, become part of the applicable international law, whether or not they were already norms of 56 57 58

59 60 61 62

63

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 178 (11 Apr.). See also Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶148 (16 Oct.). Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 9. See also Redgwell, above n. 16, at 14–15 (referring to the Court’s judges’ opinions). See Spiermann, ‘“Who attempts too much does nothing well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, 73 Brit. Y. of Int’l L. 1 (2003), at 192 (noting that the Advisory Committee of Jurists prepared “a draft scheme for ‘a real World Court for the Society of all Nations’”). Thirlway notes that “judicial legislation [… is] concealed under a fig-leaf of authority”. Thirlway, above n. 19, at 117. Pellet, above n. 3, at 693. Cf. Andenæs and Leiss, ‘The Systematic Relevance of “Judicial Decisions” in Article 38 of the icj Statute’, 77 ZaöRV 907 (2017), at 928–929. Mendelson, above n. 15, at 83. See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶187 (12 Oct.) (“international jurisprudence has done much to clarify the necessary distinction between the situations to which the method in question may be applied”); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶65 (10 Oct.) (clarifying the notion of “historical consolidation”). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶18 (8 July) (“[the Court] states the existing law”).

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international law. The norm ascertained by the Court in its reasoning may have existed before the delivery of a particular decision; however, it becomes unequivocally part of international law once the Court identifies it as such. 2.2

Processes of International Judicial Law-Making: Elevation, Transplantation and Judicial Creation

The Court authoritatively declares international law for the entire international community, in at least three ways, namely, by identifying the emergence of new norms of customary international law, ascertaining general principles, and consistently relying on its precedents in determining procedural (and sometimes substantive) norms of international law. These three ‘ways’ of authoritatively ascertaining international law are comprised of up to three processes, namely, the processes of elevation, transplantation and judicial creation. Elevation is a process of international judicial law-making whereby the Court elevates a norm (usually a norm existent in domestic law, but also norms that are not yet legally binding in international law) that has not previously been part of international law (also) to the international level. The norm in question gains an additional existence as part of international law and obtains independence from its domestic law counterpart, even if the norm bears the same name in both domestic and international law. The norm’s existence on the international level is a precondition for the Court to be able to rely on it in giving its decisions – as it is an international judicial body, the applicable law before the Court is always international law, irrespective of where the norm originates. Raimondo refers to elevation as the ‘vertical move’, noting that it applies to instances when general principles had been identified in domestic law and through this ‘vertical move’ were transported into the realm of international law.64 Pellet, when referring to the adoption of domestic notions in the sphere of international law, uses the term ‘transposed’.65 Similarly, Redgwell labels this process ‘transfer’ from domestic law to international law,66 while Yotova

64 65 66

Raimondo, above n. 23, at 46–50. Pellet, above n. 3, at 723, 772–773. Redgwell, above n. 16, at 11.

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describes it as “transposition of domestic principles to the international plane”.67 The process of elevation applies for ascertaining both general principles and customary international law. For example, the Court on several occasions declared the International Law Commission (ilc) draft articles to be part of (or reflective of) customary international law, although the ilc’s commentary did not provide evidence of State practice or opinio juris that would justify considering these norms as legally binding. In such cases, the Court relied on a norm that did not yet exist as part of international law (the ilc’s work is nonbinding), and by declaring it as a norm of customary international law the Court elevated the norms contained in certain ilc draft articles to customary international law. Akehurst’s concern about the Court’s ascertaining of general principles through elevating domestic norms into international law is that a decision of an international tribunal applying a general principle of law is not always reliable evidence of a general principle of law, because the tribunal may have misinterpreted the municipal laws from which the principle was derived, or because those laws may have changed since the date of the decision.68 This concern might be valid if the Court were indeed to rely directly on domestic laws in delivering its decisions. However, the Court elevates these norms into the sphere of international law and relies on them as part of i­ nternatio­nal – not domestic – law. The process of transplantation occurs when the Court transfers a rule from one source of international law to another. The Court relies on transplantation in ascertaining both norms of customary international law and general principles. For example, the Court transplants a norm from a treaty to a customary norm when it declares a treaty provision reflective also of customary international law. Such norm has an independent existence in two (or more) sources of international law at the same time. In effect, the Court transplants a notion from one source to another, without venturing into domestic law. A concrete example of transplantation was the Court’s classification of Article 31 of the Vienna Convention on the Law of Treaties – a treaty provision – also as a rule

67 68

Yotova, above n. 18, at 273–274. Akehurst, ‘Equity and General Principles of Law’, 25 Int’l & Comp. L.Q. 4, 801 (1976), at 818.

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of customary international law.69 Raimondo refers to this process as a ‘horizontal move’.70 A practical consequence of the process of transplantation is that the norm that is being transplanted, for example, from treaty to customary international law, becomes applicable to a larger audience. In the example of treaty-­ customary transplantation, the norm becomes applicable from only the Contracting Parties to the treaty to the entire international community as part of customary international law (save for those States who persistently objected to the norm). The third and last process of international judicial law-making is judicial creation. This process takes place when the Court identifies a norm by relying solely on its inherent discretion to decide or on its precedent without citing any evidence or basis to substantiate its finding. In other words, through judicial ­creation the Court creates a new international norm. An example of judicial creation is the Court creating rules of procedure that have not been provided for in its Statute or its Rules. When ascertaining general principles, the Court relies on all three processes of international judicial law-making, namely, elevation, transplantation and judicial creation. In comparison, the Court relies on elevation and transplantation alone in interpreting and ascertaining norms of customary international law. These three processes of international judicial law-making rely on the premise that the Court, as the organ of international law71 and bound to follow Article 38(1), can interpret only international law.72 The Court cannot directly rely on domestic or other legislation in making its decision, except when

69

70 71 72

Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶41 (3 Feb.). See also North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶71 (20 Feb.) (noting that “this process [of a treaty provision becoming reflective of custom] is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed”). Raimondo, above n. 23, at 50 et seq. Pellet, above n. 3, at 696. See, e.g., Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403, at ¶27 (22 July) (“assess[ing] an act by reference to international law”); Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644, at ¶58 (5 Dec.); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66, at ¶16 (8 July) (noting that its judicial task is “assess[ing] […] the legality of the possible conduct of States with regard to the obligations imposed upon them by international law”; emphasis added). See also Pellet, above n. 3, at 694.

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d­ eciding in accordance with Article 38(2) of its Statute.73 As domestic courts apply domestic law so the Court applies international law.74 The Court could resort to identifying general principles in domestic law. Such norms, however, become part of international law when used in the Court’s jurisprudence and obtain an international form attributed to them by the Court. As de Lapradelle of the Advisory Committee of Jurists observed, “the principles which formed the bases of national law, were also sources of international law”.75 Some scholars argue that the general principles of international law are to be distinguished from the general principles of domestic law. Kleinlein, for ­example, notes the long-accepted scholarly view that the drafters of the pcij Statute had domestic principles in mind when drafting Article 38(1)(c), although he does not exclude the possibility that the drafters allowed for the possibility that “the Court would apply also general principles of international law”.76 Kleinlein and others who view the third source as composed of domestic and international general principles are most likely using the words ‘domestic’ and ‘international’ to describe where general principles originate from and not what general principles become after they are used in the Court’s jurisprudence. Whatever the origins of general principles are (domestic, international or other), all such general principles are – after having been ascertained in the Court’s decision – recognised norms of international law. 2.3

General Principles Ascertained for the International Community and Article 59 of the Court’s Statute

In its jurisprudence the Court ascertains general principles for the international community as a whole, and not just for the Parties in the dispute before the Court. General principles form part of the applicable international law to which the chapeau of Article 38(1) refers and to which the Court resorts in solving disputes submitted to it. Once identified, general principles are valid for the entire international community and apply beyond the individual decision, as customary international law does. As the Court stated in South West Africa

73 74 75 76

Pellet, above n. 3, at 700. Ibid., at 685. Procès-Verbaux of the Proceedings of the Committee, 16 June-24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 335. Kleinlein, ‘Customary International Law and General Principles: Rethinking Their Relationship’, in Lepard (ed.), Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017), at 136 (emphasis in original).

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advisory opinion, the “[general] principle of self-determination [is] applicable to all of them [i.e., the non-self-governing territories]”.77 Sykes observes that “[g]eneral principles are said to be generated by ‘recognition’ by the international community (or perhaps by ‘civilized nations’)”.78 However, general principles are not recognised by the ‘civilised nations’ – an expression that could be interpreted as referring to the international ­community – but by the Court, which ‘recognises’ general principles on behalf of the international community. However, not many find such proposition viable, mostly due to Article 59, which seems to suggest that the Court’s pronouncements are limited to only the Parties before the Court. Article 59 of the Court’s Statute provides that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”.79 In Military and Paramilitary Activities, the Court clarified that [it] has no jurisdiction to rule upon the conformity with international law of any conduct of States not parties to the present dispute, or of conduct of the Parties unconnected with the dispute; nor has it authority to ascribe to States legal views which they do not themselves advance.80 In its jurisprudence, the Court referred to Article 59 to confirm that its decisions are binding as between the Parties to the dispute. For example, in Monetary Gold the Court said that under Article 59 of the Statute, the decision of the Court in a given case only binds the parties to it and in respect of that particular case. This rule, however, rests on the assumption that the Court is at least able to render a binding decision.81

77

78 79 80 81

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16, at ¶52 (21 June) (emphasis added). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶88 (9 July) (the right of self-determination represents an international obligation to all States Parties to international instruments providing for this right). Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’, 49 Canadian Y. Int’l L. 3 (2011), at 46. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 59. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j.14, at ¶207 (27 June). Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19, at 33 (15 June).

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However, Article 59 and the Monetary Gold example above refer only to the Court’s decision (i.e., holding), which does not correspond with its reasoning. A judgment or an advisory opinion is composed of the Court’s reasoning and its operative part or decision (also termed the Court’s holding). If the Court’s reasoning is not included in the notion of a ‘decision’, Article 59 is applicable only to the operative part of the judgment, while allowing the reasoning part of the judgment to address the entire international community. Considering that the Court’s reasoning is not limited to the Parties to the dispute and that the Court ascertains general principles (and other norms) within its reasoning, the Court’s ascertainment of general principles applies to the international community and is not limited to the particular dispute. The above interpretation is supported by the analysis of the drafting history of the Statute of the Permanent Court of International Justice (pcij) and the inclusion of Article 59 in Article 38(1)(d) of the Court’s Statute. Article 38(1)(d) provides that “judicial decisions and the teachings of the most highly qualified publicists of the various nations” are “subject to the provisions of Article 59”.82 The use of the term ‘decisions’ in Article 38(1)(d) reinforces the (mis)understanding that Article 59 applies to the Court’s (domestic or international) judgments in their entirety. However, Article 38(1)(d) – like Article 59 – uses the term judicial decisions, and not the term judgments. It is also worth mentioning that the Article 59 limitation of Article 38(1)(d) was introduced by the League of Nations and not by the original drafters of the pcij Statute, the Advisory Committee of Jurists (acj). Despite considering ways in which it could limit the Court’s law-making authority, the Committee did not include a reference to Article 59 in Article 38, paragraph 4, of the Court’s Statute,83 perhaps because Article 59 encompasses only the Court’s holdings. The textual reading of the Statute suggests that the words decision and judgment do not overlap. The Court’s Statute mentions the word decision fourteen times;84 the word judgment is referred to fifteen times.85 The words ‘decision’ and ‘judgment’ are used interchangeably only in Article 39(1) and (2). Article 59 uses the word decision, and its positioning among Articles 57, 58, 60 and 61 (which refer to judgment) suggests that the terms decision and judgment are indeed worth distinguishing. Instances in which the Court’s Statute refers to 82 83 84 85

Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(d). See, e.g., Procès-Verbaux of the Proceedings of the Committee, above n. 75, at 344 (Annex No. 1). Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, arts 16, 17, 24, 31, 36, 39, 41, 56, 59, 62. Ibid., arts 27, 39, 54, 56, 57, 60, 61, 63.

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decision also show that this term is associated with the action of voting, namely, taking a decision. The word decision(s) may be referring only to the operative part of the judgment, i.e., the holding; while judgment encompasses both the reasoning and the operative part (the decision). Judgment is a broader idea and encompasses the notion of a decision. In this sense, the Court’s judgment is composed of both a binding section (the Court’s decision or holding) and a non-binding section (the Court’s reasoning). The Court delivers a decision (i.e., a holding) also as part of handing down advisory opinions, which are not judgments.86 In this sense, the non-binding reasoning section of the judgment could be considered as carrying the same authority as advisory opinions do. Such interpretation of the words decision and judgment suggests that Article 59, which uses the word decision, applies only to the holding or the operative part of the judgment (decision) but not to the judgment in its entirety. In this sense, Article 59 (and its limitation in Article 381(d)) encompasses only decisions and judgments. In other words, the Article 59 limitation does not apply to the Court’s reasoning. Therefore, the reasoning section of a judgment (i.e., judgment minus a decision) is applicable to the international community, beyond the Parties to the dispute. The Court ascertains general principles (and customary norms) in the reasoning section of its judgment or advisory opinion. Taking on board the limitation of Article 59, which does not apply to the Court’s reasoning, implies that the Article 59 limitation does not apply to the Court’s ascertainment of general principles. As the Court stated in the North Sea Continental Shelf case, “general or customary law rules and obligations […] must have equal force for all members of the international community”.87 Similarly, in Continental Shelf (Tunisia/ Libya), the Court stated that it could not ignore any provision of the draft convention if it came to the conclusion that the content of such provision is binding upon all members of the international community because it embodies or crystallizes a pre-existing or emergent rule of customary law.88

86 87 88

See also Minutes of the Conference of State Signatories of the protocol of Signature of the Statute of the Permanent Court of International Justice, 1–23 Sept. 1926, at 42. North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶63 (20 Feb.) (emphasis added). Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶24 (24 Feb.) (emphasis added).

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These two examples demonstrate that customary international law, and mutatis mutandis also general principles, apply to the entire international community. 2.4

States and the Court’s Ascertainment of General Principles

The predominate members of the international community – States – are also the main international law-‘makers’. However, their participation in the Court’s ascertainment of general principles is merely indirect.89 After they have been ascertained in the Court’s jurisprudence, a State (or a group of States) cannot unilaterally or collectively change those general principles90 or undermine their status as norms of international law. A State (or a group of States) also cannot ascertain general principles independently, without the Court’s approval. States’ collective action has the potential to create treaties and norms of customary international law, but not also general principles. Berry agrees that general principles “allow a court to bring to bear a source of law that is not entirely based upon the consent of states”.91 Elias and Lim similarly note that general principles are “not rooted in the consent of States”, as treaties and customary international law are,92 but caution that general principles, by not being dependent on States’ consent, “threaten the stability and structure of the international legal order, in which law-making is based on the consent of States”.93 The Court in Military and Paramilitary Activities attempted to reassure the States by stating that “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise”.94 However, the general principle of jura novit curia 89

D’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, 84 Brit. Y. Int’l L. 1, 103 (2014), at 115 (the social theory of sources provides that the sources of international law are developed by judicial practice and not by the States). Cf. Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), U.N.Doc. A/CN.4/732, at ¶35 (noting that “[t]he work of the Commission will be based primarily on the practice of States”). 90 See Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶42 (22 Dec.) (noting that “[i]f these principles and rules are applicable as elements of law in the present case, they remain so whatever Mali’s attitude”). 91 Berry, Caribbean Integration Law (Oxford: Oxford University Press, 2014), at 173. 92 Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 20. 93 Ibid., at 5. 94 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶269 (27 June) (referring to the rules relative to the level of armaments of a sovereign State).

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­ rovides that States are not in a position to determine what law applies to the p dispute before the Court.95 States are also not in a position to make an authoritative interpretation of international law that would apply to the entire international community, and the Court may limit States’ assertions and their interpretation of international law. In fact, the Court disagreed with States’ interpretation of international law on several occasions. For example, in Delimitation of the Maritime Boundary in the Gulf of Maine Area, the Court’s Chamber stated that “[it] cannot adopt these positions of the Parties”.96 Similarly, in Military and Paramilitary Activities, the Court observed that the United States attributed to the concept of reciprocity “a meaning that goes beyond the way in which it has been interpreted by the Court, according to its consistent jurisprudence”.97 Besides sometimes explicitly rejecting States’ interpretations and arguments,98 the Court can also decide to reformulate the legal questions posed in the requests for Advisory opinions,99 reinterpret State submissions100 and decide what the “proper approach is”.101 States Parties to the dispute before the Court could agree on the existence of the scope of a specific ‘principle’. However, such ‘principle’, being the subject of an agreement between two or more States, belongs to Article 38(1)(a) of the 95

See ibid., at ¶29 (but noting that “[n]evertheless the views of the parties to a case as to the law applicable to their dispute are very material”). 96 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶235 (12 Oct.). 97 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶64 (26 Nov.). 98 See, e.g., ibid., at ¶58 (noting that “[t]he argument between the Parties as to whether the 1984 notification should be categorized as a modification or as a termination of the 1946 Declaration appears in fact to be without consequence for the purpose of this Judgment”); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] i.c.j. 115, at ¶¶34–36 (27 Feb.). 99 See Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶49 (22 Dec.); Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion [1987] i.c.j. 18, at ¶43 (27 May). 100 See, e.g., Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶¶29–32 (4 Dec.); Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zeal. v. Fr.) Case, Order [1995] i.c.j. 288, at ¶56 (22 Sept.); Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶29 (20 Dec.); Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶63 (22 Dec.) (weighting the legal force of States’ claims about effectivités). 101 Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶137 (22 Dec.).

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Court’s Statute and is not a source within the meaning of Article 38(1)(c). The Parties agreement on the ‘principle’ is usually part of the Special Agreement submitted to the Court, which is in itself a treaty provision and (usually) also does not belong to the category of general principles. The Court did not always consider the ‘principles’ that the States put forward in their submissions.102 For example, in Revision of the Judgment of 11 September 1992, the Court did not consider Honduras’ discussion of the general principle of res judicata.103 Parties’ agreement on a particular ‘principle’ (whether or not such agreement forms part of the Special Agreement or is made during the Court proceedings) does not influence the Court’s ascertainment of general principles. In cases where the State-declared ‘principle’ is already in existence, the Court would most likely invoke it regardless of the Parties’ assertions. On occasions when the Court considered State-invoked ‘principles’, it mostly did not find them to be representative of any norm of international law. As Thirlway confirms, States have invoked general principles before the icj [in a number of cases], but in which the Court has decided the cases on a different basis, or has found it unnecessary for other reasons to rule on the applicability or otherwise of a general principle.104 For example, the Court in Monastery of Saint-Naoum specifically stated that there was no such ‘principle’ as the Serbo-Croat-Slovene State was claiming existed.105 Similarly, the Court in Peter Pázmány University implied that the ‘principle a contrario’ put forward by Czechoslovakia was actually an argument 102 See, e.g., Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Swed.), Judgment [1958] i.c.j. 55, at 57, 64 (28 Nov.) (Netherlands arguing that there is a “principle that the national law of the infant is applicable and the national authorities are competent”). Cf. Yotova, above n. 18, at 294 (noting that the Court “did not address Australia’s counter-arguments […] which were focused on the methodology for ascertaining the existence of general principles”). 103 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Sal. v. Hond.), Judgment [2003] i.c.j. 392, at ¶¶57–58 (18 Dec.). 104 Thirlway, above n. 19, at 103. 105 The Serbo-Croat-Slovene State relied on a “principle […] that all disputed areas on the borders of Albania and Serbia containing Christian orthodox sanctuaries of national or historical importance […] should be allocated to Serbia”. Monastery of Saint-Naoum, ­Advisory Opinion [1924] p.c.i.j. (ser.B) No. 9, at 21 (4 Sept.).

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and not a norm that the Court was bound to apply.106 The Court also in the 1966 South West Africa case noted that the ‘certain humanitarian principles’ on the basis of which the States claimed reparation for material damage were not in fact general principles. The Court referred to them as ‘humanitarian considerations’ devoid of a legal basis.107 States’ opinio juris, although an essential element in ascertaining customary international law, is not relevant to the Court’s ascertainment of general principles. In its jurisprudence the Court may consider Parties’ opinio juris on the relevance, but not also on the existence or application, of general principles.108 For example, Poland, as part of its preliminary objections to the Court’s jurisdiction in the Rights of Minorities, argued that the Court could consider only those general principles that related to the facts before it,109 to which the Court responded that “[t]here is thus no actual plea of inadmissibility for the Court to consider”.110 The Court pronounces only on those general principles that it considers ripe to become part of international law (if they are not recognised as norms of international law already), regardless of whether or not States invoked them as part of their submissions to the Court.111 As such, general principles seem to be the product of the Court’s – rather than the States’ – opinio juris. The absence of an effective State participation in the Court’s ascertainment of general principles “increases the risk that parties will be less inclined to accept the judgment”,112 which may explain the Court’s reluctance to confer on general principles a greater visibility in its jurisprudence. The reality remains the same as it was in 1920 – general principles represent the element of international judicial law-making States have no control over.113 106 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 245 (15 Dec.). 107 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶¶5, 49, 50 (18 July). 108 Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90, at ¶23 (12 July) (observing that “the Parties […] are in agreement on the relevance of the principle of uti possidetis juris”; emphasis added). 109 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 30 (26 Apr.) (Poland arguing that “it is not incumbent upon the courts to enunciate general principles otherwise than in regard to actual facts before them”). 110 Ibid. 111 Cf. Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶48 (3 June). 112 Pellet, above n. 3, at 782. 113 See also Gaja, ‘General Principles of Law’, Max Planck Encyclopaedia of Public International Law (2013), at ¶16 (quoting Gerald Fitzmaurice who noted that “a quasi-legislative element would often be introduced into the Court’s decision by any ‘bold’ application of [general principles]”).

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Perhaps States – and scholars – argue that general principles are identified solely in foro domestico to limit the Court’s international law-making. If general principles were to be ascertained exclusively in domestic law or be (ideally) adopted by all nations, States might not be bound to a general principle that their domestic legislation expressly rejects or that the State is not inclined to adopt. Such solution would also greatly reduce the ability of the Court to rely on general principles and the drafters’ intention behind including a third source of international law in the Court’s Statute. Regardless of the international judicial reality, States continue to rely on general principles in their submissions to the Court and sometimes even request the Court to base its decision on general principles.114 Although not having a greater impact on the Court’s reasoning, such approach sends a positive sign that States (at least when it is in their interest) acknowledge general ­principles as a source of international law, regardless of whether the general principles in question are based on their consent. 2.5

General Principles and the Court: A Symbiotic Relationship

There is a symbiotic or reaffirming relationship between general principles and the Court. On the one hand, the Court ascertains general principles as part of its judicial function of applying international law; on the other hand, those general principles that have been recognised by the Court support its international law-making capacity.115 General principles apply beyond the particular decision rendered by the Court. For example, the Court in Polish Postal Service said that “the principles laid down in its Opinions Nos. 8 and 9 […] apply to any final decision under the aforesaid provisions”.116 The Court has the tendency to reaffirm those general principles that it ascertained in previous decisions.117 For example, the Court 114 Thirlway, above n. 19, at 98–99. See also Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶101 (4 June) (France “[based] itself on the principles of interpretation established by the Court with regard to other friendship treaties”). 115 Skomerska-Muchowska, above n. 6, at 259 (noting that “principles equip a judge with a certain degree of discretion”). 116 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 24 (16 May) (emphasis added; referring to “the principles […] as to the final character of decisions under international law”, i.e., the general principle of res judicata). 117 See also Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), at 264 (noting that a principle established by the pcij was confirmed in the first icj decision).

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in ­Continental Shelf (Tunisia/Libya) observed that “[a]s [it] explained in the North Sea Continental Shelf cases the continental shelf is a legal concept in which ‘the principle is applied that the land dominates the sea’”.118 Similarly, in the Application for Review of Judgment No. 273 advisory opinion, the Court explained that “[it] now comes to the principle which, in its 1973 Advisory Opinion, it regarded as a requirement of the judicial process: the principle of equality of the parties”.119 General principles in more than one decision are here referred to as ‘recurring’. ‘Recurring’ general principles demonstrate that a general principle – once ascertained by the Court – remains part of international law and the Court’s jurisprudence. The Court’s repeated reliance on the same general principles assists in their development and the development of the field of international law those general principles form a part of.120 The Court’s ability to ascertain general principles on behalf of the international community and its consistent reliance on those general principles in its jurisprudence have contributed to the general principles becoming effective, if not the (Court’s) “main tool for the development of international law”121 that “ensur[es] the ordered progress of relations between its members”.122 Hudson in 1943 wrote that Article 38(1)(c) of the Court’s Statute “serves a useful purpose in that it emphasizes the creative role to be played by the Court”,123 while Kaufman Hevener and Mosher praise it as “an authoritative recognition of a dynamic element in international law”.124 As Gaja notes, “references to general principles of law undoubtedly provide international courts 118 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶73 (24 Feb.). 119 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶29 (20 July). 120 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶132 (24 Feb.) (noting that “the Court has endorsed and developed those general principles and rules [relating to the continental shelf] which have thus been established”). 121 D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 172–173 (emphasis added, also referring to Bassiouni and Friedmann). See also Skomerska-Muchowska, above n. 6, at 272 (noting that general principles contribute to “the progressive development of international law [… and] preserve the systemic nature of international law”). 122 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶92 (24 May) (considering the repercussions for diplomatic and consular law by the Iranian-us diplomatic crisis). 123 Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co., 1943), at 611. 124 Kaufman Hevener and Mosher, ‘General Principles of Law and the un Covenant on Civil and Political Rights’, 27 Int’l & Comp. L. Q. 3, 596 (1978), at 601 (quoting Brierly).

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and tribunals with discretion [in determining what the international law is]”.125 Without the possibility of relying on general principles, the Court’s application of international law would undoubtedly be substantially limited. Like general principles, the Court in 1920 was also considered to be “a newcomer among the traditional organs of the traditionally disorganized international society”.126 The Court’s creative interpretation has since not only shaped the international community’s understanding of international law,127 but also contributed to the development of the general principles.128 125 Gaja, above n. 113, at ¶31. 126 Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 15. 127 See also Oppenheim, above n. 48, at 48 (adding that “[n]othing can heighten the respect in which international law is held more than the existence of a real international court”). 128 De Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice’, xlvii Neth. Int’l L. Rev. 181 (2000), at 186 (“the concept of general principles has been extended in international decisions through creative interpretation”).

Chapter 3

What Are General Principles? Theory and Conclusions What are general principles? Those writing about them must have had this question at the forefront of their minds ever since general principles were incepted in 1920.1 However, “concrete answers to this question are [still] lacking”.2 To this date, and after many scholarly pages devoted to the subject, there is still no agreement as to what general principles are or how they contribute to the structure of international law. This chapter aims to synthesise the theoretical debates on general principles. Do only fundamental norms qualify as general principles? Are general principles binding and must they satisfy the requirement of ‘generality’ to qualify as Article 38(1)(c) norms? Does Article 38(1)(c) encompass general ­principles of domestic law or general principles of international law (or both)? The doctrinal discussions on these and other points are compared to the findings based exclusively on the Court’s jurisprudence. The answer to the question ‘what are general principles?’ finds its place in the four Conclusions, developed by analysing the Court’s practice. The four Conclusions walk the reader across a provisional definition of general principles, namely, that general principles are composed of both ‘principles’ and ‘rules’ of international law that are applicable to the entire international community and are ascertained by the Court’s opinio juris. Among others, the chapter challenges the long-standing doctrinal beliefs that general principles may be ascertained solely in domestic laws and that they are a rarely-ascertained source of international law.

1 Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013) (noting that “much of the literature usually addresses the general principles in an encompassing manner, dealing with all the aspects of the topic”). 2 Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’, 51 Am. J. Int’l L. 4, 734 (1957), at 735.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_005

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3.1 Theory Article 38(1), although not expressly stating that it lists the sources of international law3 nor expressly mentioning the word ‘source’,4 is generally understood as codifying the three traditional sources of international law, namely, treaties, customary international law and general principles.5 At the very least, Article 38(1) lists the ‘applicable categories of law’6 and does not preclude the emergence of other categories of sources of international law.7 General principles are a traditional source of international law. But what is a ‘source’ of international law? The meaning attributed by scholars to the word ‘source’ in international law ranges from legislative acts, forms of manifesting legal rules, to methods or processes of creating, modifying or annulling international law.8 Lesaffer, for example, offers three meanings of the term ‘source’, namely, the informative, the formative and the authoritative meanings.9 Herczegh contributes to the debate with his view that “[t]he term ‘source of law’ in the technical sense denotes the outward forms of legal rules”,10 while Parry concludes that the term ‘source of law’ is “the name for an [sic] historical fact

3 Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 5 (noting that Article 38 “does not even say that it purports to be a list of sources otherwise than by implication”). 4 Restatement (Third) of the Foreign Relations Law of the United States, §102 (1987) (see reporters’ notes, at ¶1). 5 Kleinlein, ‘Customary International Law and General Principles: Rethinking Their Relationship’, in Lepard (ed.), Reexamining Customary International Law (Cambridge: Cambridge University Press , 2017), at 133. 6 Haggenmacher, ‘Sources in the Scholastic Legacy: Ius Naturae and Ius Gentium Revisited by Theologians’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 49. 7 Some consider the Article 38(1) classification of the sources too narrow and list those ­additional to those in Article 38(1). See, e.g., Greenwood, ‘Sources of International Law: An Introduction’, United Nations Audiovisual Library of International Law (2008), at 1 (writing that Article 38 identifies five sources of international law). 8 Herczegh, General Principles of Law and the International Legal Order (Budapest: Akadémiai Kiadó, 1969), at 61 (noting that “‘by ‘sources’ of international law the methods of creating international law are meant’”; quoting Kelsen); Kleinlein, above n. 5, at 133 (defining sources as “‘processes by which international legal norms are created, modified, and annulled’”; emphasis in original, quoting Besson). 9 Lesaffer, ‘Sources in the Modern Tradition: The Nature of Europe’s Classical Law of Nations’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 99–100. 10 Herzcegh, above n. 8, at 89.

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out of which rules of conduct rise into existence and legal force”.11 D’Aspremont suggests that “sources are the expression of evolving practices of a wider community of international lawyers”,12 to which Spiermann adds that they result from “need felt by national lawyers for law that supplements and separates the several national legal systems”.13 Whether or not restricted only to the formal sources listed in Article 38(1),14 a ‘source’ of international law describes the forms in which rules and principles are expressed and are the constituting parts of the international legal framework. The expression ‘source of international law’ was not “a term of art at all among professional jurists [before 1920], but at best a rhetorical figure of speech in legal philosophy”,15 which may also be the reason why the term ‘source’ does not appear in Article 38(1). Haggenmacher observes that “[t]he concept of sources figures neither in Wolff’s Jus Gentium (1749) nor in Vattel’s Droit des Gens (1758)”16 and that “it was fully established in the field of international law only in the nineteenth century”.17 To the extent that pre-1920 scholars considered the constituting elements (or the sources) of international law, they did not consider ‘general principles of law’ to be among them. In their works Oppenheim and de Vattel, for example, do not refer to ‘general principles of law’ as a fully-fledged source of international law. The absence of the third source from pre-1920 international law is confirmed by the fact that Descamps, the President of the 1920 Advisory ­Committee of Jurists (acj), chose to include in the initial formulation for the (new) third source of international law ‘rules of international law’ and not ‘general principles of law’. Indeed, Herczegh confirms that the general principles codified in Article 38(1)(c) seem to have been an invention of the West.18 The same ‘West’ that agreed upon their inclusion among the sources of international law is, however, still divided on its meaning.19

11 Parry, above n. 3, at 3 (quoting Oppenheim). 12 D’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, 84 Brit. Y. Int’l L. 1, 103 (2014), at 128. 13 Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 175. 14 Herczegh, above n. 8, at 61 (referring to Rousseau). 15 Haggenmacher, above n. 6, at 47. 16 Ibid., at 50. 17 Ibid., at 45. 18 Herczegh, above n. 8, at 96 (noting that “[a]s regards relations between capitalist states, clause (c) has a significance even today [in 1969]”). 19 D’Aspremont, above n. 12, at 107.

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Post-1920 scholars mostly agree that general principles form part of the traditional sources of international law. Kaufman Hevener and Mosher even consider them as “a major source of international law [which …] can be cited as establishing international obligations”.20 Kleinlein agrees that general principles are of “great practical importance in international law”21 and ensures that otherwise non-binding instruments “gain normative force as articulating general principles of law”.22 Similarly, Herczegh opines that a specific number of (fundamental) general principles “enjoy a rather significant place in the bourgeois legal systems and are applicable for a number of different functions”.23 On the other hand, d’Aspremont argues that “general principles of law failed to realize the hopes pinned upon them as a result of their design as a source of international law”.24 However, he ascribes the ‘failure’ of general principles precisely to their status as a source of international law.25 While recognising the importance of the general principles as a source of international law, scholars mainly consider them to be an auxiliary source “of somewhat minor significance” when compared to treaties and customary international law,26 or a source ‘subsidiary’ to treaty and custom.27 Elias and Lim go even further and position general principles alongside the non-binding ‘soft law’ because – like soft law – general principles “threaten the perceived certainty of the ‘truly consensual’, ‘logically determinate’, and ‘empirically verifiable’ categories of treaty and customary law”.28 20

Kaufman Hevener and Mosher, ‘General Principles of Law and the UN Covenant on Civil and Political Rights’, 27 Int’l & Comp. L.Q. 3, 596 (1978), at 612. 21 Kleinlein, above n. 5, at 137. 22 Ibid., at 156. 23 Herczegh, above n. 8, at 34. 24 D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 179–180. 25 Ibid., at 178. 26 Schwarzenberger, ‘The Fundamental Principles of International Law’, offprint from the Recueil des Cours de l’Académie de La Haye en ligne, Vol. 087 (Leiden: Brill/Nijhoff, 1955), at 374. 27 Raimondo, General Principles of Law in the Decisions of the International Criminal Courts and Tribunals (Leiden: Brill/Nijhoff, 2008), at 10 (noting that “arbitral tribunals conceived of general principles of law as a subsidiary source of international law”; emphasis added), and at 30 (referring to “the subsidiary nature of general principles of law as a source of international law”; emphasis added). Cf. Gaja, ‘General Principles of Law’, Max Planck Encyclopedia of Public International Law (2013), at ¶21 (noting that “[p]rinciples do not necessarily have a subsidiary character”). 28 Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 48–49.

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Scholars describe general principles as types of norms,29 specific types of a source,30 “means for the systematisation, interpretation and progressive development of international law”,31 an expression of the fundamental values32 or postulates of the legal system as a whole.33 A tentative answer to the question ‘What are general principles?’, when composed of a compilation of doctrinal views, reads as follows: General principles are “those principles without which no legal system can function at all”.34 They provide the basis of rules of conduct and are sometimes rules of conduct themselves.35 On the one hand, general principles are either fundamental36 or ordinary, on the other hand general principles may be universal,37 general38 or abstract (or abstractions).39 29 30

Kleinlein, above n. 5, at 133. D’Aspremont, above n. 24, at 166–167; Berry, Caribbean Integration Law (Oxford: Oxford University Press, 2014), at 171 (noting that “‘general principles of law’ can be used to describe the origin or source of a legal concept [… and as] the function of the legal concept”; emphasis in original). 31 Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds) General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 11 (referring to Wolfrum). 32 Wouters, Coppens and Geraets, ‘The Influence of general principles of law’, in Gaines, Egelund Olsen and Engsig Sørensen (eds), Liberalising Trade in the eu and the wto (Cambridge: Cambridge University Press, 2012), at 44. 33 Herczegh, above n. 8, at 69 (writing that “[t]he principles of law formulate and embody the postulates the legal system as a whole has to satisfy”). 34 Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 99. 35 See Herczegh, above n. 8, at 35 (noting that “there can be no question of a legal principle or a general principle of law unless a general, comprehensive rule of conduct has been made manifest in statutory provisions or custom and unless the provisions of the totality of a system of law, or parts of it, have been permeated by a norm expressed by the principle in question”). 36 Mendelson, ‘Practice, Propaganda and Principle in International Law’, 42 Current Legal Problems 1 (1989), at 16 (noting that “[t]he fundamental principles of international law simply reflect […] the current assumptions of the present state system”); Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 280 (referring to Cassese who “[saw] the general principles of law as ‘constitutional principles’ forming the ‘pinnacle of the legal system’”). 37 Herczegh, above n. 8, at 43 (noting that “[w]hen we […] speak of the general principles of international law […] we have in mind […] certain rules of a general content and universal validity”). 38 Schwarzenberger, above n. 26, at 201–202 (noting that “[l]egal principles may […] be defined as abstractions or generalisations”); Thirlway, above n. 34, at 94 (general principles are not case-specific, referring to Dworkin). 39 Kleinlein, above n. 5, at 141 (quoting Brownlie’s Principles of Public International Law), 143; de Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications

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General principles are mostly derived from domestic law – the “legal systems of civilized states”;40 however, they may also derive from natural law and justice41 or even from international law. Found in the Court’s reasoning, 42 general principles fill the gaps of international law when no treaty rule or rule of customary international law is available.43 General principles are the source of international law that depends the least on State practice.44 Scholars interpret ‘fundamental’ general principles as those “without which no legal system can function at all”,45 those that represent the foundations of a system,46 and/or those representing “the highest common denominator of relevant rules”.47 Haraszti suggests that a fundamental general principle is that of non-intervention.48 Mendelson lists as ‘fundamental’ general principles those of “sovereign equality of states, the performance in good faith of agreements,

40 41

42 43 44

45 46

47 48

for the International Court of Justice’, xlvii Neth. Int’l L. Rev. 181 (2000), at 187 (referring to the “very abstract nature” of general principles). Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 774 (referring to Brierly); Thirlway, above n. 34, at 99. Gerald Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today’, First Part of an Abstract of a Special Report, Institute of International Law (Rome, 1973), at 993–994. See also Bassiouni, above n. 40, at 774; Wouters, Coppens and Geraets, above n. 32, at 44 (referring to Dworkin). Cf. Kunz, ‘The General Principles of Law by A.M. Stuyt’, 41 Am. J. Int’l L. 2, 487 (1947), at 487 (noting that “international tribunals apply concrete rules, not abstract principles”). Thirlway, above n. 34, at 99; Redgwell, above n. 31, at 12 (noting that general principles “reinforce legal reasoning” by referring to Raimondo). Thirlway, above n. 34, at 98 (general principles “enable rules of law which can fill gaps or weakness in the law”); Bassiouni, above n. 40, at 775 (functional uses of general principles are an alternative to the (unsolved) doctrinal debates). Yotova, above n. 36, at 285 (noting “that the available state practice does not seem to offer any conclusive evidence of a dominant approach towards the definition or identification of the general principles of law”); Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co., 1943), at 611 (noting that general principles require less State participation compared to other sources). Thirlway, above n. 34, at 99. Schwarzenberger, above n. 26, at 207 (referring to principles that are “part of the groundwork of international law and [are] firmly linked with its foundations”); SkomerskaMuchowska, ‘Some Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law’, Polish Y. Int’l L. (2017), at 258 (noting that the “fundamental principles of the international legal order […] are good faith, pacta sunt servanda, the rule of law, sovereign equality of States and the non-use of force, etc.”). Schwarzenberger, above n. 26, at 195. Herczegh, above n. 8, at 44 (referring to non-intervention as “‘one of the most important basic principles of international law’”; quoting Haraszti).

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state responsibility, freedom of the seas, and so on”.49 A general principle that both the scholars and the Court agree is a ‘fundamental’ one is the general principle of self-determination.50 For Schwarzenberger ‘fundamental’ principles are a specific type of general principle, the remaining general principles form a ‘subordinate’ source of international law.51 However, there is “[n]o clear-cut dividing line […] between a principle and a fundamental principle of law”.52 In practice, the Court refers to ‘principles’ and ‘fundamental principles’ simultaneously. For example, in United States Diplomatic and Consular Staff in Tehran the Court considered the “principles of the Charter of the United Nations [alongside …] the fundamental principles enunciated in the Universal Declaration of Human Rights”.53 Some scholars distinguish between general principles in the narrow sense and the general principles in the broader sense. There are again varying interpretations as to what these two categories encompass. For Kleinlein, general principles in the narrow sense encompass those general principles that have been recognised only in domestic law, while general principles in the broader sense also encompass those principles that originate in international law.54 Schwarzenberger interprets the category of general principles in the narrow sense to include only the fundamental general principles, while general principles in the broader sense encompass also ‘subordinate’ or ‘auxiliary’ general principles.55 Most scholars are firmly convinced that general principles derive solely from domestic legal systems, whether from all or a “wide range of national ­legal systems”,56 or from civilised as opposed to ‘uncivilised’ States (if the latter

49 50 51 52 53 54 55 56

Mendelson, above n. 36, at 16. Bassiouni, above n. 40, at 797; Yotova, above n. 36, at 307 (referring to the Court’s jurisprudence). The general principle of self-determination of peoples is listed under Digest ­number 45. Schwarzenberger, above n. 26, at 195. Herczegh, above n. 8, at 34; Schwarzenberger, above n. 26, at 198 (attempting to distinguish fundamental general principles from the remainder principles). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶91 (24 May) (emphases added). Kleinlein, above n. 5, at 134. Schwarzenberger, above n. 26, at 195. Greenwood, above n. 7, at 3–4. See also Akehurst, ‘Equity and General Principles of Law’, 25 Int’l & Comp. L. Q. 4, 801 (1976), at 819 (noting that “[a] principle which is accepted in only a minority of States of the world cannot be said to be a general principle of law”; emphasis in original).

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category exists at all).57 However, a belief that is gaining popularity is that general principles may also be derived from international law.58 There are as many theories on how general principles emerge or are identified as there are scholars. What is sometimes unclear is whether scholars refer to general principles within the meaning of Article 38(1)(c) and international law (as opposed to ‘international morality’) while elaborating upon so-called ‘general principles’,59 as not all scholars refer to Article 38(1)(c) when analysing (their) general principles.60 Scholars did not identify many general principles within the meaning of ­Article 38(1)(c) in the Court’s jurisprudence: from a handful of general principles to the maximum 39 general principles. Scholars confirm their findings by relying also on the judges’ individual opinions and even by referring to the jurisprudence of other international tribunals that show less reservation in elaborating on general principles. For example, Cheng and Yotova each identified over a dozen general principles.61 While Yotova relied solely on the Court’s jurisprudence, Cheng ascertained general principles by considering a plethora of international tribunals.62 Kotuby and Sobota identify as many as 39 general principles; however, they ascertain general principles predominately in arbitral awards.63 Scholars sometimes advocate for the existence of their favourite general principle, regardless of whether it has been mentioned by the Court. For example, de Wet champions the general principle of judicial review,64 while Sykes compellingly argues for the existence of the general principle concerning the humane treatment of animals.65 However, neither of the two general principles finds its place in the Court’s jurisprudence, which may by due to the 57 58 59

Bassiouni, above n. 40, at 774 (referring to Brierly). See, e.g., Kleinlein, above n. 5, at 134–135. See also Wouters, Coppens and Geraets, above n. 32, at 44 (in relation to their second categorisation (or ‘characteristic’) of legal principles). 60 For example, there is no mention of Article 38(1)(c) in Mendelson’s 1988 lecture-turnedarticle under the heading ‘The Place of Principle’. Mendelson, above n. 36, at 15–17. 61 See Yotova, above n. 36, at 294–299. 62 Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), xxxi–xliii. 63 Kotuby and Sobota, General Principles of Law and International Due Process (Oxford: Oxford University Press, 2017), at 211–271 (Annex of Cases). 64 De Wet, above n. 39, at 182. 65 Sykes writes that “Michael Bowman, Peter Davies, and Catherine Redgwell have proposed that there is a general principle of law concerning animal welfare within the meaning of Article 38”. Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’, 49 Canadian Y. Int’l L. 3 (2011), at 5.

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subjects the Court is restricted to considering. Additional principles ­ascertained by scholars that had not (yet) been mentioned in the Court’s jurisprudence are the principles of expediency,66 cooperation,67 exceptio non adimpleti contractus,68 competence,69 of government for the benefit of the governed70 and “a principle of systemic institutional integration”,71 to name a few.72 Some scholars consider only those general principles that have also been recognised by the Court. Schwarzenberger, for example, writes about the general principles of sovereignty, recognition, consent, good faith, self-defence, international responsibility and the freedom of seas,73 all of which find their place in the Court’s jurisprudence. A few of the most popular general principles among the scholars that have also been considered by the Court are the general principles of good faith,74 pacta sunt servanda75 and reciprocity.76 3.2

Conclusions on General Principles

Scholars have suggested that any findings concerning general principles be ‘codified’, either in a draft Code77 or as part of a treaty on general principles comparable to the Vienna Convention on the Law of Treaties (vclt).78 Codifying general principles in a treaty format would unnecessarily conflate the two sources of international law – the third source (general principles) would be placed in the form of the first source (treaties) – and effectively preclude general principles from evolving. Developing certain conclusions on general

66 67 68 69 70 71 72 73 74 75 76 77 78

Hersch Lauterpacht, ‘Spinoza and International Law’, 8 Brit. Y.B. Int’l L. 89 (1927), at 98. Gerald Fitzmaurice, above n. 41, at 989, 991, 992. Wouters, Coppens and Geraets, above n. 32, at 60–61. Cheng, above n. 62, at 261. Gerald Fitzmaurice, above n. 41, at 992. Andenæs and Leiss, ‘The Systematic Relevance of “Judicial Decisions” in Article 38 of the icj Statute’, 77 ZaöRV 907 (2017), at 915. Some even argue that there is a general principle of jus cogens. See Gerald Fitzmaurice, above n. 41, at 993. Schwarzenberger, above n. 26, at 214–371. See Kolb, Good Faith in International Law (Oxford: Hart Publishing, 2017); Bassiouni, above n. 40, at 797; Schwarzenberger, above n. 26, at 290–326; G Fitzmaurice, above n. 41, at 990 (obligation to negotiate in good faith). Wouters, Coppens and Geraets, above n. 32, at 58. Ibid., at 60–61. See Cheng, above n. 62, at 397–399 (Draft Code of General Principles of Law). Bassiouni, above n. 40, at 818 (noting that the vclt codified general principles related to treaty law).

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­ rinciples, however, may prove to be beneficial for reaching an agreement of p the international community on this thrid source of international law. This section presents four Conclusions on the nature of general princi­ ples as codified in Article 38(1)(c). Each Conclusion contains several sub-­ conclusions. The findings presented here are based exclusively on the study of the Court’s jurisprudence. However, they are complemented with the relevant scholarship on the topic whenever possible. 3.2.1 Conclusion 1: General Principles Are ‘Principles’ and ‘Rules’ Sub-conclusions – General principles are rules that may be either broad or specific − General principles may have exceptions − General principles may or may not have a name; the Court’s reference to the same general principle may vary throughout its jurisprudence − Methods are not a modality of the sources of international law. General principles were introduced into the draft pcij Statute in 1920 as ‘rules of international law as recognized by the legal conscience of civilized nations’.79 Root and Phillimore changed the wording of paragraph 3 to ‘general principles of law recognized by civilized nations’. However, paragraph 3 retained its ‘rule’ nature pursuant to the word ‘rules’ in the chapeau of the draft Article 35, which provided that “the following rules are to be applied by the Court”80 and referred to all three sources of international law. The League of Nations subsequently simplified the chapeau to ‘the Court shall apply’. As with the word ‘sources’, the current version of Article 38(1) does not mention the word ‘rules’. D’Aspremont notes that the sources of international law are not ‘rules’ themselves, but that sources “manifest themselves in practice” through ‘rules’.81 Thirlway takes a similar stand and suggests that general principles are not ‘rules’ but only foster the creation of rules.82 However, the wording of the 1920 chapeau of the draft of Article 35 attests that the acj considered all three sources – treaties, custom and general principles – as able to take the form of ‘rules’ of international law.

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Procès-Verbaux of the Proceedings of the Committee, 16 June-24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 306 (Annex no. 3; emphasis added). Ibid., at 344 (Annex No. 1; emphasis added). D’Aspremont, above n. 12, at 105. Thirlway, above n. 34, at 98 (noting that general principles enable rules; emphasis added; citing the 9th edition of Oppenheim’s International Law).

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‘Rules’ and ‘principles’ represent two modalities that give expression to international law.83 In its jurisprudence, the Court considers both ‘principles’ and ‘rules’ of international law. For example, the Court in Legality of the Threat or Use of Nuclear Weapons referred to “longstanding principles and rules of international law”.84 The Court’s Chamber in the Gulf of Maine noted that “the association of the terms ‘rules’ and ‘principles’ is no more than the use of a dual expression to convey one and the same idea”.85 The distinction between ‘rule’ or a ‘principle’ is more related to the concrete imperatives the norm carries – present in the modality of ‘rules’, but not in the modality of ‘principles’ – and not their legally binding nature in international law.86 All three sources of international law manifest themselves as ‘rules’ and ‘principles’.87 The modality of ‘principles’ is not confined solely to the third source of international law and, vice versa, the modality of ‘rules’ is not confined solely to the first and second sources of international law. The Court referred consistently to ‘principles’ as part of treaties and customary international law.88 For example, in Military and Paramilitary Activities, the Court stated that 83

See also Int’l L. Comm’n, ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, Report of the Study Group of the Int’l L. Comm’n (2006), U.N.Doc. A/CN.4/L.702, at ¶14 (considering both ‘principles’ and ‘rules’ as norms of international law); Skomerska-Muchowska, above n. 46, at 258 (arguing that there is a “hierarchical differentiation between rules and principles”); Kwiecień, ‘General Principles of Law: The Gentle Guardians of Systemic Integration of International Law’, Polish Y. Int’l L. (2017), at 236. 84 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶76 (8 July) (emphases added). 85 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶79 (12 Oct.). The Court continued by stating that “in this context ‘principles’ clearly means principles of law, that is, it also includes rules of international law in whose case the use of the term ‘principles’ may be justified because of their more general and more fundamental character”. Ibid. 86 For other views on differentiation between ‘rules’ and ‘principles’ see SkomerskaMuchowska, above n. 46, at 258–259 (referring to Gerald Fitzmaurice); see also Kwiecień, above n. 83, at 235 (noting that “rules apply in ‘all-or-nothing fashion’, whereas principles have ‘the dimensions of weight and importance’ and must be taken into account by decision makers as suggesting a given direction without necessitating a particular decision”). 87 Cf. Skomerska-Muchowska, above n. 46, at 258 (implying that general principles cannot be composed of ‘rules’); Kwiecień, above n. 83, at 242 (noting that “[t]hese principles are neither rules nor vague ideas. They are rather norm-sources, which aim to develop the rules of constitutional importance”). 88 See Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624, at ¶177 (19 Nov.) (referring to “long-established principles of customary international law”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶79

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if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the [United Nations] Charter, it is to be expected that the conditions of the Charter should be respected.89 Similarly, the same treaty – a source encompassed in Article 38(1)(a) of the Court’s Statute – may embody both ‘principles’ and ‘rules’. For example, the Outer Space Treaty provides in Article v that States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas.90 Article v lays down an explicit requirement that Parties to the treaty are to assist the astronauts and additionally specifies the circumstances in which the assistance is required. Therefore, Article v represents a ‘rule’ modality. However, Article i of the same treaty provides that [t]he exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.91 Unlike Article v, Article i does not contain a concrete imperative. In other words, it does not provide for any rights and obligations and does not specify its purpose, which is to ensure that outer space exploration is carried out in the interests of the international community. This provision, therefore, represents the modality of a ‘principle’ rather than that of a ‘rule’.

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(8 July) (referring to “intrasgressible principles of international customary law”); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶157 (9 July). See also Saganek, ‘General Principles of Law in Public International Law’, Polish Y. Int’l L. (2017), at 247 (noting that “[t]here is no problem with labelling some treaty provisions as principles or rules”). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶200 (27 June) (emphasis added). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty), 27 Jan. 1967, art. v. Ibid., art. i.

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Both Articles i and v are treaty provisions within the meaning of Article 38(1)(a) of the Court’s Statute and binding on the Contracting States (or beyond, to the extent that the provisions are recognised as reflecting customary international law). However, Article v of the treaty encompasses a modality of a ‘rule’, whereas Article i represents the modality of a ‘principle’. Customary international law is also comprised of ‘principles’ and ‘rules’. Lepard, for example, states that both ‘principles’ and ‘rules’ are types of norms92 and acknowledges that customary international law is composed of both modalities.93 A typical example of a ‘rule’ of customary international law appears, for example, in Maritime Delimitation and Territorial Questions between Qatar and Bahrain, when the Court noted that there is a rule of customary international law in this domain […] that the Court cannot take account of declarations, admissions or proposals which the parties may have made in the course of direct negotiations when the negotiations in question have not led to an agreement between the parties.94 As another example, the Court in the 2007 Application of the Genocide Convention stated that “[it] will determine whether the Respondent has incurred responsibility under the rule of customary international law set out in Article 8 of the ilc Articles on State Responsibility”.95 The Court does not always note that the customary norm is expressed in the ‘rule’ modality. For example, the Court in the Wall advisory opinion omitted the word ‘rule’, although it relied on a ‘rule’ of customary international law when noting that under customary international law […] territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.96 92 Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), at 162. 93 Ibid. 94 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Preliminary Objections [1994] i.c.j. 112, at ¶40 (1 July) (emphasis added). 95 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶407 (26 Feb.) (emphasis added). 96 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶78 (9 July).

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Among the scholars, McCormack for example writes about the “principles of customary international law governing the conduct of armed conflict”.97 However, the Court’s ascertainment of a customary norm in the modality of a ‘principle’ is not as straightforward as that of ascertaining a ‘rule’ of customary international law. The Court referred to a ‘principle’ of customary international law, for example, in the 2007 Application of the Genocide Convention. In ruling on the claim of reparation, the Court considered to what extent is the Respondent required to make reparation of the consequence of wrongful conduct “in accordance with the principle of customary international law”.98 However, this statement is not as straightforward as it prima facie appears to be. In its jurisprudence, the Court had already referred to a general principle of reparation. Was the Court in its 2007 decision referring to a ‘principle’ modality within Article 38(1)(b) or a ‘rule’ modality within Article 38(1)(c) that had also been transplanted into customary international law? In the author’s view, the former answer is correct. The fact that the Court is referring to a customary norm as a ‘principle’ does not necessarily reflect the norm’s modality, that is, whether the customary norm is a ‘rule’ or a ‘principle’. For example, the Court in Territorial and Maritime Dispute said that “[i]n accordance with long-established principles of customary international law, a coastal State possesses sovereignty over the sea bed and water column in its territorial sea”.99 The Court’s determination that ‘a coastal State possesses sovereignty over the sea bed and water column in its territorial sea’ clearly establishes an imperative – it acknowledges the right of States to sovereignty and obligations of other States to respect that sovereignty over the sea bed and water column in the territorial sea. Therefore, this ‘principle of customary international law’ is actually in the modality of a ‘rule’ and not in the modality of a ‘principle’. As is the case with treaties and customary international law, general principles are also composed of ‘principles’ and ‘rules’. Owing to their name (general principles), however, scholars consider them largely (if not exclusively) within the modality of ‘principles’. Redgwell, for example, considers only the modality of ‘principles’ of the general principles but omits to mention the possibility 97 98 99

McCormack, ‘A non liquet on nuclear weapons: The icj avoids the application of general principles of international humanitarian law’, 37 Int’l Rev. Red Cross 316, 76 (1997), at 77 (emphasis added). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶462 (26 Feb.) (emphasis added). Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624, at ¶177 (19 Nov.) (emphasis added).

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that general principles also contain ‘rules’. In her view, general principles do represent obligations but are not binding in the sense of being directly applicable because of their alleged abstract nature.100 Redgwell rightly points out that the modality of ‘principles’ within the general principles may not be binding per se. She does not, however, view general principles as capable of containing a specific imperative or direction. An example of a modality of a ‘principle’ within the category of general principles is the sound administration of justice.101 Although very important in any given legal system, this general principle provides little guidance as to what it specifically encompasses. Sound administration of justice does not contain any concrete imperative that the Court would have to follow in applying it to its procedure, and it is therefore in the modality of a ‘principle’ rather than a ‘rule’. Another example of a modality of a ‘principle’ within the category of general principles is the general principle of humanity.102 What does this general principle provide? Can we deduce concrete conduct that is expected from the international community pursuant to this general principle? Not providing concrete guidance or an imperative for the Court or the international community as to its content or the conduct that it (supposedly) warrants this general principle is also within the ambit of ‘principles’ rather than ‘rules’. An example of a general principle that manifests itself as a ‘rule’ (as opposed to a ‘principle’) is the general principle that a territorial regime established by a treaty achieves a permanence which the treaty itself does not enjoy.103 The Court in Territorial Dispute (Libya/Chad) noted that this general principle provides that a boundary can outlive a treaty. It said that [a] boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary.104

100 Redgwell, above n. 31, at 10–11. 101 See e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶59 (27 June) (also referring to “essential principles of the sound administration of justice”; emphasis added). 102 Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4, at 22 (9 Apr.). 103 The general principle of the stability of boundaries (or the general principle that a territorial regime established by a treaty achieves a permanence which the treaty itself does not enjoy) is classified under Digest number 38. 104 Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶73 (3 Feb.).

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Unlike the examples of the general principle of sound administration of justice or humanity, this general principle carries a concrete imperative that the territorial regime established by a treaty is to be respected independently of the treaty that established the territorial regime. This general principle requires States to respect the territorial regime also when the treaty that established it is not yet in force. Another example of a general principle in a ‘rule’ modality is the general principle that rights cannot be derived from the mere fact of membership of the organisation.105 This general principle precludes States from obtaining certain rights and obligations pursuant to their membership in an international organisation. As the Court explained in South West Africa, the rights that member States can legitimately claim must be derived from and depend on the particular terms of the instrument constitutive of the organization, and of the other instruments relevant in the context. This principle is necessarily applicable as regards the question of what rights member States can claim in respect of a régime such as results from the mandates system, functioning within the framework of the organization.106 Although referred to as a ‘principle’ in the text of the decision, this general principle represents the modality of ‘rules’. The predominant view among scholars – for example, Cheng, Gerald Fitzmaurice, Lloyd-Jones, Kolb, Kleinlein and Berry107 – is that the source termed ‘general principles’ cannot be in the modality of ‘rules’. The variety of reasons stated to support their opinions is that general principles do not have 105 The general principle that rights cannot be derived from the mere fact of membership of the organization in itself is classified under Digest number 44. 106 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶25 (18 July) (emphasis added). 107 Cheng, above n. 62, at 24 (writing that “[p]rinciples are to be distinguished from rules”); Parry, above n. 3, at 83 (quoting Cheng); Thirlway, above n. 34, at 94 (referring to Higgins and Gerald Fitzmaurice); Lloyd-Jones, ‘General principles of law in international law and common law’, Speech at Conseil d’État, Paris (2018), at 3; Berry, above n. 30, at 175 (general principles are “guiding standards rather than binding rules, and [are] therefore […] less likely to conflict directly with treaties or custom”). See also Gaja, above n. 27, at ¶31 (noting that “[o]nly rarely could one say that a certain principle may be inferred from more specific rules of international law”). But see Cheng, above n. 62, at 23 (noting that “international custom and general principles of law may all furnish valid rules operative in the international sphere and capable of solving international legal questions”; emphasis in original).

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a fixed meaning,108 are less specific than ‘rules’,109 are not binding as ‘rules’ but are merely persuasive,110 and that unlike ‘rules’ general principles do not specify the consequences that follow.111 Gerald Fitzmaurice, for example, makes an apparent distinction between general principles and the modality of ‘rules’, namely, that “[a] rule answers the question ‘What’; a principle in effect answers the question ‘why’”.112 In his attempt to avoid recognising general principles as ‘rules’, Parry suggests that general principles be viewed as methods for applying other sources of international law, rather than formal sources of international law in themselves.113 Parry further questions that if general principles are also ‘rules’, are they ‘rules’ of international law?114 Considering that the Court cannot rely directly on domestic laws in deciding on the content of international law or resolving an international dispute, the Court elevates those ‘rules’ that might be part of domestic law to the international level before applying them to the dispute at hand. There are very few scholars who hold a contrary view and are the proponents of the possibility that general principles are composed of the modality of ‘rules’. Herczegh, for example, notes that general principles are “frequently used to denote the rules of international law of universal validity”.115 Similarly, Pellet cites the Court’s jurisprudence that interprets the expression ‘principles of law’ as also standing for the ‘rules of international law’.116 Schwarzenberger takes the middle approach and notes that general principles “are merely abstractions from […] rules [of international law]”.117 Similarly, d’Aspremont notes that general principles generate ‘rules’,118 while Bassiouni opines that ‘rules’ are the expressions of general principles.119 108 Yotova, above n. 36, at 278 (referring to Kolb). 109 Kleinlein, above n. 5, at 139–141 (referring to Raz, Dworkin, Alexy, von Bogdandy and Akehurst); Lepard, above n. 92, at 162. 110 Ibid., at 140 (referring to Lepard). 111 Ibid. (referring to Dworkin); Wouters, Coppens and Geraets, above n. 32, at 44. 112 Thirlway, above n. 34, at 94 (quoting Gerald Fitzmaurice). 113 Parry, above n. 3, at 84. 114 Ibid., at 90. 115 Herczegh, above n. 8, at 42 (emphasis added). Cf. Yotova, above n. 36, at 277 (noting that “Herczegh distinguishes principles from rules based on their level of generality”). 116 Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 767 (referring to the Gulf of Maine decision). 117 Schwarzenberger, above n. 26, at 204, 210. 118 D’Aspremont, above n. 24, at 166–167. 119 Bassiouni, above n. 40, at 775.

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The deep-rooted scholarly belief that general principles encompass solely the modality of ‘principles’ may have contributed to a significant distortion in how the international community relates to the third source of international law. Yotova, for example, in defining the word ‘principle’ within the meaning of Article 38(1)(c) resorts to the Oxford Dictionary, explores its Latin origins and relies on the definition given by the Institut de Droit International.120 Such limited interpretation necessarily results in ambiguous meaning “open to varying interpretations”121 and fosters unjustified conclusions that general principles are “a vague and imprecise notion”.122 The difficulties scholars, practitioners and potentially international judges encounter in considering general principles could be easily solved by recognising that all three sources of international law contain both modalities of ‘rules’ and ‘principles’. It is not the author’s intent to deprive the general principles of their modality as ‘principles’, but to establish that in addition to the modality of ‘principles’, the source termed ‘general principles’ also encompasses the modality of ‘rules’. In fact, general principles are predominately composed of ‘rules’ and not ‘principles’, which may explain the scholarly dismissive attitude toward this source that stems from a limited point of view. D’Aspremont rightly points out that scholars are keen to refer to the elements of international law as ‘rules’ in order to attach to them the notion of ‘bindingness’. However, the ‘ruleness’ is not necessarily connected to the norms’ binding or non-binding nature.123 For example, the modality of ‘principles’ that are incorporated in a treaty is legally binding among the Contracting Parties and does not lose its binding nature because of its status as a ‘principle’ (as opposed to a ‘rule’). And the contrary is true – notions in the modality of ‘rules’ are not automatically binding in international law because of their status as ‘rules’ (as opposed to ‘principles’). For example, the International Law Commission’s draft articles contain a number of ‘rules’; however, they are not binding until States decide to adopt them in the form of a treaty or until the Court declares them as belonging to customary international law or general principles. All ‘principles’ and ‘rules’ that derive from the sources of international law are ‘legal’, save potentially for those that the Court declares pursuant to its ex aequo et bono decision, in accordance with Article 38(2) of its Statute.

120 121 122 123

Yotova, above n. 36, at 278, 281. Ibid., at 281. Kleinlein, above n. 5, at 141. D’Aspremont, above n. 12, at 110, 127.

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The Court sometimes refers to ‘rules and principles’ (or ‘principles and rules’). This expression has two possible interpretations, namely, that the expression ‘rules and principles’ alludes to the modality of a norm in relation to its concrete imperative (or the absence thereof if it is a ‘principle’) or that by referring to ‘rules and principles’ the Court actually refers to ‘law’, in particular to international law. The latter interpretation is a more probable one, as the phrase ‘applicable rules and principles’ – most likely referring to the ‘applicable international law’ – appears quite often in the Court’s jurisprudence.124 As the Court in Kasikili/Sedudu Island observed, the expression ‘rules and principles’ “is very general and, if interpreted in its normal sense, could not refer solely to the rules and principles of treaty interpretation”.125 Indeed, the expression ‘rules and principles’ refers to international law in its entirety. The expression ‘principles and rules’ also appears in the Parties’ Special Agreements or the Requests for advisory opinions.126 The Court is, for example, asked to decide “what are the [applicable] legal principles and rules [of international law]”.127 In such instances, the disputing States seek clarification on a point of international law. In Kasikili/Sedudu Island the Court expanded upon the Parties’ request to decide in accordance with the ‘rules and principles’ of international law by noting that [e]ven if there had been no reference to the ‘rules and principles of international law’, the Court would in any event have been entitled to apply the general rules of international treaty interpretation.128 124 See, e.g., Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶¶26, 37, 114 (24 Feb.); Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] i.c.j. 3, at ¶14 (21 Mar.) (noting that the Parties’ Special Agreement confined “the Court’s task […] to indication of the principles and rules of international law applicable to the delimitation”); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40, at ¶176 (16 Mar.) (“rules and principles of customary law to be applied to the delimitation”; emphasis added). 125 Kasikili/Sedudu Island (Bots. /Namib.), Judgment [1999] i.c.j. 1045, at ¶93 (13 Dec.). 126 See, e.g., Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶21 (3 June); Kasikili/ Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶¶91–92 (13 Dec.); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶39 (9 July) (considering the General Assembly’s request for an advisory opinion). 127 Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶¶35–36, 48 (20 Dec.). See also Continental Shelf (Tunis./Libya), Application by Malta for Permission to Intervene [1981] i.c.j. 3, at ¶33 (14 Apr.) (noting that “the Court is requested to decide what are the principles and rules of international law which may be applied”); Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶2 (24 Feb.) (Parties’ Special Agreement). 128 Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶93 (13 Dec.).

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The expression ‘rules and principles’ in the Court’s jurisprudence mostly stands for the ‘applicable international law’, i.e., norms of international law, whether they are codified in treaty provisions, are forming part of customary international law or are ascertained as general principles. Some authors acknowledge that the Court in practice uses the terms ‘rule’ and ‘principle’ interchangeably.129 Yotova, for example, observes that “[t]here are also those who deny the meaningfulness of the distinction between rules and principles, arguing that both can be a direct source of rights and obligations”.130 The Court’s practice suggests, however, that when referring to ‘rules and principles’ – although referring to international law – the Court has in mind mainly treaties and customary international law.131 The Court often omits to cite general principles when referring to custom and treaties, by noting, for example, that “a rule of international law [may be either …] customary or conventional”132 or has referred to “treaties or to the other sources of law enumerated in Article 38 of the Statute”.133 Among the many examples, the Court in the Wall advisory opinion noted that [the relevant] rules and principles can be found in the United Nations Charter and certain other treaties, in customary international law and in the relevant resolutions adopted pursuant to the Charter by the General Assembly and the Security Council.134 Although not listing general principles among the applicable international law, the Court in Wall advisory opinion ascertained at least three general principles. 129 Bassiouni, above n. 40, at 793, quoting Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article iv), Advisory Opinion [1928] p.c.i.j. (ser.B) No. 16, at 20 (28 Aug.); Pellet, above n. 116, at 766–767 (referring to the Gulf of Maine decision); Mendelson, ‘The International Court of Justice and the sources of international law’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), at 80. 130 Yotova, above n. 36, at 278. See also Sykes, above n. 65, at 42 (describing the ‘principle’ of humane treatment of animals as “a general rule in that it purports to express an obligation that applies to human beings universally”; emphasis added). 131 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶59 (14 Feb.) (considering immunities under treaty and customary law). 132 Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶10 (20 Dec.). 133 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶172 (27 June). 134 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶86 (9 July).

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An expression present in the Court’s jurisprudence that resembles (but is not to be equated with) ‘rules and principles’ is the expression ‘principles and rules of international law’. When the Court decides in accordance with the “principles and rules of international law”,135 it bases its decision on the relevant international provisions. For example, in the 2005 Armed Activities on the Territory of the Congo, the Court said that “[it] needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose”.136 Similarly, in Continental Shelf (Libya/Malta), the Court referred to the ‘principles and rules of the law of the sea’ “which should enable the Parties to effect a delimitation of the areas of continental shelf between the two countries”.137 Also in the Wall advisory opinion, the Court established that Israel had breached international law after having determined the relevant “rules and principles of international law”.138 Another similar expression is ‘principles of international law’. Although referring to ‘principles’, the expression ‘principles of international law’ usually does not relate specifically to Article 38(1)(c) but to international law in general, as the expression ‘rules and principles’ does. For example, the Court in “Lotus” stated that “the words ‘principles of international law’, as ordinarily used, can only mean international law as it is applied between all nations belonging to the community of States”.139 There may be some truth, however, in Pellet’s statement that the Court’s introduction of the expression ‘principles of international law’ “might have been an attempt […] to deprive the general principles mentioned in para. 1(c), of any specificity”.140

135 Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶52 (10 Dec.). See also Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶43 (14 Feb.) (referring to “rules and principles of international law governing the jurisdiction of national courts”); Yotova, above n. 36, at 304 (referring to Gulf of Maine decision). 136 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168, at ¶215 (19 Dec.). 137 Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶76 (3 June). See also ibid., ¶31 (referring to the “principles and rules of the law of the sea today”); Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92, at ¶82 (13 Sept.) (referring to the “principles and rules of the law of the sea”). 138 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ­Advisory Opinion [2004] i.c.j. 136, at ¶¶114, 120 (9 July). 139 “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 16 (7 Sept.). See also Pellet, above n. 116, at 767; Herczegh, above n. 8, at 43 (distinguishing between general principles and the ­expression ‘principles of international law’). 140 Pellet, above n. 116, at 767.

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General principles are expressed either as ‘rules’ or ‘principles’, but they are not methods. A method “results from the applicable principles and rules of international law”,141 but it is not international law per se, whereas general principles are ‘rules’ or ‘principles’ of international law (per se). Methods are essentially a way in which ‘rules’ and ‘principles’ of any of the three sources are implemented, and they are not obligatory. Methods may be prescribed by mandatory rules but are not rules (or legal ‘principles’) themselves. In practice, the Court has referred to methods especially in cases of maritime and land delimitation. General principles differ from the methods because – unlike methods – ­general principles are independent norms in the modality of ‘rules’ and ‘principles’. In contrast, a method is only a means of executing another (external) norm, be it a treaty provision, customary norm or a general principle, in any of the two modalities (i.e., ‘rules’ or ‘principles’). For example, the Court in the 1951 Fisheries case said that the general principle that the belt of territorial water must follow the general direction of the coast could be applied through various methods.142 Another difference between the general principles and methods is that – unlike general principles – there may be more methods applicable to one set of circumstances. For example, the Court in Continental Shelf (Tunisia/Libya) said that the equidistance method “may be applied if it leads to an equitable solution; if not, other methods should be employed”.143 According to the Court, the equidistance method works better “in the case of coasts opposite to one another, when the equidistance line becomes a median line, than in the case of adjacent States”.144 Similarly, in Continental Shelf (Libya/Malta), the Court said that “the equidistance method is not the only method applicable to the present dispute, and it does not even have the benefit of a presumption in its favour”.145 The reason why some equate general principles with methods is that the Court sometimes uses the word ‘principle’ in describing a method or uses the same name to refer to the general principle and the ensuing method. An example of the State attaching the word ‘principle’ to a method is provided in the 141 Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶59 (3 June). 142 In this case, the United Kingdom proposed another method, namely, the method of “‘­envelopes of arcs of circles’”, but the Court did not apply it. Fisheries (U.K. v. Nor.), Judgment [1951] i.c.j. 116, at 129 (18 Dec.). The general principle that the belt of territorial ­waters must follow the line of the coast is classified under Digest number 63. 143 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶109 (24 Feb.). 144 Ibid., at ¶126. 145 Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶63 (3 June).

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Oscar Chinn case, where the Parties asked the Court “to indicate the principles upon which such reparation shall be calculated and to determine the procedure where the said amount shall be ascertained”.146 Although using the term ‘principles’, the Parties have requested the Court to determine the method of calculating damages.147 Norms classified as general principles range from general (or broader) to specific, as treaty provisions and norms of customary international law do. There are multiple scholarly interpretations of the meaning of the word ‘general’ as used in the Article 38(1)(c) formulation. For Gaja, the word ‘general’ is connoted in the word ‘principle’.148 Kleinlein similarly argues that “international courts and tribunals use the term ‘principles’ in order to denote the general character and fundamental importance of the norm in question”.149 If correct, the proposition that the expression ‘principle’ contains within itself the understanding of a certain level of generality leads to the conclusion that the word ‘general’ in ‘general principles’ is redundant. However, scholars have understood the word ‘general’ as limiting the content of the general principles to only those that have a ‘general’ content.150 Scholars seem to prefer considering only the ‘general’ general principles, because their ‘generality’ is considered as a way of “preserv[ing] the evolutionary character of international law”.151 Kleinlein, for example, links the evolutionary function of general principles in progressively developing international law to their abstract (i.e., ‘general’) nature.152 Akehurst and Bassiouni allow for the possibility that some general principles have a ‘specific’ – and not solely a ‘­general’ – content. Akehurst, for example, suggests that “there is no reason why detailed rules which happen to be common to different systems of municipal law should not be applied as general principles of law”.153 Bassiouni compared ‘general’ and ‘specific’ general principles, and classified as ‘general’ the principles of justice, fairness, equality, and good faith, while the ‘specific’

146 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 67 (12 Dec.). 147 Ibid. 148 Gaja, above n. 27, at ¶31 (noting that “the term principles denotes the general nature of the norm in question”). 149 Kleinlein, above n. 5, at 141. 150 See Herczegh, above n. 8, at 69 (writing that “[t]he principles of law formulate and embody the postulates the legal system as a whole has to satisfy”). 151 Bassiouni, above n. 40, at 771. See also ibid., at 776, 804. 152 Kleinlein, above n. 5, at 143. 153 Akehurst, above n. 56, at 815.

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general principles are, according to him, those related to territorial criminal jurisdiction and treaty interpretation.154 Some scholars interpret the word ‘general’ as an antonym of the word ‘international’. For example, in his review of Stuyt’s 1946 work, Kunz wonders whether Stuyt referred to general principles “[o]f international law or of general law? Principles of general law, the author means”.155 Other meanings of the word ‘general’ are that of a ‘wide-ranging (norm)’,156 presumably applicable across various legal fields and that of a ‘widely recognized’ norm.157 De Wet, for example, reasons that “[l]egal principles could be described as general when they are to be found only in some legal systems, but can nonetheless be reconciled with the other legal systems”.158 The term ‘general’ is also interpreted to mean an ‘unspecific’ norm that refers to “‘some purpose, goal, entitlement or value’”,159 or a norm without a fixed content.160 In practice, both the ‘general’ and ‘specific’ general principles belong to ­Article 38(1)(c). Two examples of ‘general’ general principles ascertained by the Court are the general principles of freedom of navigation161 and of equal treatment.162 These two general principles cover international river and maritime law, without providing guidance on a number of situations that may arise in this context. In contrast, a more specific general principle is that an island generates the same maritime rights as other land territory.163 A more ‘general’ general principle may act as an ‘umbrella’ norm, encompassing the more specific general principles. For example, the general principle of conservation of fish stocks164 is the broader counterpart to the more

154 155 156 157 158 159 160

161 162 163 164

Bassiouni, above n. 40, at 772. Kunz, above n. 41, at 487. Pellet, above n. 116, at 767. Elias and Lim, above n. 28, at 24. De Wet, above n. 39, at 187. Yotova, above n. 36, at 278 (quoting Hart). Hudson, above n. 44, at 611. Kleinlein notes that the International Law Association considered that “‘principles operate at a higher level of generality than rules’”. Kleinlein, above n. 5, at 141 (quoting the 2000 International Law Association Final Report of the Committee on the formation of Customary (General) International Law; emphasis added). The general principle of freedom of navigation is classified under Digest number 60. The general principle of equal treatment (also referred to as general principle of equality) is classified under Digest number 56. The general principle that an island generates the same maritime rights as other land territory is classified under Digest number 72. The general principle of conservation of fish stocks is classified under Digest number 73.

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specific general principle that all States in exercising their freedom of fishing pay reasonable regard to the interests of other States.165 Along the same lines, general principles may form part of the ‘rules and principles’ of a particular area of international law. For example, ‘rules and principles’ of delimitation are comprised of four general principles, namely, the general principle of proximity,166 the general principle of natural prolongation,167 the general principle that the land dominates the sea168 and the equitable general principles.169 Similarly, among the ‘rules and principles’ related to boundary agreements are the general principle that delimitation must be the object of an agreement between the States concerned170 and the general principle that the delimitation agreement must be derived in accordance with equitable general principles.171 The two categories of ‘rules and principles’ mentioned here form – together with some other general principles (as outlined in the diagram below) – the ‘rules and principles’ of international maritime law, at least to the extent to which Article 38(1)(c) covers this area of international law. More information on each general principle (or principles) listed in the diagram is available in the Digest (Part 3). Together with treaties and customary international law (and any potential source that is outside the scope of Article 38(1)(c) of the Court’s Statute) general principles form part of an area of international law. For example, the ‘rules and principles’ of treaty interpretation are comprised of treaty provisions (vclt), norms of customary international law (mainly the customary counterparts of some vclt provisions) and the general principles of treaty interpretation (those embodied in vclt and others). Those general principles of treaty interpretation that are embodied in vclt are, for example, the general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such

165 The general principle that all States, including coastal States, in exercising their freedom of fishing, must pay reasonable regard to the interests of other States is classified under Digest number 25. 166 The general principle of proximity is classified under Digest number 75. 167 The general principle of natural prolongation is classified under Digest number 68. 168 The general principle that the land dominates the sea is classified under Digest number 69. 169 The equitable general principles are classified under Digest number 65. 170 The general principle that in the case of the delimitation of the continental shelf, delimitation must be object of agreement between the States concerned is classified under ­Digest number 59. 171 The general principle that a delimitation agreement must be arrived at in accordance with equitable principles is classified under the Digest number 64.

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Figure 3.1 ‘Rules and principles’ of international maritime law

i­nterpretation would lead to something unreasonable or absurd172 and the general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself.173 General principles of treaty interpretation that are outside the scope of vclt are the general principle

172 The general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd is classified under Digest number 144. 173 The general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself is classified under Digest number 139.

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that special words override the general expressions,174 the general principle that the intention of the Parties is decisive175 and the general principle of effectiveness.176 ‘Rules and principles’ of treaty interpretation form part of a broader field of the international law on interpretation, which regulates, for example, interpretation of customary international law, unilateral statements and acts, and resolutions and decisions of international organisations. An example of a general principle that belongs to this broader category of ‘rules and principles’ on interpretation (beyond the scope of treaty interpretation) is the general principle that only if State abstentions are based on their being conscious of having a duty to abstain is it possible to speak of international custom.177 As do treaty provisions and norms of customary international law, general principles may have exceptions that are for the Court to determine. For example, the Court in Mavrommatis Palestine Concessions decided that the inter­ national obligations of the Mandatory did not create an exception to the application of the general principle of subrogation.178 Similarly, the Court in the 2007 Application of the Genocide Convention case indicated that the existence of an exception to the principle of res judicata was very unlikely, but not impossible.179 Not all general principles have a specific name under which they are identified (e.g., the general principle of subrogation) as their content evolves. When the Court does not attribute a particular name to a general principle, it refers only to its content. For example, the Court referred to the general principle of

174 The general principle that special words override the general expressions (also known as lex specialis derogat legi generali) is classified under Digest number 146. 175 The general principle that the intention of the Parties in concluding an agreement is decisive is classified under Digest number 142. 176 The general principle of effectiveness (or the general principle according to which statements must be given their maximum effect in order to ensure the achievement of their underlying purposes; ut res magis valeat quam pereat; or the general principle of appropriate effect) is classified under Digest number 143. 177 The general principle that only if State abstentions are based on their being conscious of having a duty to abstain is it possible to speak of international custom is classified under the Digest number 147. 178 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 28 (30 Aug.). The general principle of subrogation is classified under Digest number 35. 179 The Court noted that “[there is no] principle of sufficient generality and weight to override the clear provisions of the Court’s Statute, and the principle of res judicata”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶119 (26 Feb.). The general principle of res judicata is classified under Digest number 148.

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kompetenz-kompetenz more often by its content rather than by its name (­kompetenz-kompetenz).180 The Court referred to it in Nottebohm as [the general principle] that, in the absence of any agreement to the contrary, the international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction.181 The Court also referred to the general principle of reasonable regard for the interests of other States (the general principle’s name) as the “principle […] that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States”182 (the general principle’s content).183 How the Court refers in its jurisprudence to the same general principle varies. The Court sometimes omits to label a norm a ‘principle’ in a particular decision, although it referred to the same norm as to a ‘principle’ in its previous decision. Although temporarily losing the label ‘principle’, the norm continues to evolve as a general principle and retains its status of an Article 38(1)(c) source. Akehurst agrees that “it may be that the cases can be interpreted as merely applying those principles, even though the principles are not mentioned by name [i.e., labelled as ‘principles’]”.184 An example of the Court’s varying reference to the same general principle is its consideration of diplomatic protection.185 The Court in the 1924 Mavrommatis Palestine Concessions referred to an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.186 180 181 182 183

The general principle of kompetenz-kompetenz is classified under Digest number 94. Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 119 (18 Nov.). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶67 (25 July). The general principle that all States, including coastal States, in exercising their freedom of fishing, must pay reasonable regard to the interests of other States is classified under Digest number 25. 184 Akehurst, above n. 56, at 806. 185 The general principle of diplomatic protection is classified under Digest number 122. See also Chapter 9. 186 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 12 (30 Aug.) (emphasis added).

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The Court in Mavrommatis did not use the expression ‘diplomatic protection’, although this is what this general principle came to be known as in the Court’s post-1945 jurisprudence. Over time, the Court labelled this general principle ‘diplomatic protection’ and omitted the label ‘principle’. However, the initial ‘elementary principle of international law’, which is the same norm as that labelled diplomatic protection, continues to exist as a general principle regardless of the Court’s change in nomenclature. All in all, the Court may ascertain the same general principle in several ways, the common denominator being the general principle’s content, not its name. Conclusion 2: General Principles Are ‘Principles’ and ‘Rules’ of International Law Sub-conclusions – General principles are part of the positive (existing) international law and do not form part of natural law – The Court applies only international law – Domestic laws, including ‘domestic principles’, are not part of international law – Doctrines and theories do not constitute general principles because they are not part of international law. 3.2.2

The Court decides in accordance with positive (i.e., existing) international law, as opposed to basing its decision on natural law.187 The Court noted that its task is to identify, interpret and apply the ‘rules and principles’ that “exist[] at the time of its decision”188 (save for certain exceptions, as provided by uti possidetis). As Kunz notes, “[s]ince 1794 no international tribunal has applied ‘natural law’”.189 General principles within the meaning of Article 38(1)(c) of the Court’s Statute form part of the positive international law, regardless of any possible pre-1920 connection to natural law. The Court confirmed the ‘positive’ 187 Skomerska-Muchowska, above n. 46, at 256; Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶52 (5 Feb.) (noting that “the position of the company rests on a positive rule of both municipal and international law”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶97 (8 July) (noting that it examined “the present state of international law viewed as a whole”). 188 Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶40 (25 July). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶38 (9 July) (noting that it “[it] ‘identif[ies] the existing principles and rules, interpret[s] them and appl[ies] them’”); Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶80 (19 Dec.) (noting that a particular expression had to be “interpreted in accordance with the rules of international law as they exist today”). 189 Kunz, above n. 41, at 487.

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nature of general principles (as opposed to their potential ‘natural law’ nature) in Factory at Chorzów, when noting that the general principle of reparation is “an element of positive international law”.190 Herczegh (by referring to Szabó) similarly writes that general principles “have nothing in common with the principles and concepts of natural law as professed by burgeois lawyers”191 and that “principles of law are in all cases the principles of positive law”.192 The Court’s interpretation of international law is not only limited to positive law (as opposed to including also natural law), but also applies ‘rules and principles’ that “may be relevant to the settlement of the dispute”,193 or, in other words, “relevant […] to the issues in the dispute between the Parties to [a particular] case”.194 The Court is an organ of international law and interprets State actions and instruments, applies and decides only in accordance with international law.195 The Court resorts to law that is not in force or not part of international law at the time of the decisions only when that is justified by the positive norms of international law. For example, in Western Sahara, the Court relied on historical decolonisation laws to assess the dispute at hand, but only because it was

190 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.). The general principle of (the right to) reparation and/or compensation is classified under ­Digest number 41. 191 Herczegh, above n. 8, at 35. Cf. ibid., at 89 (noting that “certain authors attribute functions and significance to them [general principles of international law] which would raise them above, and cut them free from, the positive rules of international law”). 192 Ibid., at 39 (emphasis added). 193 Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶49 (25 July) (emphasis added). 194 LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466, at ¶52 (27 June). See also Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶33 (20 Dec.) (noting that “in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable [i.e., relevant] with respect to the matter under debate”; emphasis added). 195 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 24 (4 Feb.); Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶¶49, 54 (25 July) (noting that “any national delimitation of sea areas, to be opposable to other States, requires evaluation in terms of the existing rules of international law”); Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶69 (4 Dec.) (interpreting “Canadian reservation […] in the light of international law”); Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶42 (20 Dec.). See also Pellet, above n. 116, at 716; Thirlway, The International Court of Justice (Oxford: Oxford University Press, 2016), at 27.

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required to do so by the general principle of uti possidetis juris, which forms part of the “existing rules of international law”.196 Along the same lines, the Court decides on the basis of international law, and not domestic (sometimes referred to also as ‘municipal’) law. As noted in the Mavrommatis Palestine Concessions case, “[t]he Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law”.197 In the Court’s jurisprudence, domestic law is considered a fact or evidence,198 “valuable indication” at most,199 but in no case is domestic law part of positive international law, i.e., the applicable law before the Court. As the Court said in Certain German Interests in Polish Upper Silesia case, [f]rom the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.200 For example, the Chamber in the 2005 Frontier Dispute considered the French colonial law not as applicable law ‘in itself’, but “as evidence indicative of […] the ‘colonial heritage’”.201 The Court further clarified its position on its reliance on domestic law in the Barcelona Traction case, by noting that [although it is sometimes] called upon to recognize institutions of municipal law that have an important and extensive role in the international field […] [t]his does not necessarily imply drawing any analogy between 196 Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶52 (16 Oct.). 197 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 34 (30 Aug.). See also Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240, at ¶65 (26 June). 198 Pellet, above n. 116, at 716. 199 Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15, at ¶124 (20 July). See also Thirlway, above n. 34, at 99 (noting that domestic law is “a guide to the nature of the principles to be looked for”). 200 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 19 (25 May). See, also Pellet, above n. 116, at 717 (writing that “municipal law does not operate as a ‘formal source’ of the law, even though it can have a ‘decisive’ influence on the Court’s decisions”). 201 Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90, at ¶28 (12 July), citing Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶30 (22 Dec.). See also ibid., at ¶46; Pellet, above n. 116, at 719.

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its own institutions and those of municipal law, nor does it amount to making rules of international law dependent upon categories of municipal law.202 Domestic law and (positive) international law exist on two different planes. For example, the Court in the 2006 Armed Activities on the Territory of the Congo case noted that the same act – in this case the withdrawal from a treaty reservation – was valid (and effective) on the domestic level, but the Court concluded that Rwandan withdrawal of a treaty reservation did not have an effect in international law.203 As domestic courts apply domestic law, so does the Court interpret and apply international law. The Court said in elsi that “the municipal court was applying Italian law, whereas this Chamber applies international law; and, of course, the parties were different”.204 The Court continued by stating that [c]ompliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision. […] [I]t must be borne in mind that the fact that an act of a public authority may have been ­unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise.205 If an act of a State does not violate international law or affect international relations, it does not belong to international law. The Court confirmed this in Military and Paramilitary Activities by noting that “[a] State’s domestic policy falls within its [State’s] exclusive jurisdiction, provided of course that it does not violate any obligation of international law”.206 The Court determines what ­(according to international law) falls within the competence of domestic courts and what is a matter of international law. For example, in The Peter 202 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶38 (5 Feb.). 203 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6, at ¶¶41–42 (3 Feb.) (noting that “the question of the validity and effect of the décret-loi within the domestic legal order of Rwanda is different from that of its effect within the international legal order”). 204 Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15, at ¶58 (20 July). 205 Ibid., at ¶¶73, 124. 206 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶258 (27 June).

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Pázmány University, the Court determined that considerations of the rights of ownership and administration of property “fall[] within the jurisdiction of the municipal courts”.207 The Court cannot directly rely on domestic law.208 The exception to this ­approach, i.e., when “international law looks to the rules of the relevant domestic law”,209 exists when the Court considers cases of diplomatic protection. For example, the Court in Ahmadou Sadio Diallo did consider the relevant ­domestic legislation in determining the nationality of a company because “only the State of nationality may exercise diplomatic protection on behalf of the company”.210 Generally, the Court does not refer to domestic laws in its decisions. Gaja compares the Court’s jurisprudence with that of arbitral tribunals and notes that, unlike the Court, “arbitral tribunals have shown little hesitation in referring to municipal systems”.211 However, the Court might have exceptionally considered the domestic law of a particular State in the twin Serbian and Brazilian Loans cases. Pellet argues that the Court in these decisions “was not requested to apply municipal law, but to settle an international dispute which had arisen in the domestic sphere”.212 Either way, the Court interprets domestic law “from the standpoint of international law”.213 Because the Court is not a domestic court and does not substitute itself for one,214 its interpretation of domestic law becomes part of international law. When the Court potentially identifies a general principle in the domestic laws of one or more States, those domestic notions by virtue of the Court’s consideration become norms of international law. The Court elevates the ‘rules’ and ‘principles’ of domestic law into the realm of international law. The 207 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 248 (15 Dec.). 208 “In neither case [as analogy or a material source of general principles] are domestic rules as such applied (or applicable) by the Court”. Pellet, above n. 116, at 722. 209 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶61 (24 May). 210 Ibid., at ¶61. 211 Gaja, above n. 27, at ¶32. 212 Pellet, above n. 116, at 720 (emphasis in original). See also Thirlway, above n. 195, at 27 (noting that “[t]he Court may […] find itself obliged to resolve a point of municipal law […] but this will normally be because the point is one on which international law refers to national law”, referring to the example of matters decided in accordance with uti possidetis juris). 213 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶265 (27 June). 214 Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90, at ¶140 (12 July).

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­ reviously-domestic norm becomes dissociated from the ‘domestic’ drafting p history and the ‘domestic’ authorities’ interpretation. If that were not the case, the Court’s interpretation of that particular domestic norm would hinge on the domestic authorities’ interpretation215 and any subsequent changes in the domestic law of that norm would be made contingent on its application in the Court’s jurisprudence. Vice versa, the domestic court’s consideration of international law belongs to domestic law, not to international law, and does not change the international law as applied to the international community. As Greenwood notes, “‘national courts consider international law differently from international courts’”.216 As far as the Court’s jurisprudence is concerned, domestic law did not have an effect on international law,217 unless the Court so decided. For example, the Court in Certain German Interest in Polish Upper Silesia “meant to recognize […] the right of ownership of the Oberschlesische Stickstoffwerke A.-G. in the Chorzów factory under municipal law”.218 The Court’s determination had a binding effect on the Parties before it. Similarly, in LaGrand, the Court observed that “it can determine the existence of a violation of an international obligation. If necessary, it can also hold that a domestic law has been the cause of this violation”.219 States also cannot obstruct the application of international law with their national laws. For example, the Court in Free Zones of Upper Savoy and the District of Gex said that “France cannot rely on her own legislation to limit the scope of her international obligations”.220 Also in the Request for Interpretation of Avena, the Court said that “considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation”.221 Domestic laws cannot exempt

215 Cf. Pellet, above n. 116, at 721 (quoting the Brazilian Loans case). 216 Andenæs and Leiss, above n. 71, at 966, footnote 288 (quoting Greenwood). 217 See, e.g., “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 24 (7 Sept.) (noting that “municipal law […] can only affect international law in so far as a treaty provision enters into account, or the possibility of a denial of justice arises”). 218 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] p.c.i.j. (ser.A) No. 13, at 22 (16 Dec.) (referring to its decision no. 7). 219 LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466, at ¶125 (27 June). 220 Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 167 (7 June). 221 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), Judgment [2009] i.c.j. 3, at ¶47 (19 Jan.).

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States from their international obligations even if they are in a state of emergency.222 Article 27 of the vclt similarly limits the ability of States to invalidate a treaty obligation by invoking their domestic laws. However, Article 27 of the vclt is limited only to the influence of domestic law on treaties, and not also to custom or general principles. Domestic law cannot form part of the positive (and applicable) law before the Court. Therefore, general principles that the Court may identify in domestic laws lose their domestic substratum and join the ‘rules’ and ‘principles’ of international law. Scholars generally disagree with this proposition. For example, Elias and Lim note that “[g]eneral principles of municipal law […] are sources of international law”.223 Similarly, Mendelson suggests that “decisions of national courts on questions of municipal law may […] even form part of the corpus of ‘general principles of law recognized by civilized nations’”.224 Kozłowski also claims that general principles “are principles of law derived from municipal legal orders recognized as appropriate grounds for ruling in proceedings before an international court”.225 However, whether or not the Court identified a general principle in domestic (municipal) law, the Court “decide[s] in accordance with international law”.226 Scholars generally assume that there are two types of general principles, namely, general principles of domestic law and general principles of international law.227 If it is acknowledged that Article 38(1)(c) of the Court’s Statute encompasses general principles ascertained in both domestic and internatio­ nal law, this distinction between general principles of domestic and international law is not relevant because, ultimately, all general principles ascertained by the Court are – or become – part of international law. Not all notions the Court identifies in domestic law are also general principles. In other words, there is no automatic identification of a general principle 222 For example, the Court in Construction of a Road in Costa Rica observed that the “emergency exemption under Costa Rican law does not affect Costa Rica’s obligation under international law to carry out an environmental impact assessment”. Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665, at ¶157 (16 Dec.). 223 Elias and Lim, above n. 28, at 23. 224 Mendelson, above n. 129, at 82. 225 Kozłowski, ‘Systematicity of General Principles of (International) Law – An Outline’, Polish Y. Int’l L. (2017), at 232. 226 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1), chapeau. 227 Herczegh, above n. 8, at 42 (distinguishing between principles on the domestic and international level); Kozłowski, above n. 225, at 233.

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just because the Court ascertained a norm “in the domestic sphere”.228 Scholars generally assume that general principles and domestic law are inextricably linked, meaning that each time the Court reaches towards domestic law, it identifies a general principle and vice versa, that all general principles are based on domestic laws. This is not the case, however. Such scholarly view may be a result of equating the expression ‘recognized by civilized nations’ in Article 38(1)(c) as a reference to domestic laws.229 Buza argues that it is not relevant whether the general principle is recognised by ‘civilized nations’ but rather whether it “‘is known in the legal systems of the states directly concerned’”.230 However, also if the term ‘civilised nations’ stood for the ‘domestic law’ of States, there is no guarantee that the Court’s reliance on domestic law would allow it to consider the domestic laws of the disputing States. Pellet rightly points out that recognising a general principle in the domestic sphere would “reinforce[] the ‘feeling’ that such principles are inherently binding”.231 The idea that the Court ascertains general principles only by relying on domestic laws, also if not necessarily the domestic laws of the disputing States, assures that the Court considers States’ opinion and practice in ascertaining general principles. In other words, the Court’s ascertainment of general principles is, according to this assumption, not entirely discretionary. Or, as Herczegh puts it, States impliedly consent to the binding effect of general principles “[i]f the municipal law of a state has adopted the legal principle in question”.232 However, the Court rarely relied on domestic laws, and on even fewer occasions ascertained a general principle by expressly referring to domestic legislation. The scholarly view of automatically correlating general principles with domestic law would come to mean that the Court rarely relied on general principles in its jurisprudence. An alternative – and the view taken here – is that the Court may find general principles in bases other than domestic law. Gaja confirms that the latter view is feasible by observing that in practice the Court “generally asserted the existence of principles in international law irrespective of their correspondence to principles pertaining to municipal laws”.233

228 Pellet, above n. 116, at 768. 229 Herczegh, above n. 8, at 97 (relating the expression “recognized” to “uniformity, or at least similarity, of the social-economic conditions of these states”). 230 Ibid., at 42 (quoting Buza). 231 Pellet, above n. 116, at 768. 232 Herczegh, above n. 8, at 42 (referring to States’ presumptive will’). 233 Gaja, above n. 27, at ¶32.

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Domestic principles– that is, norms in the modality of ‘principles’ that exist in domestic legislation – although ‘principles’ in name, do not automatically constitute general principles within the meaning of Article 38(1)(c).234 In this respect, Root – a member of the 1920 acj and one of the proponents of the formulation of ‘general principles of law’ – “expressly rejected the possibility of deriving general principles from domestic ones as they were applied differently in different states”.235 Domestic principles belong to the same category as domestic law. The Court may resort to domestic principles in ascertaining general principles by elevating them to the international sphere, but it is not required to do so. However, in Ahmadou Sadio Diallo the Court exceptionally referred to a “principle of domestic law that a company has a legal personality distinct from that of its shareholders”236 and applied it to the case at hand. Domestic principles, Roman maxims and doctrines do not form part of the positive international law237 unless declared to be part of international law by the Court.238 Until the Court recognises them in its jurisprudence, domestic principles apply only on the domestic level, while maxims and doctrines are not binding in international or domestic law. The Court did not discuss political principles, doctrines or social theories in its jurisprudence, mainly because they are not ‘law’.239 For example, in the

234 “[Tunkin] however stops short of saying that common domestic principles can be formal sources of international law […] but cannot be principles of international law”. Elias and Lim, above n. 28, at 22. 235 Yotova, above n. 36, at 290–291. 236 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶155 (30 Nov.) (emphasis added). 237 Oppenheim considered that Roman maxims of interpretation “despite their aptness, are not recognized as international rules of construction”. Oppenheim, The Future of International Law (New York: Humphrey Milford, 1921), at 35. See also Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co., 1927), at 170 (noting that “international publicists have rendered a bad service to the cause of international law in attempting to show that the doctrine has become a rule of positive ­international law”). 238 Cf. Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice: Volume 2 (Cambridge: Cambridge University Press, 1986), at 618–620. 239 Competence of the ilo to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] p.c.i.j. (ser.B) No. 13, at 23 (23 July) (noting that “there appears to be no room for the discussion and application of political principles or social theories, of which […] no mention is made in the Treaty”). Herczegh agrees that “political programmes and the various scientific theories must be excluded from the scope of investigations [of principles of international law]”. Herczegh, above n. 8, at 43.

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North Sea Continental Shelf, the Court did not consider that the doctrine advanced by the two Parties to the dispute belonged to international law.240 Similarly, the Court in Serbian Loans and in German Interest in Upper Silesia mentioned “the doctrine of French courts”,241 the “doctrine of the conflicts of laws”242 and “the doctrine of litispendance”,243 but did not apply them to the case at hand. The Court considered them as “rules [that] form part of municipal law”.244 However, doctrines and theories have exceptionally encouraged the emergence of certain general principles. For example, the Court in Polish Postal Service in Danzig considered the doctrine of res judicata (referring to it later in the same decision also as a set of ‘principles’245) – a well-recognised general principle in international law. Similarly, the Court in Free Zones of Upper Savoy and the District of Gex considered a theory of rebus sic stantibus,246 which it later ascertained as a general principle.247 Scholars tend to equate Roman maxims (or, more generally, Latin expressions) as general principles. For example, Hersch Lauterpacht noted that the Anglo-American jurisprudence tends “to attribute to Roman law the quality of general principles of law”.248 However, not all Latin expressions used in the Court’s jurisprudence qualify as general principles. In his work, Gerald Fitzmaurice identified several Latin maxims which he considered to be 240 “The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing”. North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶33 (20 Feb.) (­emphasis added). 241 Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 47 (12 July). 242 Ibid., at 41. 243 German Interest in Upper Silesia, Judgment [1925] p.c.i.j. (ser.A) No. 6, at 20 (25 Aug.) (­emphasis in original). 244 See Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 41 (12 July). 245 “The Court has no doubt that the principles laid down in its Opinions Nos. 8 and 9 as to the final character of decisions under international law, apply to any final decision under the aforesaid provisions”. Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 24 (16 May). See also ibid., at 21 (referring to the “doctrine of res judicata”). 246 “[I]t becomes unnecessary for the Court to consider any of the questions of principle which arise in connection with the theory of the lapse of treaties by reason of change of circumstances [rebus sic stantibus], such as the extent to which the theory can be regarded as constituting a rule of international law, the occasions on which and the method by which effect can be given to the theory if recognized, and the question whether it would apply to treaties”. Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 158 (7 June) (emphasis added). 247 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶36 (2 Feb.). 248 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longman, Green and Co., 1927), at 178.

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r­ epresentative of general principles, namely, the principle of cessante ratione, cessar ipsa lex, the principle of rebus sic stantibus, the principle jus posteriori jus priori derogat.249 However, apart from rebus sic stantibus, the Court did not consider these ‘principles’ in its jurisprudence as belonging to Article 38(1)(c). Latin maxims resemble general principles because they perform a gap-­ filling function. Hersch Lauterpacht, for example, considered Roman maxims as gap-fillers “in the absence of international legal language”,250 which according to scholarly opinion is one of the main functions of general principles. Conclusion 3: General Principles Apply to the Entire International Community Sub-conclusions – General principles are binding and form part of the general international law − General principles create rights and obligations − The Court’s interpretation of international law is valid for the entire international community − General principles apply equally and universally to all States and other international actors. 3.2.3

Scholarly opinion on the ability of general principles to bind the international community is divided. On the one side of the spectrum are those who argue that general principles are “too general in character to impose specific normative requirements on States”251 and are consequently not even binding;252 on the other side are scholars who argue that general principles “bind States beyond that to which they have agreed to be bound”.253 The author adopts the latter view. Scholars in the middle consider that certain (potentially only the fundamental) general principles are binding, while the rest are only persuasive.254 Indeed, the Court confirmed that some general principles are so fundamental that they “are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible

249 Gerald Fitzmaurice, above n. 238, at 618–620, 623–624. 250 Hersch Lauterpacht, above n. 248, at 178 (noting that Roman law may give “a convenient expression to general principles of law proper”). 251 Lepard, above n. 92, at 167 (original text is italicised). 252 Schwarzenberger, above n. 26, at 204; Berry, above n. 30, at 175. 253 Bassiouni, above n. 40, at 785–786, referring to Hudson, above n. 44, at 610–612. 254 “[N]ot all general principles of law will have only persuasive authority. Some will have binding authority”. Lepard, above n. 92, at 168.

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­ rinciples of international customary law”.255 Are only ‘fundamental’ general p principles binding? The view proposed here is that all general principles are binding on the members of the international community, regardless of whether or not they are embodied in a treaty or norms of customary international law. As the Court observed in the Reservations to the Genocide Convention advisory opinion, “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”.256 Similarly, the Court in Corfu Channel said that Albania’s obligations do not derive from a treaty, but are based on certain general and well-recognized principles, namely: elementary considerations of humanity […] the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.257 General principles are binding also independently of customary international law. Like customary norms, general principles are “‘in force between all independent nations’”.258 General principles are as authoritative as customary international law because they form part of the international law applicable before the Court.259 Bassiouni argues that general principles create self-evident (and potentially erga omnes) obligations “‘flowing to all’ [and …] binding on all States”.260 As the Court declared in the Wall advisory opinion in applying the general principle of the right of peoples to self-determination, “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory”.261 The effect of the Court’s finding of a general principle may be compared to the Court’s recognition of a norm of customary international law. 255 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶79 (8 July). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶157 (9 July). 256 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May). 257 Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4, at 22 (9 Apr.). 258 Schwarzenberger, above n. 26, at 195 (citing the “Lotus” decision). 259 Statute of the International Court of Justice, 24 Oct., 1945, 1491 u.n.t.s. 199, art. 38(1), chapeau. 260 Bassiouni, above n. 40, at 806–807. 261 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶159 (9 July) (emphasis added).

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General principles create rights and obligations that regulate the conduct of States, the Court and other actors in the international community. The Court on several occasions referred to a general principle as to a ‘right’ or an ‘obligation’. For example, in Western Sahara and the Wall advisory opinions the Court referred to the general principle of self-determination as a ‘right’.262 Similarly, in Right of Passage the Court described the general principle of reciprocity as a ‘right’,263 while in the Phosphates in Morocco decision, the Court referred to the general principle of respect for vested rights as an ‘international obligation’.264 Among the scholars, Kaufman Hevener and Mosher, Yotova and Kleinlein, for example, agree that general principles create (either new or modified) international obligations for States.265 States do not always act in conformity with the general principles ascertained by the Court.266 For example, the Court in Military and Paramilitary Activities observed that “the United States has violated the principle prohibiting recourse to the threat or use of force by the acts listed in paragraph 227 above, and by its assistance to the contras”.267 However, regardless of whether or not States adhere to the general principles identified in the judgment’s reasoning, general principles form part of international law that applies to the entire international community. States are required to act in conformity with international law whether or not the Court issues a judgment on the matter.268 By forming part of 262 Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶55 (16 Oct.) (“[t]he principle of selfdetermination as a right of peoples”; emphasis added); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶159 (9 July). 263 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 147–148 (26 Nov.). 264 Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74, at 27 (14 June) (referring to the “international obligation incumbent on Morocco and on France to respect vested rights”). 265 Kaufman Hevener and Mosher, above n. 20, at 612; Yotova, above n. 36, at 309 (noting that in “Corfu Channel, Nicaragua and Timor-Leste v. Australia, general principles of international law served as a direct source of international obligations”). 266 Cf. Cheng, above n. 62, at 261 (“[v]iolation of the principle may consist not only in positive acts, but also failure either to apply the prescribed principles of law or to decide a case that falls within the Tribunal’s jurisdiction”). 267 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶238 (27 June). 268 For example, the Court in the 2015 Application of the Genocide Convention stated that “States are required to fulfil their obligations under international law […] and they remain responsible for acts contrary to international law which are attributable to them”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶86 (3 Feb.).

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i­ nternational law, general principles guide States’ conduct also in the absence of the Court’s decision on a particular matter. General principles are applicable equally (and universally) to all States and other international actors.269 For example, the Court in the North Sea Continental Shelf case acknowledged that equitable general principles “which govern the delimitation of adjacent continental shelfs [… are] rules binding upon States for all delimitations”.270 The Court did not limit the applicability of the equitable general principles to the disputing States. Similarly, the preamble to the vclt states that recognition of the general principles of good faith and pacta sunt servanda is universal and not limited to the Contracting Parties.271 In confirming the universal validity of a particular general principle, the Court relies on international jurisprudence rather on the general principle’s universal acceptance in States’ domestic laws. For example, in referring to the general principle of provisional measures in Electricity Company of Sofia and Bulgaria, the Court noted that it has been “universally accepted by international tribunals”.272 Lloyd-Jones rightly points out that “[it is] rarely […] possible to demonstrate that [general principles] form part of every developed legal system”.273 According to Schlesinger, at least the fundamental general principles are so generally recognised that their universal acceptance is presumed.274 Bassiouni – although interpreting the Court’s “Lotus” decision as not intending to hinge the recognition of general principles on universality275 – notes, however, that “‘when a solution is approved by universal public opinion, the judge is justified in applying it’”.276

269 See Herczegh, above n. 8, at 42 (noting that “[t]he term ‘general principles of international law’ […] is frequently used to denote the rules of international law of universal validity”; emphasis added); Jennings and Watts, Oppenheim’s International Law: Volume 1 Peace (9th ed., Oxford: Oxford University Press, 2008), at 4 (“[i]nternational organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law”). 270 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶85 (20 Feb.) (emphasis added). 271 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, preamble. 272 Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.) (the general principle of provisional measures was also embodied in Article 41(1) of the pcij Statute). See also Bassiouni, above n. 40, at 796. 273 Lloyd-Jones, above n. 107, at 3. 274 Schlesinger, above n. 2, at 749. 275 Bassiouni, above n. 40, at 788 (also noting that “no quantitative or numerical test for States having such a ‘principle’ has ever been established”). 276 Ibid., at 769 (quoting Bos and the Procès-Verbaux of the Proceedings of the Committee, above n. 79).

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Conclusion 4: General Principles Are Ascertained with the Court’s Opinio Juris Sub-conclusions – General principles are ascertained with the Court’s opinio juris − States do not actively participate in the Court’s ascertainment of general principles −Individual judges cannot find general principles for the entire international community. 3.2.4

General principles are part of international law and the Court considers them proprio motu, i.e., whether or not the disputing Parties invoke them in their pleadings. This approach is in line with the general principle of jura novit curia, which provides that the Court – and not the States – knows international law. It follows that general principles are ascertained with the Court’s opinio juris. States’ opinio juris on the existence or legally binding nature of general principles does not affect the Court’s finding of general principles. As the Court additionally noted, “the decision merely to allow the general principle to apply does not necessarily require detailed reasoning, and may even be adopted by implication”.277 It is for the Court to decide when and how to resort to and ascertain general principles. For example, in “Lotus” the Court found that there was no general principle that would preclude Turkey from instituting criminal proceedings against the French lieutenant.278 The Court does on occasion consider ‘principles’ put forward by the disputing States. However, in most cases the Court declares that such ‘principles’ do not exist as part of international law or modifies them. For example, the Court in Monastery of Saint-Naoum stated that the ‘principle’ put forward by the Serbo-Croat-Slovene State did not exist.279 Similarly, in Access to the Port of Danzig, the Court said that it “[wa]s not prepared to accept the view that these principles, relied upon on the part of Poland, are sufficient to support the claim which she is now advancing”.280 In Rights of Minorities in Upper Silesia, the Court did not consider Germany’s ‘principle governing the admission of children to German minority schools’. Instead, it

277 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶98 (12 July). 278 “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 31 (7 Sept.). 279 The Serbo-Croat-Slovene State invoked a “principle […] that all disputed areas on the borders of Albania and Serbia containing Christian orthodox sanctuaries of national or historical importance […] should be allocated to Serbia”. Monastery of Saint-Naoum, ­Advisory Opinion [1924] p.c.i.j. (ser.B) No. 9, at 21 (4 Sept.). 280 Access to, or Anchorage in, the port of Danzig, of Polish War Vessels, Advisory Opinion [1931] p.c.i.j. (ser.A/B) No. 43, at 145 (11 Dec.).

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relied on the “[general] principle of the ‘same treatment’”.281 As the Court observed in the 1974 Fisheries Jurisdiction case, “the views and opinions of individual States [… are] vehicles of their aspirations, rather than […] expressing principles of existing law”.282 When considering general principles proprio motu, the Court may declare that a general principle exists and forms part of international law, but that it does not apply to the case at hand. For example, the Court in Anglo-Iranian Oil Co. case acknowledged that the general principle of forum prorogatum exists, but it could not apply it to the case at hand because the opposing State did not show any indication of its consent to the Court’s jurisdiction.283 The Court also did not apply the general principle of the exhaustion of domestic remedies in Prince von Pless Administration, although it had been applied in its previous cases, because the Court wanted “to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal upon the appeals brought by the Prince von Pless”.284 The Court determines the scope of the general principles that it ascertains. For example, in Interhandel the Court clarified where “the effect of reciprocity ends”,285 meaning that the Court determined that the general principle of reciprocity did not justify the United States in relying on a restriction that Switzerland did not include in its declaration.286 Similarly, in the 1950 Interpretation of Peace Treaties the Court clarified that the general principle that the jurisdiction of the Court depends on the consent of the Parties does not apply to advisory proceedings.287 The Court in the Jurisdiction of the European Commission of the Danube also rejected the possibility of conditions and ‘situations of fact’ that would be “at variance with the principles laid down by the international instruments”.288 Similarly, in the Interpretation of the Greco-Turkish Agreement the Court said that it would be contrary to the general principle of

281 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 43 (26 Apr.). 282 Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶53 (25 July). 283 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 114 (22 July). 284 Prince von Pless Administration, Order [1933] p.c.i.j. (ser.A/B) No. 52, at 16 (4 Feb.). 285 Interhandel (Switz. v. U.S.), Preliminary Objections [1959] i.c.j. 6, at 23 (21 Mar.). 286 The general principle of reciprocity is classified under Digest number 111. 287 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 65, at 71 (30 Mar.). 288 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 67 (8 Dec.).

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­kompetenz-kompetenz to allow members of a corporation “to take action of any kind outside the sphere of proceedings within that organization”.289 The Court may also modify the general principles. For example, in the Reparation for Injuries advisory opinion, the Court moulded the general principle of diplomatic protection to the context of international organisations and their representation of injuries of the civil servants. As the Court recognised, “[t]he traditional rule [is] that diplomatic protection is exercised by the national State”.290 The Court modified the diplomatic protection that could be exercised by an international organisation and called it ‘functional protection’. The modified version of the general principle of diplomatic protection enabled (and still does) the United Nations to “bring an international claim […] in respect of the damage caused” to its agents.291 The Court reasoned that international organisations and their civil servants should not compromise their independence by limiting the protection of international civil servants to the protection of their States of nationality in seeking reparation for an injury suffered as an agent of the United Nations.292 Scholars are divided on the level of State participation in the Court’s ascertainment of general principles. Sykes argues that general principles are the source of international law that is “least dependent on state practice”.293 Similarly, Kwiecień notes that “the validity and legitimacy of [general principles] are not grounded in State consent”.294 Wouters, Coppens and Geraets also note the “judge-made nature” of general principles.295 Gaja, however, suggests that “for a principle to exist it would be necessary that States acknowledge, albeit implicitly, that this principle applies to their international relations”.296 Bassiouni, whose opinion is most likely limited to those general principles that are derived from domestic law, similarly argues that general principles “are derived from the States’ own principles, as ascertained through the inductive approach”.297 On very few occasions, when the Court relied on domestic law in ascertaining a general principle, the general principle did carry an implicit State approval. However, Bassiouni warns that a 289 Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article iv), Advisory Opinion [1928] p.c.i.j. (ser.B) No. 16, at 25 (28 Aug.). 290 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 181 (11 Apr.). 291 Ibid., at 181, 185. 292 Ibid., at 183. See also Chapter 9, at 337. 293 Sykes, above n. 65, at 19. 294 Kwiecień, above n. 83, at 240. See also Kozłowski, above n. 225, at 232 (noting that general principles are “effective irrespective of [State] practice”). 295 Wouters, Coppens and Geraets, above n. 32, at 44. 296 Gaja, above n. 27, at ¶19. 297 Bassiouni, above n. 40, at 786.

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situation where the Court would be able to rely only on ‘rules and principles’ to which States explicitly consented would lead to denial of justice; static body of international law; and judicial system unable to resolve continuous issues of which there is no positive law, or about which the positive law is insufficient, unclear, or ambiguous.298 Elias and Lim argue that the underlying reason for the inclusion of general principles among the sources of international law was to enable the Court to overcome “the perceived limitations of the consensual nature of [custom and treaties]”.299 Yotova similarly observes that “the available state practice does not seem to offer any conclusive evidence of a dominant approach towards the definition or the identification of the general principles of law”.300 Her observation, considered in tandem with the general principle of jura novit curia (the Court knows the law),301 suggests that States – at least as far as the Court’s jurisprudence is concerned – play a minimal or no role in the Court’s ascertainment of general principles. States implicitly consented to the Court’s ascertainment of the general principles by signing the United Nations Charter and its Annex – the Court’s Statute. By signing up to the Statute, States confirm that the Court is the United Nations’ primary judicial organ and that it resolves international disputes in accordance with international law, including by way of ascertaining general principles. Although States do not immediately submit to the Court’s jurisdiction, their membership in the United Nations requires them to submit to the Court’s jurisprudence and its interpretation of international law. The Court does not derive the binding force from the consent of the Parties to its jurisdiction. Instead, “[a] judgment of the Court derives its binding force from the Statute of the Court”.302 As it is a judicial body that represents ‘all forms of civilised nations’, the Court in its reasoning elaborates on norms of international law that may also govern relations among the non-disputing States.303

298 Ibid. 299 Elias and Lim, above n. 28, at 4. 300 Yotova, above n. 36, at 285. 301 The general principle of jura novit curia is classified under Digest number 120. 302 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281, at ¶75 (11 Nov.). 303 Cf. Andenæs and Leiss, above n. 71, at 932 (noting that “the consensual nature of international law precludes states that were not parties to a case and did not explicitly agree to be bound by the outcome from being bound by the [Court’s] judgment”).

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Individual (or a group of) judges are not in the same position as the Court when it comes to ascertaining general principles (or interpreting international law, for that matter). Their individual opinions do not carry the same weight as the decisions of the entire Court do, also when interpreting general principles which have already been ascertained by the Court. Judges’ opinions also do not represent the Court’s opinio juris. (It is also questionable to what extent the decisions delivered by a Court’s Chamber represent the Court’s opinio juris.) Judges’ opinions – whether separate or dissenting – and their declarations seem to be more informative and richer in elaborating upon certain ‘principles’.304 They cite a larger volume of general principles as compared to the Court’s decisions. However, judges’ ‘principles’ are generally not confirmed as general principles within the Court’s jurisprudence. For example, Judge ­Negulesco in his dissent to Jurisdiction of the European Commission of the Danube cited “the private law principle that [certain] activities cannot be the basis of either possessive or prescriptive rights [which] must be applied to the present case”.305 This ‘principle’ was never invoked in the Court’s jurisprudence. 3.3 What Are General Principles Not? What are general principles not? General principles are not solely identified (if at all) in domestic law. A long-held scholarly view is that domestic law provides the only basis for the emergence of the ‘general principles of law recognized by civilized nations’, predominately due to the reference to ‘civilized nations’. However, in practice, the Court rarely resorts to domestic law, and even more uncommonly ascertains general principles based on domestic law. The conviction that general principles be based solely on States’ domestic law is most likely the cause of the doctrinal belief that the Court does not often invoke general principles in its jurisprudence. However, general principles have not not been used by the Court in its jurisprudence. Quite to the contrary, general principles are the Court’s popular tool. The Court’s jurisprudence indicates that general principles are judicially ascertained binding ‘rules’ and ‘principles’ of international law. General principles form part of positive international law and apply not only to the disputing

304 See, particularly on the topic of general principles, Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) (Cançado Trinidade separate opinion). 305 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 123 (8 Dec.) (Negulesco dissenting opinion).

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Parties but to the entire international community, as customary international law does. Compared to the doctrinal compilation on the ‘definition’ of general principles (see above at 58–59), the Court did not distinguish between fundamental and non-fundamental general principles nor did it consider general principles to be only a basis for rules of conduct. The Court’s jurisprudence indicates that general principles are the rules of conduct themselves. Accordingly, the Court’s practice demonstrates that general principles are not solely ‘principles’, as they also represent the modality of ‘rules’. General principles are also not methods, although they could be applied through various (and varying) methods. Both scholarship and the Court’s jurisprudence are in agreement, however, that when it comes to ascertaining general principles, States’ opinions and actions do not play a major – if any – part. General principles, at least those on which the court relies upon, are idenified by the Court.

Chapter 4

Introducing the ‘Cube’ The provisional definition of general principles presented across four Conclusions in Chapter 3 allows for the possibility that there may be some inherent differences among the general principles. Not all general principles regulate the same conduct nor are they all to be found in domestic laws. The ‘Cube’ – a visual representation of all characteristics ascertained within the Court’s jurisprudence – proves that despite their diversity all general principles occupy the same ‘space’ in Article 38(1)(c). This chapter discusses the three types of general principles (substantive, procedural and interpretative) and their three underpinnings (domestic law, international law and judicial discretion) – the six characteristics that correspond to the Cube’s six surfaces – and concludes by summarising other scholarly attempts to categorise the Article 38(1)(c) norms. Coming up with criteria – any criteria – is essential in collecting information and creating a dataset that can be objectively and comprehensively analysed in coming up with a theory on general principles and their interaction with the other (two) sources of international law. Or, as Schlesinger put it in 1957, “unless we have some idea of what we mean we cannot even begin to pick the participants in our seminars [on the topic of general principles]”.1 The ‘Cube’ is a new method of classifying general principles. Three characteristics classify general principles according to their type (or content) and three characteristics classify them according to their underpinning or the basis on which the Court identified them. General principles can be of a substantive, procedural or interpretative type,2 and may have a domestic, international and judicial underpinning. A general principle is usually of one type, but it can have more than one underpinning (see Figures 4.1–4.3 at 103 and 104). All general principles that the Court identified can be placed in the interior of the ‘Cube’. Their positioning depends on their unique two (or more) characteristics and the evolution of the norm through the Court’s jurisprudence.

1 Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’, 51 Am. J. Intl. L. 4, 734 (1957), at 752. 2 The ‘type’ is not solely related to general principles; treaty provisions and customary international law exhibit the same three characteristics.

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F A Substantive General Principles B Procedural General Principles C Judicial Underpinning D Interpretative General Principles E International Underpinning F Domestic Underpinning Figure 4.1 The ‘Cube’

For example, a procedural general principle with a domestic underpinning occupies the bottom right space within the ‘Cube’, as illustrated (by Figure 4.2 at 104). A general principle that exceptionally sits between two types, namely, one that exhibits the characteristics pertaining to both the substantive and interpretative general principles, and has one underpinning (international), takes the following position within the ‘Cube’. The ‘Cube’ is not a scientifically precise model of a three-dimensional space. Instead, it represents an approximation and a visualisation of the area that general principles with different characteristics inhabit. The ‘Cube’ also outlines the space that varied general principles share while retaining their status within Article 38(1)(c). The positioning of each general principle within the ‘Cube’ could change over the course of the Court’s jurisprudence. While the general principles’ type tends to remain the same, the underpinnings that the Court attaches particularly to recurring general principles may (and most often do) change. The ‘Cube’, if turned into a digital 3D model, could instantaneously compare every general principle ascertained by the Court, showcase what types

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Figure 4.3 Within the ‘Cube’: Substantive and interpretative general principle with an international underpinning

and underpinnings of general principles are most commonly ascertained by the Court, aid in developing new hypotheses about this source, and pinpoint e­ xceptions. The possible comparisons include analysing general principles within the same group (e.g., comparing all substantive general principles), comparing general principles with different characteristics (e.g., comparing substantive and procedural general principles, or comparing general

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principles with a domestic or an international underpinning) or assessing the relationship between the type and an underpinning (e.g., assessing the correlation between procedural general principles and the international underpinning). This model could also be of use in comparing the Court’s ‘Cube’ with the potential ‘Cubes’ of other international courts and tribunals, i.e., in comparing the Court’s reliance on general principles with reliance on the (same or different) general principles of other international courts and tribunals. Placing all general principles ascertained by the Court in the ‘Cube’ would also aid in determining the areas of international law where a functioning international parliament is most needed and that the Court – by relying on general principles – has been thus far replacing. 4.1

Types of General Principles

‘Type’ represents the characteristics of the general principles that relate to their content. General principles’ types are substantive, procedural and interpretative. Substantive general principles regulate State conduct, procedural general principles provide the rules of procedure before the Court, and interpretative general principles guide the Court’s interpretation of international law. While substantive general principles could be ascertained in the reasoning or the operative part of the Court’s decision, procedural and interpretative general principles are generally recognised only in the Court’s reasoning. 4.1.1 Substantive General Principles Substantive general principles regulate States’ conduct by providing for their rights and obligations. These rights and obligations are unrelated to the principles and rules governing the Court’s procedure. Those substantive general principles ascertained in the Court’s reasoning apply to the entire international community (as do norms of customary international law confirmed in the Court’s jurisprudence) and not solely to the disputing Parties. Scholars have referred to substantive general principles as well as to general principles with a ‘normative function’.3

3 Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 801 (noting that general principles “serve a ‘normative function’ in the regulation of State conduct”).

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An example of a substantive general principle is the general principle of freedom of navigation, which ensured the free movement of vessels on the river Danube and enabled the Court to extend the (former) European Commission’s authority to ports subject to the territorial jurisdiction of States.4 As a substantive general principle, freedom of navigation affected the rights and obligations of States, but did not have any effect on the procedure before the Court (as procedural general principles would) nor did it help with the Court’s finding of the applicable international law (and interpretative general principles would). Another example of a substantive general principle is that of equal treatment. For example, the Court in Rights of Nationals of the United States of America in Morocco found that it cannot recognise the tax immunity only of United States nationals because that would violate “the principle of equality of treatment in economic matters”.5 Although related to the rights of individuals, the general principle of equal treatment was meant to set specific requirements for States. A general principle most scholars place among procedural general principles, but which is in fact a substantive one, is the general principle of reparation. First ascertained in the Factory at Chorzów,6 this general principle confers on the breaching State the obligation to compensate the other for damage caused by an internationally wrongful act, whether or not the ‘victim’ State instituted international proceedings against the breaching State.7

4 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 56, 62 (8 Dec.). 5 Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176, at 207 (27 Aug.). 6 The Court determined that Poland owes Germany compensation for expropriating two of its factories in Poland. Ultimately, however, the Court in Factory at Chorzów could not apply this general principle because the Parties had settled before the committee of Court-appointed experts could determine the amount of compensation. Factory at Chorzów, Order [1929] p.c.i.j (ser.A) No. 19, at 13 (25 May) (the Court “terminated the expert enquiry”). The settlement was most likely influenced by Poland’s knowing that it would ultimately have to compensate Germany in accordance with the general principle of reparation. Ibid., at 12. The Court continued to rely on the general principle of reparation in its jurisprudence by omitting the term ‘principle’ in the process. See, e.g., Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 181 (11 Apr.). 7 See, e.g., Legality of Use of Force (Yu. v. U.S.), Order [1999] i.c.j. 916, at ¶¶30–31 (2 June) (not­ ing that “whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law”; emphasis added); Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.) (the Court stating that “reparation is the indispensable complement of a failure to apply a convention”; emphasis added).

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4.1.2 Procedural General Principles Procedural general principles represent rules or principles additional to those in the Court’s Statute and its Rules of Procedure that help to regulate the procedure before the Court. Although their scope is limited only to the proceedings before the Court, procedural general principles regulate both the Court and the conduct of its judges, and the States. Unlike the substantive ones, procedural general principles apply only to States in the dispute(s) before the Court and not the entire international community. An example of a procedural general principle is “that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions”.8 This general principle, in the ‘rule’ modality and limited only to the States’ conduct in the case and at the time of the proceedings before the Court, fills the gap in the Court’s Statute. Another example of a procedural general principle is that of diplomatic protection, relied upon by the Court since 19249 and now recognised also as a rule of customary international law.10 The primary purpose of diplomatic ­protection – at least when invoked by the Court – is to enable States to initiate or continue international proceedings before the Court. Indeed, in the Mavrommatis Palestine Concessions case, diplomatic protection enabled Greece to espouse Mr. Mavrommatis’ claim against the British government and continue its proceedings before the Court. Another procedural general principle is that of the bond of nationality between the State and the individual, which alone confers upon the State the right of diplomatic protection. Pursuant to this general principle the Court in Nottebohm prevented Liechtenstein from continuing its proceedings on account of lack of standing against Guatemala, because it decided that Mr. Nottebohm had a stronger bond of nationality with Guatemala than with Liechtenstein.11 A general principle that regulates the Court’s duties in considering the submissions of the Parties rather than the States’ conduct before the Court is, for example, the procedural general principle that it is the duty of an international tribunal to reply to the questions as stated in the final submissions of the 8

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.). 9 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 12 (30 Aug.). 10 The International Law Commission (ILC) is referring to Mavrommatis Palestine Concessions in its commentary to article 1 of its Draft articles on Diplomatic Protection. Int’l L. Comm’n, Draft articles on Diplomatic Protection with Commentaries, Rep. of the Int’l L. Comm’n (2006), U.N. Doc. A/61/10, at 27. 11 Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 16–17, 25–26 (6 Apr.).

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­arties and to abstain from deciding points not indicated in those p submissions.12 Procedural general principles also further supplement the Court’s Statute and its Rules. For example, the Court’s jurisprudence refers to the general principle of reciprocity – a general principle is crucial for determining whether the Court has jurisdiction and its scope – which is also codified in Article 36(3) of its Statute. In Right of Passage over Indian Territory, the Court acknowledged that the general principle of reciprocity has been “repeatedly affirmed and applied […] in relation to its own jurisdiction”.13 4.1.3 Interpretative General Principles Interpretative general principles represent the third (and new) type of general principles. Unlike the substantive and to some extent procedural general principles, interpretative general principles are applied only by the Court and do not directly regulate States’ rights and obligations. Interpretative general principles guide the Court’s identification of the applicable international law but are not themselves the applicable international law, i.e., the law on the basis of which the Court adjudicates the case. Instead, they are the norms that aid the Court in ascertaining the applicable law for the Parties in the dispute. Interpretation of international law is most commonly associated with the interpretation of treaties,14 although the Court resorts to general principles in interpreting treaty provisions (and customary international law) and for determining the relationship among more treaties.15 12

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The Court in its Review of Judgment No. 158 advisory opinion said that this general principle had been “previously recalled by the Court [in 1950]”. Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶87 (12 July). Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 145, 147 (26 Nov.) (also noting that in this case “the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute”). See Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 309. Cf. Skomerska-Muchowska, ‘Some Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law’, Polish Y. Int’l L. (2017), at 256 (noting that the Court invokes general principles “for the interpretation of treaty and customary law”; emphasis added). Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 11; Bassiouni, above n. 3, at 775, 800; Skomerska-Muchowska, above n. 14, at 270– 271; Schlesinger, above n. 1, at 735; Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 96; Kaufman Hevener and Mosher, ‘General Principles

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Some interpretative general principles correspond to the provisions of ­ rticle 31 or 32 of the Vienna Convention on the Law of Treaties (vclt). For A example, the Court ascertained in 1950 and reaffirmed in 1973 the general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself.16 However, unlike the vclt provisions, interpretative general principles that regulate treaty interpretation are not limited to the requirements of the vclt (e.g., to treaties concluded among the vclt contracting parties and to treaties concluded after the vclt’s entry into force).17 The Court also ascertained interpretative general principles related to treaty interpretation that are not part of the vclt. For example, in its 1952 AngloIranian Oil Co., the Court ascertained the general principle that a legal text should be interpreted in such a way that a reason and a meaning be attributed to every word in the text.18 This general principle, although applicable to treaty interpretation, does not form part of the vclt. Similarly, the Court in Jurisdiction of the Courts of Danzig identified the general principle that the intention of the Parties in concluding an agreement is decisive,19 which – despite regulating treaty interpretation – is not expressly included in the vclt. Interpretative general principles also aid the Court in interpreting customary international law, other international instruments (such as unilateral declarations), its judicial decisions and even the relationship between domestic and international law. An example of an interpretative general principle that extends beyond treaty interpretation is ut res magis valeat quam pereat.20 This general principle applies to the interpretation of international instruments in general and is not limited to treaty interpretation. Another similar general principle is that “‘only if [State …] abstentions [are] based on their being conscious of having a duty to abstain it is possible to speak of international

16 17 18 19 20

of Law and the UN Covenant on Civil and Political Rights’, 27 Int’l & Comp. L. Q. 3, 596 (1978), at 599 (noting that the Court refers to general principles “usually […] in combination with other sources, or as an aid in interpreting a treaty provision”). Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.); Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶17 (2 Feb.). See, e.g., Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, arts 1 and 4. Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 105 (22 July). Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 18 (3 Mar.). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 221, at 229 (18 July).

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custom’”,21 which aids the Court in interpreting customary international law. Other examples of interpretative general principles not specific to treaty interpretation are the general principle of res judicata22 (specific to interpreting international judicial decisions) and the general principle that international law prevails over national law23 (specific to the interpretation of the divide between domestic and international law). Wouters, Coppens and Geraets agree that interpretative general principles “guide the interpretive process in itself”.24 However, instead of considering them as a type (alongside substantive and procedural general principles), they consider interpretative general principles as a subcategory of procedural general principles.25 Bassiouni also acknowledges the existence of interpretative general principles, but notes that “[t]he extent to which one can resort to ‘General Principles’ for interpretative purposes has never been established”.26 D’Aspremont agrees that general principles are used for interpretative purposes,27 but strips them of their status as a source of international law.28 D’Aspremont’s view that methods of interpretation are not encompassed in any of the sources of international law is rather extreme. His argument overlooks that interpretative provisions of the vclt despite their interpretative nature retain the status of treaty provisions as Article 38(1)(a) norms. Likewise, interpretative general principles retain their status as Article 38(1)(c) norms to the same extent that substantive and procedural general principles do, ‘­despite’ their interpretative nature.

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North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶78 (20 Feb.), quoting “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 28 (7 Sept.). The general principle that only if State abstentions are based on their being conscious of having a duty to abstain is it possible to speak of international custom is classified under Digest number 147. The general principle of res judicata is classified under Digest number 148. The general principle that international law prevails over national law is classified under Digest number 150. Wouters, Coppens and Geraets, ‘The Influence of general principles of law’, in Gaines, Egelund Olsen and Engsig Sørensen (eds), Liberalising Trade in the EU and the wto (Cambridge: Cambridge University Press, 2012), at 50. Ibid., at 50–51 (noting that “[t]hese interpretative principles fall within the scope of customary rules of interpretation of public international law”; considering in particular the general principle of ut res magis valeat quam pereat). Bassiouni, above n. 3, at 776. D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzesch and, De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 173. Ibid., at 164.

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A general principle does not have to be of the interpretative ‘type’ to aid in the Court’s interpretation of international law. In other words, the Court is not limited solely to the interpretative general principles when interpreting a particular treaty or its own Statute, i.e., the Court may also rely on substantive and procedural general principles. For example, in Territorial Jurisdiction of the International Commission, the Court relied on the general principle of freedom of navigation29 – a substantive general principle – to interpret Article 311 of the Treaty of Versailles.30 Similarly, the Court in the Interpretation of the Judgment in the Asylum Case interpreted Article 60 of its Statute by considering the procedural general principle of non ultra petita.31 The Court’s fundamental task is to interpret international law and all ‘types’ of general principles (and other sources of international law) ultimately serve this purpose. The Court acknowledged that general principles aid in its interpretation without specifying any particular general principle. For example, in the Minority Schools advisory opinion, it observed that paragraph 1 of the 1921 Declaration must be interpreted in light of “the general principles of the treaties for the protection of minorities”,32 but without further specifying those general principles. Interpretative general principles are not meant to be used by the States, at least not in the procedure before the Court, because a State (or a group of States) – unlike the Court – cannot authoritatively interpret international law for the entire international community. Its (or their) interpretation of international law does not have an effect on the remainder of the international community. Therefore, States’ reliance on interpretative general principles may be futile as they are not in a position to determine the applicable international law for their dispute – the Court is. States nevertheless rely on interpretative principles in their pleadings ­before the Court.33 However, due to the general principle of jura novit curia, their interpretation of international law carries little weight outside the international courtroom. An individual State’s interpretation of international law becomes 29 30 31 32 33

The general principle of freedom of navigation is classified under Digest number 60. Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 28–29 (10 Sept.). Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.). The general principle of non ultra petita is classified under Digest number 117. Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 17 (6 Apr.). Yotova, above n. 14, at 298 (noting that “both the pcij and the states appearing before it used general principles as a tool for systemic interpretation of the treaty provisions at hand”).

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part of its domestic (foreign relations) law and its opinio juris rather than having an effect on how international law is applied to the remainder of the international community. 4.1.4 Exceptions A general principle is usually of only one type. There are, however, certain exceptions when a general principle falls between two types. In such instances, one type is more predominant than the other. An example of such an ‘exceptional’ general principle is the general principle that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse or some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question. This general principle is between the substantive and procedural types of general principles, with the substantive being its predominant type because its application is not tied to the Court’s procedure. In other words, this general principle applies regardless of whether or not a State instituted international proceedings against the other State. However, its procedural component limits one Party against the other in presenting its claims before the Court. In addition, there are two general principles that exhibit the characteristics of substantive and interpretative types of general principles (the latter being their predominate type), namely, the general principles of good faith and pacta sunt servanda. 4.2

General Principles’ Underpinnings

General principles may be found in three bases, referred here as underpinnings, namely, in domestic law (domestic underpinning), international law (international underpinning) and in the Court’s inherent ability and discretion to decide (judicial underpinning). A general principle may have one or more underpinnings. General principles with multiple underpinnings are referred to as having a ‘mixed’ underpinning. Unlike the ‘types’ that represent the contentrelated characteristics of general principles, ‘underpinnings’ demonstrate the origins of a general principle or, more precisely, what bases and evidences the Court looks to in ascertaining a particular general principle. The Court may rely on domestic law (also referred to also as ‘municipal’ or ‘national’ law in the Court’s jurisprudence and scholarship) in ascertaining general principles. In so doing, the Court often relies on international binding and non-binding instruments. On most occasions, however, the Court does not expressly state the basis on which it has ascertained a general principle and

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relies on its own authority to interpret and determine international law. General principles with a judicial underpinning are also those that the Court ascertains by relying on its precedents. The Court’s jurisprudence is in effect an ‘international’ practice. Therefore, general principles ascertained by the Court’s reliance on its precedents could be classified as general principles with an international rather than a judicial underpinning. However, one of the distinguishing factors between the ­underpinnings – besides the nature of the document or act – is also the level of State participation. While the domestic underpinning guarantees the greatest State participation in the Court’s ascertainment of general principles and the international underpinning provides more indirect State participation, judicial underpinning does not provide for any State participation in the Court’s ascertainment of general principles. It is, therefore, reasonable to categories those general principles ascertained by the Court relying on its own jurisprudence (or the jurisprudence of another international tribunal’s) as having a judicial – not an international – underpinning, In ascertaining general principles with a judicial underpinning, the Court does not expressly rely on any external basis or evidence in proving its existence or content. It is not ruled out that the Court during its deliberations conducts comparative research of domestic laws. However, as there are no publicly available records of the Court’s deliberations, any potential bases are only speculative. General principles’ underpinnings are not static and may change over the course of the Court’s jurisprudence. For example, a general principle that was ascertained based on domestic law may acquire an international underpinning in a later decision. In such instances, that general principle acquired a ‘mixed’ underpinning. 4.2.1 Domestic Underpinning In theory, the Court ascertains a general principle with a domestic underpinning by relying on domestic laws and domestic court decisions. However, in practice the Court very rarely relied on domestic laws in ascertaining general principles.34 Scholars agree that there are no more than a handful of cases where the Court allegedly ascertained a general principle with a domestic underpinning.35 34 35

Yotova, above n. 14, at 322. Cf. Gaja, ‘General Principles of Law’, Max Planck Encyclopedia of Public International Law (2013), at ¶32 (noting that “[p]rinciples drawn from municipal laws were applied only with caution by the icj”). Gaja, above n. 34, at ¶¶9–12.

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The Court does not rely often on domestic law. Hudson, for example, observed that the Court relies on domestic law when “the protection of property or contract rights of individuals is in question [… and when determining] whether a person possesses the nationality of a particular State” or when determining whether domestic remedies have been exhausted.36 All these instances relate to the question of diplomatic protection. When concerned with domestic laws, the Court usually does not single out one domestic system, but concerns itself with what is “generally accepted by municipal legal systems […] and not to the municipal law of a particular State”.37 The process that takes place when the Court ascertains a general principle by relying on domestic laws is here termed elevation. The Court detaches the domestic norm from its origins and elevates it to the international plane, where the norm gains a separate existence. The Court is not bound to follow the interpretation of the norm in domestic law, nor does it consider the norm’s drafting history at the domestic level. The same applies vice versa: the Court’s interpretation of domestic law does not change the meaning attributed to it by the domestic authorities. Explained with a hypothetical example, the Court finding a general principle in French law does not have an effect on French law. The Court may also further modify and develop norms that originate in domestic laws, regardless of the potential legislative changes on domestic level(s). According to Akehurst, the changes on the domestic levels after the Court ascertained a norm on the international level also affect the Court’s interpretation, leading to the situation where the Court “may have misinterpreted the municipal laws from which the principle was derived”.38 However, Akehurst’s point has little relevance to an international Court whose function is to consider international (and not domestic) law. The Court may also reinterpret the States’ understanding of their domestic laws in certain circumstances. For example, the Court in Ahmadou Sadio Diallo noted that

36 Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co., 1943), at 622. 37 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶50 (5 Feb.). 38 Akehurst, ‘Equity and General Principles of Law’, 25 Int’l & Comp. L. Q. 4, 801 (1976), at 818. See also ibid., at 815 (observing that general principles “are always capable of undergoing a process of orderly change, as the municipal laws on which they are based are amended”).

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where a State puts forward a manifestly incorrect interpretation of its domestic law, particularly for the purpose of gaining an advantage in a pending case, it is for the Court to adopt what it finds to be the proper interpretation.39 However, the Court’s interpretation of international law can have an effect on the States’ conduct on the domestic level. For example, in the Difference Relating to Immunity advisory opinion, the Court determined that “the Government of Malaysia is obligated to communicate this advisory opinion to the competent Malaysian courts, in order that Malaysia’s international obligations be given effect and Mr. Cumaraswamy’s immunity be respected”.40 International law – and the Court whose task it is to interpret it – d­ etermines the application of domestic law on the international level,41 while domestic courts’ decisions do not affect the Court’s jurisprudence. As the Court stated in Factory at Chorzów, “attributing to a judgment of a municipal court power indirectly to invalidate a judgment of an international court [… would be] impossible”.42 A domestic and an international norm may have the same name. However, on the domestic and international levels they differ in nature, scope and content. For example, the Court in Exchange of Greek and Turkish Population listed a number of reasons why the word ‘established’ in Article 2 of the Convention Concerning the Exchange of Greek and Turkish Populations could not be interpreted by relying on domestic law.43 Similarly, in International Status of South West Africa, the Court interpreted the word ‘mandate’ and noted that [t]he object of the Mandate regulated by international rules far exceeded that of contractual relations regulated by national law. […] It is therefore not possible to draw any conclusion by analogy from the notions of mandate in national law or from any other legal conception of that law.44 39 40 41 42 43 44

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶70 (30 Nov.). Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] i.c.j. 62, at ¶65 (29 Apr.). See also Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 27 (precluding States from invoking their domestic law as a justification for not performing treaty obligations). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 33 (13 Sept.). Exchange of Greek and Turkish Population, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 10, at 19–20 (21 Feb.) (noting that “[i]t is hardly likely that the intention was to fix this criterion by means of a reference to national legislation”). International Status of South West Africa, Advisory Opinion [1950] i.c.j. 128, at 132 (11 July).

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The notion of ‘nationality’ also brings with it different processes of determination on the domestic and on the international level. For example, the Court in Nottebohm determined that Mr. Nottebohm was a Guatemalan national in accordance with the international processes of determining nationality; while Liechtenstein (rightly) claimed that Mr. Nottebohm is its own national, pursuant to Liechtenstein’s domestic laws. The Court concluded that Mr. Nottebohm’s Liechtenstein nationality “was granted without regard to the concept of nationality adopted in international relations”.45 Similarly, the notion of a ‘sovereign’ is different in international and domestic law. As the Court’s Chamber said in the 2005 Frontier Dispute, “the concept of the intention and will to act as sovereign […] is a concept of international law and cannot be transplanted purely and simply to colonial law”.46 Herczegh confirms that the “principles of law formulated identically, may have different contents in the different systems of law”.47 It is here assumed that by ‘systems’ Herczegh refers to domestic and international legal systems. Domestic principles – domestic norms in the modality of ‘principles’ – are not to be automatically equated with the general principles with a domestic underpinning. For example, the Court in Anglo-Iranian Oil Co. referred to a ‘domestic principle’ of “nationalization of the oil industry in Iran”, proclaimed by the Iranian authorities in 1951,48 but it did not consider this ‘domestic principle’ to be part of international law. The Court exceptionally relied on the ‘principle of domestic law that a company has a legal personality distinct from that of its shareholders’ in Ahmadou Sadio Diallo, because – according to the Court – it had been “repeatedly acknowledged” in international law.49 The Court also came close to applying a domestic principle in “Lotus” when it referred to the French courts’ interpretation of the territorial principle.50 The Court is unable to rely directly on domestic law because its task is to resolve disputes in accordance with international (not domestic) law. Some scholars are, however, of the opinion that the Court may apply domestic law as 45 46

Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 26 (6 Apr.). Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90, at ¶102 (12 July). Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595, at ¶44 (11 July) (noting that “[t]he Court does not […] have to consider the provisions of domestic law [in relation to the objection relating to the recognition of the Head of State]”). 47 Herczegh, General Principles of Law and the International Legal Order (Budapest: ­Akadémiai Kiadó, 1969), at 42. 48 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 102 (22 July). 49 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶155 (30 Nov.). 50 “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 23 (7 Sept.).

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part of international law. Hersch Lauterpacht, for example, said that “there was […] no doubt that, in the absence of any express rule of international law, the generally recognised rules of private [domestic] law may be and should be applied”.51 Parry similarly suggests that “municipal law is also part of international law”.52 These authors seem not to recognise the process of elevation that takes place when the Court ascertains a general principle in domestic laws. Domestic law does not cater to inter-State relations and cannot (usually) fill the gaps in international law. For example, the Court confirmed in the Kosovo advisory opinion that “[it] can respond to that question by reference to international law without the need to enquire into any system of domestic law”.53 Spiermann and Gaja rightly observe that domestic law is not equipped to deal with international legal issues.54 According to Gaja, “[t]he main reason lies in the difference in structure between international society and municipal societies”.55 Court’s references to domestic law are not automatically references to general principles with a domestic underpinning.56 For example, the Court in Barcelona Traction case considered domestic law in ascertaining the status corporations generally have in domestic law and whether a shareholder company could be just as ‘diplomatically protected’ as a non-shareholder company. The Court’s findings did not lead to the ascertainment of any particular general principle, save for clarifying the already existing general principle of diplomatic protection. Scholars are in favour of having a high threshold of acceptance when a general principle is ascertained on the basis of domestic laws. For example, de Wet concludes that it is not “enough that the general principles are common to most legal systems, but they should also form the basis of those systems”.57 51

Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co., 1927), at 246. 52 Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 12. 53 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403, at ¶26 (22 July). 54 Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 175; Gaja, above n. 34, at ¶7. 55 Gaja, above n. 34, at ¶7. 56 Redgwell, above n. 15, at 17. See also Yotova, above n. 14, at 311, 322. 57 De Wet, ‘Judicial Review as an Emerging General Principle of Law and its Implications for the International Court of Justice’, xlvii Neth. Int’l L. Rev. 181 (2000), at 186.

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According to de Wet, the general principles of good faith and res judicata meet this high standard.58 Similarly, Hersch Lauterpacht describes the general principle of res judicata as a “broad principle adopted in all systems of law”.59 Parry more moderately suggests that general principles are to be recognised by “either all civilized nations or a substantial number of them”.60 Those in favour of general principles’ universal acceptance perhaps fear that the Court’s ascertainment of general principles would otherwise not be based on norms agreed upon by the States and would lead to the Court claiming more discretion than States seem to have agreed to by adopting its Statute. Schlesinger offers an alternative conclusion. He writes that “[a] principle which is not generally recognized by civilized nations […] will not easily be regarded as so fundamental that a State will be compelled to adhere to it”.61 Schlesinger’s opinion could be justified if the Court (and the international community) agreed that some general principles are more fundamental than others. However, in the absence of any agreed-upon criteria for distinguishing between the ‘fundamental’ and ‘ordinary’ general principles, placing faith in States to abide only by certain general principles of law (some of which are arbitrarily determined in scholarly writings) poses a risk to the legal stability and certainty of international law, at least as far as State compliance with general principles is concerned. Some, if not the majority of scholars interpret Article 38(1)(c) of the Court’s Statute as conferring on the Court the competence to ascertain only general principles with a domestic underpinning. Redgwell, for example, confirms that the common perception is that Article 38(1)(c) provides (only) for general principles with a domestic underpinning.62 Elias and Lim also note that Article 38(1)(c) “was meant to cover ‘only those principles which were clearly laid down in the municipal law systems of dominant States’”.63 Herczegh similarly notes that Article 38(1)(c) encompasses only those general principles that derive from domestic law.64 Considering that Herczegh distinguishes between 58 Ibid. 59 Hersch Lauterpacht, above n. 51, at 246 (emphasis added). 60 Parry, above n. 52, at 92. 61 In making this assertion, Schlesinger refers to the statement of a Justice of the United States Supreme Court in Palko v. Connecticut, 302 U.S. 319 (1937). Schlesinger, above n. 1, at 744. 62 Redgwell, above n. 15, at 7 (noting that this is a “widely accepted view”). 63 Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 20 (quoting Cassese). 64 Herczegh, above n. 47, at 19–20, 33.

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general principles of domestic and of international law,65 the general principles of international law do not – according to his assertion – constitute part of Article 38(1)(c). Pellet similarly observes that [the] requirement of recognition of the general principles in foro domestico is the criterion which differentiates the principles of lit. (c) of Art. 38 para. 1 from […] the general principles of international law.66 On the other hand, Hudson considered that, if taken out of the context of Article 38 of the Court’s Statute, the phrase “general principles of law recognized by civilized nations”67 would primarily refer to general principles of international law. However, Hudson reasons that treaties and customary international law sufficiently cover the area of international law and, therefore, general principles are most likely supposed to reach beyond international law, by empower[ing] the Court to go outside the field in which States have expressed their will to accept certain principles of law as governing their relations inter se, and to draw upon principles common to various systems of municipal law or generally agreed upon among interpreters of municipal law.68 Ultimately, there is no difference between the general principles identified in foro domestico and those identified in other (international or judicial) underpinnings. Following the requirement to apply international law exclusively,69 all general principles that the Court ascertains come to form part of international law when used in the Court’s jurisprudence. 4.2.2 International Underpinning The doctrinal misperception that general principles are identified solely in domestic law has been slowly changing. An increasing number of scholars acknowledge that general principles may be identified in international law, or at least that over time (the recurrent) general principles lose their connection to

65 66 67 68 69

See, e.g., ibid., at 33, 34, 42, et seq. Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 767. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). Hudson, above n. 36, at 611. Pellet, above n. 66, at 700.

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domestic law and State practice.70 Bassiouni and Gaja, for example, propose that general principles are “expressions of other unperfected sources of international law enumerated in the [Court’s Statute]”71 and that they may be asserted “whether or not [the Court] finds a parallel in municipal systems”.72 Yotova confirms that the International Law Commission also “noted that the general principles of law could ‘refer to principles of international law proper’”.73 The process taking place when the Court ascertains a general principle on bases that already form part of international law is transplantation. The Court transplants a norm from one form to another, from one source of international law to another. For example, the norm that may already exist in the form of a treaty provision or customary international law with the process of transplantation also becomes a general principle – and vice versa – a norm belonging to Article 38(1)(c) may come to constitute the Article 38(1)(a) or 38(1)(b) source, while retaining its position in the ‘original’ source. The Court in effect repeats the same norm in multiple sources and enables its diversified evolution over the two or three sources. The same process also applies when the Court determines that a particular treaty provision has come to form (also) a norm of customary international law. The Court ascertains general principles by relying on binding and non-­ binding international instruments or norms. According to Tunkin and Yotova, general principles may be ascertained on the basis of treaty provisions and customary international law.74 Yotova additionally lists United Nations resolutions and “other non-binding statements” as providing a basis for general principles,75 while other scholars refer to the “general international consensus”76 or to “international practice”.77 The expression ‘international practice’ has two meanings, namely, State practice and the Court’s practice. In this particular work, State practice, as a constitutive element of determining norms of customary international law, is associated with the international underpinning, while the Court’s practice gives rise to the judicial underpinning of general principles. 70 71 72 73 74 75

76 77

Yotova, above n. 14, at 274, 275 (referring to Cassese and Brownlie). Bassiouni, above n. 3, at 768. Gaja, above n. 34, at ¶20. Yotova, above n. 14, at 275. Herczegh, above n. 47, at 43–44 (also referring to Tunkin); Yotova, above n. 14, at 305 (relying on the Court’s jurisprudence). Yotova, above n. 14, at 322. See also Bassiouni, above n. 3, at 769, 789; Parry, above n. 52, at 2; Akehurst, above n. 38, at 818 (considering domestic law to be direct evidence of general principles of law; and considering General Assembly resolutions, international decisions and comparative law books as indirect evidence of general principles of law). Kaufman Hevener and Mosher, above n. 15, at 602. Elias and Lim, above n. 63, at 28.

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Whether identified in treaties, customary international law or other nonbinding instruments or practice, general principles with an international ­underpinning exist independently of the bases that provided for their identification. The Court ascertained a number of general principles on the basis of treaty provisions. For example, the Court noted that the general principle of status quo ante bellum “was one of the leading principles of the provisions of the Treaty of Versailles concerning the Danube”.78 In Mavrommatis Jerusalem Concessions the Court referred to Article 4 of Protocol xii to the Treaty of Lausanne “which lays down the fundamental principles of the maintenance of contacts and agreements duly entered into”.79 Similarly, in the Rights of Nationals of the United States of America, the Court ascertained the general principles of sovereignty, territorial integrity, and economic equality as part of the preamble to the 1906 General Act of the Act of the Algeciras.80 Other treaties that provided the bases for the Court’s ascertainment of general principles with an international underpinning are the United Nations Charter, the Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic Relations, the Geneva Convention on the High Seas, the Genocide Convention on the Prevention and Punishment of the Crime of Genocide, the Convention for the Establishment of the Inter-Governmental Maritime Consultative Organization, among others. Some of the general principles with an international underpinning found their basis in the Court’s Statute. One of the most recurrent general ­principles – the general principle that the Court has jurisdiction only with the consent of the Parties – is embodied, although not verbatim, in Article 36(2) of its Statute. However, the Court did not always invoke Article 36(2) when considering this general principle,81 which attests to its existence independently of the Statute. Similarly, the Court referred to the general principle of kompetenz-­ kompetenz, which is

78 79 80 81

Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 27 (8 Dec.). Mavrommatis Jerusalem Concessions, Judgment [1925] p.c.i.j. (ser.A) No. 5, at 48 (26 Mar.). Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176, at 183, 184, 197 (27 Aug.) (also noting that the general principle of economic equality was recognised also in the 1911 Convention between France and Germany). See, e.g., Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19, at 32 (15 June) (noting that “[t]he Court cannot decide such a dispute without the consent of Albania”).

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[an] accepted judicial principle enshrined in Article 36, paragraph 6, of the Court’s Statute, which provides that ‘in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court’.82 In Nottebohm, the Court noted that the general principle of kompetenz-­ kompetenz had been recognised in the 1899 and 1907 Hague Conventions and had originated in the Alabama arbitration. The Court said that this general principle assumes particular force when the international tribunal is no longer an arbitral tribunal […] but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations.83 The Court concluded that whether or not its Statute recognised the general principle of kompetenz-kompetenz, it could rely on it as part of the applicable international law that is bound to apply according to Article 38(1). In the Court’s words, [t]he judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.84 The Court ascertained a general principle also in a treaty that had lapsed. The Court relied on Article 22 of the Covenant of the League of Nations in ascertaining the general principle of non-annexation85 and determined that South Africa was bound by it because the general principles of Article 22 were also embodied in the United Nations Charter.86 The Court ascertained general principles also on the basis of non-binding international instruments, such as the United Nations General Assembly and Security Council resolutions, the work of the International Law Commission 82 83 84 85 86

Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶45 (2 Feb.). See also Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 36(6). Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 119 (18 Nov.). Ibid., at 120. International Status of South West Africa, Advisory Opinion [1950] i.c.j. 128, at 131–133 (11 July). Ibid., at 133, 137.

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and statements of the Secretary-General. For example, the Court in Western Sahara noted that General Assembly resolution 1514 (xv) embodied (among others) the general principle of self-determination.87 In the Review of Judgment No. 273, the Court confirmed the existence of the general principle of vested rights by relying on the General Assembly Staff Regulation.88 The position taken here is that both binding and non-binding international instruments provide a basis for the Court’s ascertainment of general principle (a broader view of the international underpinning). A narrower understanding of international underpinning would warrant that only binding instruments provide the necessary ‘international’ basis for the ascertainment of general principles; under the narrower view the non-binding international instruments are classified under the judicial underpinning. 4.2.3 Judicial Underpinning Judicial underpinning is by far the most popular underpinning of general principles ascertained by the Court – the Court mostly did not refer to any basis or evidence in confirming the existence or scope of the general principles it identified over the course of its jurisprudence. Gaja confirms that “[t]he assertion by the icj of a general principle of law […] is only rarely accompanied by an adequate demonstration of its existence in international law”.89 Instances where the Court omitted to cite any basis or referred solely to its precedent(s) in ascertaining a general principle have been considered as the Court’s reliance on general principles with a judicial underpinning. General principles with a judicial underpinning evidence the process of judicial creation, where the Court relies on its inherent judicial authority in ascertaining new norms of international law without the States’ participation. For example, in Nottebohm the Court confirmed that it was able to ascertain a general principle, whether or not it had also been confirmed in a treaty or its Statute because the Court has “‘to decide in accordance with international law’”.90 An example of a general principle with a judicial underpinning is that of diplomatic protection. The Court in 1924 merely stated that 87 88 89 90

Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶68 (16 Oct.). See also Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (xv) (14 Dec. 1960). Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶73 (20 July) (referring to it as the “acquired right”). Gaja, above n. 34, at ¶20. Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 120 (18 Nov.) (quoting Article 38(1) chapeau of the Court’s Statute).

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[i]t is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.91 There is also no reference to diplomatic protection in the Court’s Statute and the Court did not refer to any external basis – either international case law, other treaties or customary international law – that would support the finding of such a (new) norm of international law. The absence of any reference to either domestic or international law in ascertaining a general principle demonstrates the Court’s inherent authority to interpret and determine international law. Kleinlein opposes the view that the Court can freely judicially create the law without relying on an additional basis. He acknowledges that the judges in practice exercise a ‘jurisgenerative function’ when confirming already existing general principles; however, he states that a judge will feel that it is not enough to deduce a general principle, but that she needs to refer to some sort of consent or recognition – a voluntary element – that backs the respective general principle.92 One of the reasons why the Court does not refer to any external bases in ascertaining most of the general principles may be the “alleged difficulty of proving general principles of law”.93 The Court (re)confirms certain general principles (along with other findings) by relying on its precedents and, usually, by noting that there is no evidence that would run counter to its previous findings.94 The Court’s (more or less) consistent reliance on its precedents in ascertaining a particular general principle attributes to it a status of being ‘well-recognised’ or ‘generally accepted’. 91 92

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 12 (30 Aug.). Kleinlein, ‘Customary International Law and General Principles: Rethinking Their Relationship’, in Lepard (ed.), Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017), at 149. 93 Akehurst, above n. 38, at 817. 94 See Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 31 (25 May) (noting that “[n]othing has been advanced in the course of the present proceedings calculated to alter the Court’s opinion on this point”). See also Yotova, above n. 14, at 307 (noting that the Court “is likely to follow its own case law establishing that a given rule has the character of a general principle of international law”).

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Contrary to the popular scholalry belief, the Court’s jurisprudence demonstrates that not all references to ‘well-recognised’ general principles refer to domestic law. For example, the Court in the Right of Passage over Indian Territory case considered the general principle that once the Court establishes jurisdiction, unilateral action by a Party cannot have an effect on the Court’s jurisdiction. The Court concluded that this “is a rule of law generally accepted, as well as one acted upon in the past by the Court. […] In the Nottebohm case the Court gave expression to that principle in the following words […]”.95 A general principle that does not initially have a judicial underpinning acquires it over time, after the Court has ascertained the same general principle in its jurisprudence on more occasions. In other words, what was initially a general principle with a domestic or international underpinning, in the Court’s subsequent jurisprudence turns – sooner or later – into a general principle with a judicial underpinning. The Court is in the habit of relying on its precedent rather than invoking other bases when reconfirming the same general principles that it previously relied upon. When the Court invokes other evidence and bases when referring to general principles that have already been ascertained in its jurisprudence, these other bases served the purpose of expanding or moulding the content of those general principles. On occasions, the Court considers the decisions of other international tribunals in ascertaining general principles. For example, in seeking to prove the existence of a general principle that would prohibit Turkey from prosecuting the French lieutenant Demons the Court said that “[this] must be ascertained by examining precedents offering a close analogy to the case under consideration”.96 Similarly, in the Factory at Chorzów the Court said that the general principle of reparation “seem[ed] to be established by international practice and in particular by the decisions of arbitral tribunals”.97 The Court drew a distinction between the precedent of an international court and an arbitral award in Nottebohm. In this case, the Court noted that the general principle of kompetenz-kompetenz had been generally recognised since the Alabama arbitration, but that it assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is 95 96 97

Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.). “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 21 (7 Sept.) (emphasis added). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 47 (13 Sept.).

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[­instead] an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations.98 In Nottebohm, the Court also confirmed that some aspects of the general principle of the bond of nationality, ascertained by the Court, derived from arbitral awards.99 Despite the relative novelty in relation to the judicial underpinning of general principles – considering that scholars usually assume general principles have (only) a domestic underpinning – there are some that acknowledge the Court’s reliance on “international judicial and arbitral decisions” in ascertaining general principles.100 Kleinlein, for example, notes that the “jurisprudence of international courts and tribunals […] contribute to the recognition of a general principle”,101 while Andenæs and Leiss add that “the court has simply referred to a single decision of another court or tribunal in order to determine a rule of customary international law or a general principle”.102 4.2.4 Mixed Underpinning The Court may find a basis for the same general principle in more underpinnings. General principles to which the Court attached multiple ­underpinnings – whether in one decision or throughout its jurisprudence – were considered to have a ‘mixed’ underpinning. Mixed underpinning is not a new, fourth category of general principles’ underpinning. It merely demonstrates that, unlike with the ‘type’, general principles may have simultaneously more than one underpinning. An example of a general principle with a mixed underpinning is that of ­reparation. The Court in Factory at Chorzów, for example, observed that the general principle of reparation had both a judicial and domestic underpinning 98 99

Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 119 (18 Nov.). “[A]rbitrators have evolved certain principles for determining whether the full international effect was to be attributed to the nationality invoked. […] They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the persons concerned and one of the States whose nationality is involved”. Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 22 (6 Apr.). 100 Yotova, above n. 14, at 316; Akehurst, above n. 38, at 818 (considering international jurisprudence as indirect evidence of general principles of law). 101 Kleinlein, above n. 92, at 149. 102 Andenæs and Leiss, ‘The Systematic Relevance of “Judicial Decisions” in Article 38 of the icj Statute’, 77 ZaöRV, 907 (2017), at 959.

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when stating that “[i]t is […] a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts”.103 Similarly, by noting that the general principle of provisional measures was recognised in treaties, the Court’s Statute and international jurisprudence, the Court attributed to this general principle a mixed (international and judicial) underpinning. 104 4.3

Scholarly Attempts to Categorise General Principles

Scholars have attempted to categorise general principles. However, without an agreement on the definition of general principles, scholarly categories reflect a broad range of positions rather than self-standing categories or characteristics of norms encompassed in Article 38(1)(c). For starters, scholars refer to general principles with different expressions, from ‘general principles of law’, ‘general principles of international law’, and ‘general principles’, to ‘principles’ or even ‘principles of international law’.105 It is assumed here that when using any reference that resembled ‘general principles of law’, scholars refer to Article 38(1)(c) norms, unless expressly stated otherwise. Redgwell, for example, expressly noted that, according to her, the “principles of general international law broadly understood” do not form part of Article 38(1)(c).106 Scholars sometimes describe the categories of general principles in the third person, without crediting the classification to any particular author. Kleinlein, for example, refers to “[a]n alternative broader understanding of general principles of international law”107 without clarifying whether this ‘alternative broader understanding’ belongs to him or other authors. Another difficulty was pairing the scholarly-identified categories with specific examples of general principles.108 For example, Elias and Lim list four 103 Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 31 (26 July). See also Gaja, above n. 34, at ¶9. 104 Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.). See also Yotova, above n. 14, at 314. 105 See also Saganek, ‘General Principles of Law in Public International Law’, Polish Y. Int’l L. (2017), at 243. 106 Redgwell, above n. 15, at 10 (also noting that there is “a blurry boundary between principles of general international law and ‘general principles of law’ in the Article 38(1)(c) sense”). 107 Kleinlein, above n. 92, 134. 108 See also Elias and Lim, above n. 63, at 5.

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seemingly unrelated categories of general principles, each consisting of three sub-categories, without listing examples of general principles for each of their categories and sub-categories.109 Some scholarly categorisations are vague and, consequently, potentially overlapping. For example, Schachter classifies the general principles into five categories, namely, into [t]he principles of municipal law ‘recognized by civilized nations’[;] General principles of law ‘derived from specific nature of the international community’[;] Principles ‘intrinsic to the idea of law and basic to all legal systems’[;] Principles ‘valid through all kinds of societies in relationships of hierarchy and co-ordination’[; and] Principles of justice founded on ‘the very nature of man as a rational and social being’.110 Firstly, Schachter relies on a variety of expressions of the word ‘principle’ – from ‘principles’ to ‘general principles of law’ to ‘principles of justice’ – without explaining the differences of these variations on the word ‘principle’. Secondly, Schachter’s first category of principles of municipal law ‘recognized by civilized nations’ and third category of principles ‘valid through all kinds of societies in relationships of hierarchy and co-ordination’ seem to overlap. Overall, Schachter’s classification provides little guidance on general principles’ characteristics and role in the international order. Some scholarly categorisations seem to be outdated. Cheng, for example, in his opus on the general principles lists four main categories of general principles, namely the “principle of Self-Preservation”, the “principle of Good Faith”, the “juridical concept of Responsibility” and “[c]ertain general principles of law in Judicial Proceedings”.111 Such classification was perhaps appropriate at the time of Cheng’s writing in 1953; however, these categories are too narrow to encompass the multitude of general principles that the Court has identified since 1953. Interestingly, scholars have mostly settled for a variety of three-fold categorisations of general principles,112 their preferred method being categorising

109 Ibid., at 6, 7, 20–31. 110 Schachter, International Law in Theory and Practice: Developments in International Law (Dordrecht: Martinus Nijhoff, 1991), at 50. 111 Cheng, General Principles of Law as Applied by International Courts and Tribunals (­London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), at 26. 112 Kaufman Hevener and Mosher, above n. 15, at 602 (referring to Friedmann and Cheng); Elias and Lim, above n. 63, at 6, 7, 20–35.

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general principles according to their content (type),113 and not according to their underpinning. Some have considered the content (type) and the underpinning of general principles as categories that could not be merged. In other words, a general principle with an international underpinning could also not be considered to be simultaneously a substantive general principle. Such reasoning was put forward, for example, by Kaufman Hevener and Mosher, who classified substantive general principles separately from the general principles with a domestic, judicial and potentially international underpinning.114 The plethora of categorisations hardly provides common ground for a scholarly agreement on the nature and definition of general principles. There seems to be an agreement among scholars, however, that general principles are either substantive or procedural115 and that they are derived from domestic and international law.116 In support of the procedural general principles Saganek notes that procedural principles are “[o]ne of the groups of general principles which is very frequently referred to”.117 In reflecting on Cheng’s work, Parry confirms that general principles “relate to the conduct of international judicial proceedings”.118 Many also impliedly recognise the interpretative nature of general principles.119 Herczegh, for example, notes that general principles of international law (which are according to him separate from general principles of 113 Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), at 168. 114 Kaufman Hevener and Mosher, above n. 15, at 602. 115 Lloyd-Jones, ‘General principles of law in international law and common law’, Speech at Conseil d’État, Paris (2018), at 4; Kaufman Hevener and Mosher, above n. 15, at 602 (referring to substantive and ‘knowable’ general principles of law); Schlesinger, above n. 1, at 736 (referring to “procedural and evidentiary principles”); Kozłowski, ‘Systematicity of General Principles of (International) Law – An Outline’, Polish Y. Int’l L. (2017), at 232. 116 Kleinlein, above n. 92, at 135 (referring to Mosler); Yotova, above n. 14, at 274–275 (referring to Brownlie); White, ‘Equity: A General Principle of Law Recognized by Civilized Nations?’, 4 L. & Justice J. 1, 103 (2004) at 108; Lloyd-Jones, above n. 115, at 1; Redgwell, above n. 15, at 9–10 (but noting that “such principles are distinct from principles derived from treaties or from customary international law”); Bassiouni, above n. 3, at 772 (“‘General principles are found in […] [n]ational legal systems or [in] international law”). 117 Saganek, above n. 105, at 249. See also Paparinskis, ‘Conclusions: General Principles and the Other Sources of International Law’, in Andenæs, Fitzmaurice, Tanzi, and Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/­ Nijhoff, 2019), at 119 (quoting Kolb’s assertion that “‘[g]eneral principles are not only substantive’”). 118 Parry, above n. 52, at 86. 119 Kleinlein, above n. 92, at 142.

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­domestic law) “fill an important part in the interpretation and application of the particular legal rules”.120 However, scholars consider the interpretative aspect of general principles as a ‘function’ rather than a content-related characteristic.121 A few authors also allude to the possibility of a judicial underpinning.122 For example, Kohen and Schramm note that “[t]he judiciary has also developed a number of general principles of law”.123 Kaufman Hevener and Mosher similarly refer to general principles that derive from “international arbitral and adjudicatory proceedings”, in addition to those deriving from domestic court decisions.124 Scholars attribute several other underpinnings to general principles, such as moral law (or moral values),125 regime-specific instruments,126 legal logic,127 the legal systems generally,128 inchoate custom,129 equity,130 and the “‘nature of man as a rational and social being’”.131 Lepard, for example, notes that among the “compelling or essential ethical principles [… is] the prohibition of genocide”.132 Pellet seems to equate equitable and moral general principles, while distinguishing them from general principles with a domestic underpinning and “the general principles of international law”.133 These additional (and 120 Herczegh, above n. 47, at 69. 121 Bassiouni, above n. 3, at 776 (noting that the “interpretative function is the most widely recognized and applied function of ‘General Principles’ and the one that is evidently the most needed and useful”; emphasis added); Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’49 Canadian Y. Int’l L. 3 (2011), at 47; Yotova, above n. 14, at 298 (referring to general principles “as a tool for systemic interpretation”). 122 See Kozłowski, above n. 115, at 232 (citing Brownlie’s Principles of Public International Law, 8th edition). 123 Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013) (giving examples of “audiatur et altera pars, actori incumbit onus probandi, or the fact that the judge of merits is also judge of the incidental jurisdiction”). 124 Kaufman Hevener and Mosher, above n. 15, at 602. 125 Yotova, above n. 14, at 276 (referring to Besson). 126 See Kleinlein, above n. 92, at 137. 127 Elias and Lim, above n. 63, at 6 (referring to “principles logically presupposed by the concept of law itself”); Redgwell, above n. 15, at 9, footnote 34 (referring to Mosler). 128 Mendelson, ‘The International Court of Justice and the sources of international law’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), at 79. 129 Elias and Lim, above n. 63, at 7. 130 Ibid. 131 Schachter, above n. 110, at 50 (quoting G Fitzmaurice). 132 Lepard, above n. 113, at 165 (emphasis added). 133 Pellet, above n. 66, at 767 (emphasis added).

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mostly non-legal) underpinnings, although perhaps considered by the judges in camera, did not find a place in the Court’s publicly-available decisions. The overall reference to ‘underpinnings’ of general principles in literature is not always clear. When referring to ‘general principles of international law’ are scholars referring to general principles identified in international law or general principles applicable as part of international law? This difference may at first be only subtle; however, the former statement refers to general principles with an international underpinning, while the latter provides a description of all general principles because – regardless of their underpinning – all general principles are a source of international (and not domestic) law. Those who have referred to ‘general principles of international law’ tend to also refer to the ‘general principles of domestic law’. The expression ‘general principles of domestic law’ seems to refer to norms (whether in the modality of ‘principles’ or ‘rules’) of domestic law. The Court, however, cannot directly rely on domestic law in deciding a dispute in accordance with Article 38(1) of its Statute. By referring to general principles ‘of domestic law’ or ‘of international law’, scholars perhaps wish to emphasise that general principles are derived from domestic law, i.e., that general principles have a domestic underpinning. For example, Lepard refers to ‘general principles of domestic, international and moral law’. His reference to “general principles of moral law”134 suggests that he might have had in mind that general principles ‘originate in (or from) moral law’, when using the word ‘of’. The ‘Cube’ seeks to clarify some of the scholarly confusion related to the categorisation of general principles by providing a visual model of the different combination of characteristics that general principles may adopt in the Court’s jurisprudence. The ‘Cube’ demonstrates that any combination of the type and underpinnings of general principles is possible and that all general principles, regardless of their differences, share the same ‘space’ within Article 38(1)(c) of the Court’s Statute. The ‘Cube’s classification of general principles reflects what scholars have not yet been able to agree upon – that general principles – regardless of their underpinning, content, generality or specificity, fundamental nature or ‘ordinariness’ – belong to the same source of international law. 134 Lepard, above n. 113, at 165 (emphasis added).

Chapter 5

The Relationship between General Principles and Other Sources of International Law General principles are a source independent of treaties and customary international law. As the Court confirmed in the Continental Shelf (Tunisia/Libya) case, “[it] is […] bound to have regard to all the legal sources specified in Article 38, paragraph 1, of the Statute of the Court in determining the relevant principles and rules applicable to the delimitation”.1 General principles are one of the three legal sources codified in Article 38(1), and do not depend on treaties or norms of customary international law to confirm their existence. As a self-standing source, general principles may form relationships with the other two sources of international law. This chapter considers the independence of general principles vis-à-vis treaties and customary international law and their ability to supplement the other two sources (while retaining their independence), and lays out the canons of supersession among these sources. A norm may exist in more than one source of international law at the same time. This supports the proposition that even when embodied in another source of international law, general principles retain their separate existence also when embodied in a treaty provision or when forming customary international law. This chapter also considers a novel notion of the ‘other rules’ of international law. ‘Other rules’ either extend the notion of general principles as understood here or represent an additional source of international law not encompassed in ­Article 38(1). The chapter concludes by briefly considering the potential sources outside the scope of Article 38(1) and compares the norms belonging to ­Article 38(1)(c) with concepts of jus cogens, ex aequo et bono and equity. General principles’ relationship to the other sources of international law can be considered as the fifth conclusion, following the four conclusions presented in Chapter 3. However, the complexity of the topic and the length of the text warrant their own chapter. The 1920 Advisory Committee of Jurists stipulated that the sources “will be considered by him [the judge] in the undermentioned order”,2 meaning that 1 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶23 (24 Feb.) (emphasis added; also noting that “it is also bound, in accordance with paragraph 1(a), of that Article, to apply the provisions of the Special Agreement”). 2 Procès-Verbaux of the Proceedings of the Committee, 16 June-24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 306. Root and Phillimore retained this formulation in their proposal. Ibid., at 344. Phillimore suggested that the Court applies © koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_007

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general principles would be resorted to last.3 In support of this position, Descamps noted that “[i]f a well known custom exists, there is no occasion to resort to a general principle of law”.4 However, the idea of a hierarchy among the sources of international law was never officially adopted as part of the Statute of the Permanent Court of International Justice (pcij). The current Article 38(1) does not allude to any order in which the Court is bound to resort to the sources of international law.5 Bassiouni and Greenwood agree that removing the reference to an ‘order’ in the chapeau of Article 38 meant also removing any potential hierarchy among the sources of international law.6 However, in comparing general principles with treaty provisions or customary international law, scholars nevertheless attribute an ‘inferior’ status7 to general principles and consider them a source that “largely disappear[s] behind the two other ‘main’ sources and appear[s] to be transitory in nature”.8 The absence of any hierarchy among the sources of international law in theory means that the Court may resort to general principles alongside treaty provisions or give precedence to general principles over norms of customary international law. However, according to Thirlway, the Court will not rely on general principles when treaties and customary international law are available and “can be cited”.9 Indeed, the Court in practice prioritises treaties over customary norms and general principles, mainly because treaties “[are] based on the express consent of States”,10 are the clearest expressions of the States’ will and establish “what that State regards as desirable institutions or mechanisms



“[i]n the first place Conventional law, and in the second place, international law actually in force”. Ibid., at 295. 3 “If neither law nor custom existed, could the judge pronounce a non-liquet? The President [Descamps] was not convinced that he could not: the judge must then apply general principles of law”. Ibid., at 318 (Descamps). 4 Ibid., at 337 (Descamps); Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 773. 5 The reference to ‘in the order following’ was removed from the final draft by the League of Nations and it has not been reintroduced since. Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 782. 6 Ibid. Cf. Greenwood, ‘Sources of International Law: An Introduction’, United Nations Audiovisual Library of International Law (2008), at 5 (noting that “it is [nevertheless] possible to discern element of a hierarchy in certain respects”). 7 Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 4–5. 8 Pellet, above n. 4, at 778. 9 Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 101. 10 Pellet, above n. 4, at 774.

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to ensure implementation of the rule”.11 Treaties are, therefore, the first source the Court resorts to in interpreting and applying international law.12 When compared to treaties, customary norms are given a backseat alongside the general principles.13 Palchetti even considers that there is a hierarchy between customary international law and general principles.14 As general principles, customary international law is not derived from the express consent of the States, as treaty provisions are. Therefore, treaty provisions, when compared to general principles and custom, are “lex specialis and will enjoy priority as such”.15 As the Court also noted in Military and Paramilitary Activities, “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”.16 The Court could theoretically rely on all sources of international law at once, without giving any of the sources priority, because each of the three sources plays a different role in the Court’s reasoning. For example, before the adoption of the Vienna Convention on the Law of Treaties (vclt) in 1969, the Court interpreted treaty provisions by relying on (interpretative) general principles specific to treaty interpretation. These instances demonstrate that the Court relied on treaties (provisions that were being interpreted) and general principles (norms that aided the Court in interpreting the treaty provisions) at once. The treaty provision and the general principle performed a different task in the Court’s reasoning; in this instance, the treaty provided the substantive norm (regulating the conduct of Contracting Parties), while the general principle aided the Court in interpreting that specific substantive norm.

11 12

13 14 15 16

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶178 (27 June). See, e.g., Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 22 (8 Dec.) (noting that “[i]n ascertaining what the law is, the first source to be consulted is the ‘Convention establishing the Definitive Statute of the Danube’”). Pellet, above n. 4, at 773, 774, 776. Paparinskis, ‘Conclusions: General Principles and the Other Sources of International Law’, in Andenæs, Fitzmaurice, Tanzi and Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/Nijhoff, 2019), at 121, 122 (referring to Palchetti). Pellet, above n. 4, at 775. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶274 (27 June) (also noting, however, that the treaty requirement of exhaustion of domestic remedies did not need to be followed because there was also a violation of customary norm).

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Gaja argues that where a general principle affects the application of a treaty, the general principle ‘prevails’ over the treaty.17 However, his opinion leads to the potential conclusion that general principles apply instead of treaties. Such conclusion may be somewhat extreme as – although potentially altering the interpretation of the relevant treaty provisions – general principle does not substitute a treaty provision, but merely acts in tandem with it. The substantive conduct remains regulated by the treaty provision, as modified by a particular type of (i.e., substantive, procedural or interpretative) general principle. In other words, general principles do not deprive treaty provisions of their ­Article 38(1)(a) status. There is not much scholarship on the relationship between general principles and the other (two) sources of international law. Scholars have discussed the relationship between treaties and customary international law,18 rather than concerning themselves with the relationship of general principles to customary international law19 or even to treaty law.20 Those few who did consider the relationship between general principles and customary international law seem to be included in merging the two sources into customary international law while depriving the general principles of their independent nature as Article 38(1)(c) norms. Absent a definition of general principles, any potential comparisons of general principles with treaties and customary international law are bound to vary from scholar to scholar.

17 18 19

20

Gaja, ‘General Principles of Law’, Max Planck Encyclopedia of Public International Law (2013), at ¶22. Thirlway, above n. 9, at 129; Lesaffer, ‘Sources in the Modern Tradition: The Nature of Europe’s Classical Law of Nations’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 114. Mendelson, ‘The Formation of Customary International Law’, offprint from the Recueil des Cours de l'Académie de La Haye en ligne, Vol. 272 (Leiden: Brill/Nijhoff, 1998), at 195, footnote 79 (noting that “[t]he fascinating question of the relation between customary international law and ‘general principles of law recognized by civilized nations’ is beyond the scope of these lectures”). For exceptions see, e.g., Skomerska-Muchowska, ‘Some ­Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law’, Polish Y. Int’l L. (2017), at 266–269 (considering the interaction between general principles and custom); and Kleinlein, ‘Customary International Law and General Principles: Rethinking Their Relationship’, in Lepard (ed.), Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017), at 153. But see Voigt, ‘The Role of General Principles in International Law and their Relationship to Treaty Law’, 2 Retfærd Årgang 121 (2008).

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Chapter 5

General Principles as an Independent Source of International Law

General principles are a source the existence and validity of which in international law does not depend on the other two sources of international law listed in Article 38(1). Some scholars, however, seem to hold a different view, namely, that general principles cannot exist in international law without treaty provisions or customary international law.21 For example, Gaja notes that “[a] general principle of law may be embodied in a treaty provision or become part of international customary law”.22 Similarly, Herczegh and Schwarzenberger argue that the existence and validity of general principles in international law are based on treaties.23 Considering general principles dependent on treaties or customary international law would not only run counter to the text of Article 38(1), but would also invalidate the intentions of the Advisory Committee of Jurists (acj)24 and render Article 38(1)(c) entirely superflous.25 Thirlway supports such reasoning by stating that if general principles were not meant to be an independent source of international law they would not have been included in Article 38(1) in the first place.26 Pellet similarly recognises that although the relationship among the sources is ‘complex’,27 general principles are “distinct from the two others”.28 Gerald

21

Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 274 (referring to Kelsen); Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 84. 22 Gaja, above n. 17, at ¶24. 23 Herczegh, General Principles of Law and the International Legal Order (Budapest: Akadémiai Kiadó, 1969), at 45 (noting that “[g]eneral principles detached from international treaties and international customary law […] would establish obligations or rights of the states without their consent”); Schwarzenberger, ‘The Fundamental Principles of International Law’, offprint from the Recueil des Cours de l'Académie de La Haye en ligne Vol. 087 (Leiden: Brill/Nijhoff, 1955), at 207 (reasoning that “a particular treaty may be declaratory of an existing principle of international law and [… it may] transform such a principle into a directly applicable legal rule”). 24 Bassiouni, above n. 5, at 772. 25 Kleinlein, above n. 19, at 146; Pellet, above n. 4, at 767–768 (observing that if general principles were not distinct from the two others, “the general principles mentioned in Art. 38 would simply be customary rules of a general nature and would come within the realm of lit. (b)”). 26 Thirlway, above n. 9, at 102 (noting that “the fact that general principles are mentioned in a separate clause of Article 38 shows that this is not how they were envisioned”). 27 Pellet, above n. 4, at 773. 28 Ibid., at 767–768.

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Fitzmaurice, Kaufman Hevener, Mosher, Redgwell and Thirlway also favour the proposition that general principles are a source “independent of treaties and custom”29 and acknowledge that they “may alone provide the grounds for the Court’s reasoning”.30 General principles retain their independence also when ascertained as part of treaties or customary international law. For example, when the Court ascertains a general principle with an international underpinning by relying on a treaty provision, the norm obtains a separate existence as a general principle, while retaining its presence in the relevant treaty. The Court’s practice also favours this proposition. For example, the Court in Military and Paramilitary Activities observed that “[t]hese principles remained binding as such, although they were also enshrined in treaty law provisions”.31 In other words, general principles remain binding as an Article 38(1)(c) source also when derived from Article 38(1)(a) treaty provisions. The Court’s jurisprudence is not as clear when it comes to distinguishing general principles from norms of customary international law; the Court is predominately silent as to the relationship between custom and general principles. However, drawing a conclusion from such practice that general principles and customary international law do not differ would not only run counter to the intention of the Statute’s drafters to include a third – new – source of international law, but it also does not follow how general principles relate to treaties. Perhaps the relationship between custom and general principles could be analogised to custom’s relationship to treaties. As the Court in Military and Paramilitary Activities said, when treaty provisions and norms of customary international law “appear identical in content, and even if the States in question are bound by these rules [in both sources …] these norms retain a separate existence”.32 The same could also be true in relation to the norms of customary 29 30

31 32

Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 11. Kaufman Hevener and Mosher, ‘General Principles of Law and the UN Covenant on Civil and Political Rights’, 27 Int’l & Comp. L.Q. 3, 596 (1978), at 599; Gerald Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today’, First Part of an Abstract of a Special Report, Institute of International Law (Rome, 1973), at 993–994 (noting that general principles may be material in decisions of international tribunals). See also Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice: Volume 2 (Cambridge: Cambridge University Press, 1986), at 625; Thirlway, above n. 9, at 94. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶43 (27 June). Ibid., at ¶178. See also ibid., at ¶179.

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international law and general principles, namely, that regardless of their prima facie overlapping in content or in name, they retain their independent existence with their respective sources. The Court’s pronouncement in Military and Paramilitary Activities that the norms retain their existence in their respective sources regardless of a potential overlap enabled the Court to apply customary norms where the United States instituted reservations to treaty provisions and “[wa]s in no way bound to uphold these rules only in so far as they differ from the treaty rules which it is prevented by the United States reservation from applying in the present dispute”.33 The same could be true with the potential overlapping of general principles and treaties, namely, that a general principle providing for the same (or similar) norm as that embodied in a treaty would apply also when the treaty did not form part of the applicable law. However, in relation to the practical consequences of the norm being recognised both as a general principle and a norm of customary international law, that is not yet as clear. Among the sources of international law, general principles depend least on the States’ express will and direct participation in the norm’s creation and emergence. The Court does not rely on States’ identification or on their interpretation of general principles. The term ‘recognized’ in Article 38(1)(c) suggests that general principles are meant to be only passively recognised by States, especially when compared to their more active participation in forming norms of customary international law and their express consent in adopting treaties. Another difference between general principles on the one hand and treaties and customary international law on the other relates to the entity in charge of ascertaining their content. In relation to treaties and customary international law, States play a predominant role in determining treaty provisions and (actively) participate in giving rise to norms of customary international law. However, as far as general principles are concerned, it is the Court that ascertains them, with little to no input is being sought from the States. This is also in line with the drafters’ intention for general principles to serve as the Court’s tool in rendering decisions based on international law. Scholars acknowledge that, unlike treaties and customary international law, general principles are endowed with a certain flexibility that allows the Court to continually evolve, diversify and develop international law.34 In this sense, 33 34

Ibid., ¶179. See Paparinskis, above n. 14, at 128; d’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena

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general principles complement the rigidity and perceived limitations of the other two (more consensual) sources of international law.35 General principles’ flexibility is not unlimited, however. Rather, general principles act against the possible “biased arbitrariness of the judge”36 and limit the Court’s creativity only to norms that are, or potentially could be, accepted and recognised by the international community – instead of allowing the judges to fill the gaps in international law with their unfettered judicial discretion. 5.1.1 General Principles and Treaties The Court often refers to general principles that are also part of certain treaties, including the United Nations Charter and its Statute,37 by noting that they are ‘embodied’ or ‘enshrined’ in treaties. For example, the Court referred to “a well-established principle of international law embodied in the Court’s statute”38 in Monetary Gold Removed from Rome, and to “the accepted judicial principle enshrined in Article 36, paragraph 6, of the Court’s Statute” in the Fisheries Jurisdiction case.39 The Court also referred to general principles

35

36 37 38 39

(eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 173 (noting that “[t]he expansions achieved through general principles is sometimes not less substantial than that realized through customary international law”); Bassiouni, above n. 5, at 769; Skomerska-Muchowska, above n. 19, at 259 (arguing that general principles “allow[] international courts to make decisions that are not only consistent with the existing legal order”). Cf. Besson and d’Aspremont, ‘The Sources of International Law: An Introduction’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 13. Herczegh, above n. 23, at 118 (noting that “the application of the general principles of law by way of analogy may to some extent relax the rigidity of international law urged ad nauseam [to nausea], and turn it into a system lending itself more readily for the settlement of complicated legal cases”); Berry, Caribbean Integration Law (Oxford: Oxford ­University Press, 2014), at 175–177 (referring to the variety of “uses” of general principles of law). Herczegh, above n. 23, at 100. Yotova, above n. 21, at 300, 301, 308. Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19, at 32 (15 June) (emphasis added). Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶45 (2 Feb.) (emphasis added). The Court in Fisheries Jurisdiction also referred to “the generally recognized principles embodied in Article 2 of the [Geneva Convention] on the High Seas”. Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶54 (25 July) (emphasis added). See also Bassiouni, above n. 5, at 801 (noting that “‘General Principles’ are also embodied in customary law”; emphasis added).

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that were ‘stipulated’,40 ‘laid down’41 or ‘accepted and applied’42 by a treaty. As the Court’s practice confirms, despite being based on or incorporated in treaty provisions, general principles obtain (or retain) an existence independent of the treaty provisions. For example, the Court in the Review of Judgment No. 158 advisory opinion referred to the general principle that each Party bears its cost of the contentious proceedings before an international tribunal. This general principle is also enshrined in Article 64 of the Court’s Statute. However, the Court in Review of Judgment No. 158 referred to Article 64 only as a ­comparison (using the shorthand ‘cf’)43 and not as the basis of the general principle. Despite being also embodied in Article 64, this general principle exists independently of the Court’s Statute. Treaty provisions that provide the basis for the Court’s ascertainment of a general principle usually do not contain within themselves the word ‘principle’. The word ‘principle’ usually points to the existence of a general principle, rather than restating the treaty text (that may, or may not, refer to a ‘principle’). For example, the Court in Status of Eastern Carelia ascertained the general principle of the independence of States by relying on Article 17 of the Covenant of the League of Nations.44 However, Article 17 does not refer to a ‘principle’ of independence.45 40

See, e.g., Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 17 (6 Apr.) (noting that “Article 4 stipulates […] equality before the law”). 41 See, e.g., Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 81 (12 Dec.) (referring to “the general principle of freedom which was laid down at Berlin”); Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.) (referring to “the principle […] laid down in many conventions”). 42 See Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5, at 27 (23 July) (noting that “[t]his rule [Article 17 of the Covenant of the League of Nations] only accepts and applies a principle which is a fundamental principle of international law, namely, the principle of the independence of States”; emphasis added). See also Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), at 268 (noting that Article 41 of the Court’s Statute “was but an application of the ‘principle universally accepted by international tribunals’”; emphasis added). 43 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶98 (12 July) (referring to it as “the basic principle regarding the question of costs in contentious proceedings before international tribunals”). 44 Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5, at 27 (23 July). The general principle of State independence is classified jointly with the general principles of State sovereignty and territorial integrity under Digest number 13. 45 Covenant of the League of Nations, 28 Apr. 1919, art. 17.

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The Court confirmed that treaties codify general principles even if they do not expressly refer to them as ‘principles’. For example, in German Interests in Upper Silesia, the Court found that although “the principle that in the event of a change of sovereignty, private rights must be respected”46 was not expressly mentioned in the Treaty of Versailles, it was “clearly recognized by the Treaty”.47 States may also draft an already-existent general principle into the text of a treaty. For example, the Court in the Rights of American Nationals in Morocco case considered the 1906 Act of Algeciras, which refers to ‘principles’ of sovereignty and independence, integrity of domains and economic equality,48 i.e., general principles already ascertained in the Court’s jurisprudence. However, the States’ inclusion of the word ‘principle’ in the treaty text does not yet give rise to a general principle (that is embodied in a treaty), until the Court recognises it as such. Thus, the difference between the Court recognising a general principle as embodied in a treaty and a norm termed a ‘principle’ by States in their treaty negotiations is that the former exists without the treaty, while the latter is merely a treaty provision and its applicability depends on the validity and duration of the treaty. General principles’ incorporation into a treaty may aid the international community’s understanding that general principles are binding and warrant compliance.49 On the downside, however, considering that general principles are inextricably tied to the treaty provisions precludes the possibility of general principles’ evolution. Intentionally incorporating general principles into treaty provisions subordinates them to the States’ interpretation of the provision that codifies them.

46

Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 31 (25 May). 47 Ibid. 48 General Act of Algeciras, 7 Apr. 1906, 34 Stat. 2905, at 465. See also Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176, at 207, 208 (27 Aug.) (also noting that “the principle of economic equality […] is one of the principles underlying the [1906] Act”). 49 Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] i.c.j., at ¶92 (6 June) (noting that the Palermo Convention provides that “‘State Parties shall carry out their obligations under [the Palermo] Convention in a manner consistent with the principles’ to which it refers”; emphasis added, quoting article 4(1) of the Palermo Convention). See United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 15 Nov. 2000 (Palermo Convention), art. 4(1). See also Thirlway, above n. 9, at 101 (noting that “Article 60 of the Convention preserves and enacts the essence of the principle”).

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A consequence of general principles’ embodiment in a treaty is that by breaching a treaty provision, States also breach the general principle. Herczegh similarly suggests that one infringing a principle of law is guilty of an offence more serious than one committed by breaking a particular provision, [because] the conduct of the former simultaneously contravening a large number of provisions of law at the time.50 Herczegh’s view is based on the premise that general principles are more fundamental, general and abstract as compared to treaty provisions, and that, therefore, by breaching one general principle a State breaches multiple lex specialis treaty provisions based on the general principle. However, the position taken here is that general principles could be as general or specific as any other treaty or customary ‘rules’ and ‘principles’. Therefore, a violation of a general principle incorporated in a treaty does not necessarily correspond to the violation of multiple treaty provisions, but only to those whose content matches the general principle breached. General principles are binding in their own right, whether or not they are embodied in a treaty. As the Court said in the Reservations to the Genocide Convention advisory opinion (and reaffirmed in the 2006 Armed Activities decision) general principles that underlie a treaty are “binding on States, even without any conventional obligation”.51 Similarly, the Court in Chorzów Factory confirmed that the general principle of reparation requires compensation for a treaty breach, “‘and [that] there is no necessity for this to be stated in the convention itself’”.52 Along the same lines, the Court in Nottebohm stated that although a general principle of kompetenz-kompetenz had been incorporated into its Statute, it is a “rule of general international law”,53 meaning that kompetenz-kompetenz 50 51

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53

Herczegh, above n. 23, at 36. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May). See also Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6, at ¶64 (3 Feb. 3); Yotova, above n. 21, at 299. Factory at Chorzów (Indemnities), Germany’s Request for Interim Protection [1927] p.c.i.j. (ser.A) No. 12, at 4 (14 Oct.), quoting Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 21 (26 July). The general principle of (the right to) reparation and/ or compensation is classified under Digest number 41. Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 120 (18 Nov.).

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e­ xists as a norm of international law independently of the Court’s Statute.54 The Court found that [t]he judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.55 Similarly, in its Military and Paramilitary Activities decision, the Court stated that [t]he fact that the abovementioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions.56 However, in Military and Paramilitary Activities the Court seemed to state that general principles exist independently of treaty provisions, but not necessarily also independently of customary international law. 5.1.2 General Principles and Customary International Law General principles and customary international law have much in common. Both are unwritten sources of international law,57 expressed in writing in the Court’s jurisprudence. Article 38(1) uses the term ‘general’ in describing both customary international law and general principles.58 Thus, scholars consider both general principles and customary international law to be more ‘general’ than treaty provisions. Akehurst points out, however, that Article 38(1)(c) does not prevent the Court from applying bilateral general principles,59 as the Court in its jurisprudence was not precluded from ascertaining a bilateral (or local) 54 The general principle of kompetenz-kompetenz is classified under Digest number 94. 55 Ibid. 56 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶73 (26 Nov.). See also Rosemary Abi-Saab, ‘The “General Principles” of humanitarian law according to the International Court of Justice’, 27 Int’l Rev. Red Cross 259, 367 (1987), at 369. 57 Yotova, above n. 21, at 276; Kleinlein, above n. 19, at 139. 58 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1). 59 Akehurst, ‘Equity and General Principles of Law’, 25 Int’l & Comp. L.Q. 4, 801 (1976), at 825 (suggesting that if the Court cannot find a universally accepted general principle “it should instead apply a principle which is common to the parties”).

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customary norm.60 General principles and norms of customary international law are also both applicable to the entire international community61 and to a variety of circumstances.62 The existence of both general principles and customary international law is not premised on express State consent for their existence.63 However, while State consent and participation in the emergence of norms of customary international law are not as explicit as when States adopt a treaty,64 they are not required at all in the Court’s ascertainment of general principles. Kleinlein observes that both general principles and customary international law require for their existence “‘concrete practice of sorts’”.65 Similarly, Malgosia Fitzmaurice supports the proposition that the identification of general principles does not hinge on State practice. She writes that “the principle of non-intervention is derived from opinio juris without State practice”.66 However, her view seems to bind custom and general principles under the requirement of opinio juris. Is the opinio juris for custom and general principles the same? The position taken in this book is that while opinio juris and ‘practice’ in relation to customary international law is a reference to States’ opinion and practice, any requirement of opinio juris and ‘practice’ related to general principles is linked to the Court’s opinion and to its judicial practice. 60

Right of Passage over Indian Territory (Port. v. India), Merits [1960] i.c.j. 6, at 39 (12 Apr.) (noting that “[it] sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States”). 61 Cf. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶92 (24 May) (using the expression “the entire international community”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶¶62, 67 (8 July) (using the expression “international community”); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶157 (9 July) (noting that “a great many rules of humanitarian law applicable in armed conflict are so fundamental [… that] are to be observed by all States”; emphasis added). 62 Rosemary Abi-Saab, above n. 56, at 375 (noting that “fundamental general principles of humanitarian law belong to the body of general international law, in other words, that they apply in all circumstances, for the better protection of the victims”). 63 Pellet, above n. 4, at 782 (noting that custom does “not flow from the will of States either”); Elias and Lim, above n. 7, at 20. 64 Cf. Elias and Lim, above n. 7, at 18 (not distinguishing the level of consent between treaties and customary international law). 65 Kleinlein, above n. 19, at 138 (quoting the International Law Association Committee on the Formation of Customary International Law). 66 Malgosia Fitzmaurice, ‘Customary Law, General Principles, Unilateral Acts’, in Sobenes Obregon and Samson (eds), Nicaragua Before the International Court of Justice: Impacts on International Law (Cham: Springer, 2018), at 252.

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In ascertaining norms of customary international law, the Court is (at least theoretically) required to rely on States’ opinio juris. However, as SkomerskaMuchowska notes, “in contrast to customary law, the requirement of State practice does not apply to general principles of law”.67 The Court does not consider States’ opinio juris when ascertaining general principles – general principles are instead ascertained using the Court’s rather than the States’ opinio juris. Bassiouni argues that insufficient State practice points to the existence of a general principle.68 Elias and Lim disagree with Bassiouni’s proposition and note that when a norm does not meet the criteria of customary international law (due to sufficient State practice and opinio juris), “it would seem unlikely that it is a principle that would command acceptance under a different heading”.69 Elias’ and Lim’s view, however, does not seem to consider the intention behind the inclusion of the general principles into the Court’s Statute, namely, to provide the Court with a set of international norms when no treaty or norm of customary international law is available. Scholars, with some rare exceptions, do not differentiate between a norm’s existence in customary international law and as a general principle70 once the norm had been identified (also) as part of customary international law. According to Kleinlein, “many scholars cannot see additional value in distinguishing customary international law and general principles as two sources of international law”,71 while Herczegh argues that “it is impossible to segregate customary law from the principles, or general principles of law”.72 Those who try to differentiate between general principles and custom note that the dividing line is not clear.73 Bassiouni suggests that in the Court’s ­jurisprudence some general principles are more easily distinguishable from custom than others.74 Lepard makes a simple (but not entirely correct) distinction in differentiating between the two, namely, that general principles are 67 68 69 70 71 72 73

74

Skomerska-Muchowska, above n. 19, at 268. Bassiouni, above n. 5, at 791 (referring to Lammers), 801 (noting that “unperfected custom and opinio juris not followed by practice may evidence a given ‘principle’). Elias and Lim, above n. 7, at 36. Yotova, above n. 21, at 276. Kleinlein, above n. 19, at 144–145. Herczegh, above n. 23, at 46. Yotova, above n. 21, at 309; Kleinlein, above n. 19, at 131, 132. But see Kleinlein, above n. 19, at 139, 158 (concluding that “[d]rawing a ‘demarcation line’ between customary international law and general principles is not difficult on the basis of narrow concepts of both sources”). Bassiouni, above n. 5, at 791.

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i­dentified in d­ omestic law, while customary norms arise predominately as a consequence of international relations.75 There are also those who consider Article 38(1)(c) superflous and entirely covered by norms of customary international law. In this respect, Lepard reminds us that Phillimore, a member of the Advisory Committee of Jurists (acj), “believed that general principles of law came within the scope of customary law”.76 Thirlway similarly argues that when the Court identifies a general principle as part of customary international law, the general principle ceases to exist as a ‘general principle’ and merges into customary international law.77 Thirlway seems to imply that general principles ‘graduate’ into customary international law, and when that occurs general principles lose their qualities as general principles. Along the same lines, Petersen seems to argue that all substantive general principles are in fact norms of customary international law.78 Peterson’s assertion is flawed – if correct to begin with – because it excludes from its consideration procedural and interpretative general principles, which – following his reasoning – have an independent existence when identified as part of customary international law. Bassiouni proposes a theory slightly different from Petersen’s. He reasons that those general principles with an international underpinning (ascertained on the basis of treaties, customary international law and other international instruments) may be of equal standing to customary international law and treaties because they are closer to the will of the States.79 However, Bassiouni seems to deprive the general principles of a domestic and judicial underpinning and of their status as an source independent of and equal to treaties and customary international law. The perceived “methodological uncertainty”80 in differentiating between general principles with an international (customary) underpinning and norms of customary international law leads scholars in most instances to consider the general principles with an international underpinning solely as customary ­international law norms.81 Or, as Akehurst explains, when a general principle 75 Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), at 164. 76 Ibid., at 163. 77 Thirlway, above n. 9, at 96. 78 Kleinlein, above n. 19, at 147 (referring to Petersen). 79 Bassiouni, above n. 5, at 801 (noting that treaties and custom are “more objectively ascertainable reflection of the will of the States”). 80 Kleinlein, above n. 19, at 139. 81 Lepard, above n. 75, at 166; Herczegh, above n. 23, at 46 (noting that the difficulty in differentiating between general principles and custom is the “reason [that] when a general

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“is incorporated in a rule derived from some other source of international law, such as custom [… the Court] is really applying a rule of customary law”, and not a general principle.82 In contrast, Elias and Lim argue that there is a distinction between general principles with an international underpinning and ­customary international law, which, according to them, lies in the general principles’ historical origins as “‘basic assumptions’ of the international system”.83 It is true that general principles ascertained in customary international law (which form part of the category of general principles with an international underpinning) are those which are most difficult to distinguish from norms of customary international law. The norm’s content, name and application in such instances is identical in both sources – as a general principle and as a customary international law norm. However, because the norm exists in two sources, its ­evolution in each source depends on different factors, namely, customary international law evolves (at least theoretically) with State practice and their opinio juris, while general principles’ evolution depends on the Court’s jurisprudence. In other words, when the same norm forms part of both Article 38(1)(b) and (1)(c), it will develop differently depending on whether or not there is State practice that ­warrants its evolution or whether the Court decides to ‘upgrade’ a particular general principle in its jurisprudence. Over time, a norm that inhabits both sources of international law may change its content in line with the requirements of each source and differentiate itself from the other source’s ‘counterpart’ norm. As is the case in general principles’ relationship to treaties, norms ascertained as general principles may also form part of customary international law (or vice versa as is the case with the general principles with an international (customary) underpinning) while retaining their independent existence as part of Article 38(1)(c) of the Court’s Statute. However, the diverging consequences of having the same norm present in these two sources are not as straightforward. One of the consequences of the same norm belonging to ­Article 38(1)(b) and (1)(c) is that a State which has persistently objected to the emergence of the customary norm cannot opt out of the general principle with the same content. Such scenario – when a State is not bound by the customary norm but is bound by the same norm in the form of a general principle – is very unlikely, but not impossible.

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principle of international law is applied in most of the cases recourse is had to international customary law”). Akehurst, above n. 59, at 801. Elias and Lim, above n. 7, at 29.

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Yotova classifies scholarly views on the interaction between general principles and customary international law into three categories, namely, those who consider that general principles and customary international law overlap (first category), those who believe that general principles represent only a transitory phase towards the norm’s evolution into customary international law (second category), and “those who ­conceptualise general principles as an inchoate custom that does not require support by state practice”84 – or, in other words – those who believe that general principles are independent of custom (third category). Yotova’s first category encompasses the views expressed by Bassiouni, Lepard and Mendelson. Bassiouni, for example, notes that “customs, when consistently practiced, become ‘principles’”.85 Lepard agrees that general principles may originate in “in some kind of custom”,86 while Mendelson suggests that “there must be a significant overlap between general principles of internatio­ nal law and rules of international customary law”.87 Pellet’s view corresponds to Yotova’s second category. He notes that the “repeated use [of general principles] at the international level transforms them into custom”.88 Pellet refers to Waldock, who argued that general principles with a domestic underpinning transform into customary international law.89 Does this view lead to the conclusion that general principles over time morph into a treaty provision by relinquishing their existence as general principles? Applying this view to the relationship between treaties and customary international law does not yield the same results – a treaty provision, although repeatedly referred to by the Court as a norm of customary international law, does not lose its treaty status. Why would, then, this dynamic apply to general principles and their relationship to custom? As a treaty provision cannot lose its Article 38(1)(a) nature when considered to be (also) custom, general principles also retain their Article 38(1)(c) status when repeatedly referred to as norms of customary international law. Thirlway’s view that general principles and norms of customary international law are inherently separate falls squarely within Yotova’s third category. He writes that “[i]f this principle does indeed rank as a general principle, it does not seem that it might also be part of customary law”.90 Thirlway does, 84 Yotova, above n. 21, at 276. 85 Bassiouni, above n. 5, at 801. 86 Lepard, above n. 75, at 166 (referring to Wolfke). 87 Mendelson, above n. 19, at 370 (emphasis in original). 88 Pellet, above n. 4, at 782. 89 Ibid. 90 Thirlway, above n. 9, at 102 (emphasis in the original).

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however, acknowledge that custom “contains established principles” and that many other general principles “find expression in customary law”.91 Pellet also implies that general principles and custom are separate (as long as the general principle is not repeatedly used by the Court) by noting that in the absence of any treaty provision the Court must find either a customary norm or a general principle.92 Some scholars opine that the recognition of general principles as ‘rules’ automatically leads to them being transformed into rules of customary international law.93 However, the Court explicitly referred to “the principles and rules of customary international law”,94 which confirms that customary international law is comprised of the modality of both ‘principles’ and ‘rules’. The Court’s statement demonstrates that customary international law is not composed just of ‘rules’, and leads to the finding that general principles may become (also) norms of customary international law in either of the modalities – whether as ‘rules’ or ‘principles’. However, such reasoning implies that general principles and custom overlap in their entirety – a conclusion which is at odds with the text of Article 38 and the acj’s intention to provide the Court with three sources of international law. The Court’s jurisprudence on this point may be somewhat confusing. For example, the Court in Military and Paramilitary Activities referred to the “principles of customary and general international law”.95 This statement is unclear, as both ‘principles of customary international law’ and ‘principles of general international law’ refer to general international law. ‘Principles of customary ­international law’ may also refer to the modality of ‘principles’ as part of customary international law, or simply to general principles with an international (customary) underpinning that are reflected in customary international law. ‘Principles of general international law’ may additionally refer the modality of ‘principles’ both in customary international law and as general principles, or even to both modalities (i.e., ‘rules’ and ‘principles’) of general principles. For greater clarity, the Court in Military and Paramilitary Activities decision could have substituted the reference to ‘principles of customary and general international law’ with that of ‘principles of customary international law and general principles’, or even by simply referring to ‘general international law’. 91 92 93 94 95

Ibid., at 94, 96. Pellet, above n. 4, at 789. See, e.g., Kleinlein, above n. 19, at 147 (referring to Petersen). Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] i.c.j. 38, at ¶71 (14 June) (emphasis added). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶73 (26 Nov.) (emphasis added).

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The above reference to ‘principles of customary international law’ is to be distinguished from the references to ‘principles of international law’, which stands for international law and does not refer to any particular source within international law. For example, the Court in Fisheries Jurisdiction most likely meant to refer to ‘international law’, by noting that “[t]he Geneva Convention on the High Seas of 1958 […] was adopted ‘as generally declaratory of established principles of international law’”.96 General principles and customary international law jointly form the socalled ‘general international law’.97 The Court noted that States have international obligations under general international law98 (as they do under general principles and custom); however, Lepard rightly observes that the Court “­frequently refers ambiguously to one or both sources simply as ‘general international law’, which is contrasted with treaty law”.99 Regardless, general principles do play a role in the Court’s ascertainment of ‘general international law’. For example, the Court in 2005 Armed Activities on the Territory of the Congo referred to diplomatic protection and to the requirement of the exhaustion of domestic remedies – both ascertained in the Court’s jurisprudence as general principles100 – “as recognized in general international law”.101 Scholars seem to be supportive of the proposition that general principles form part of general international law. Skomerska-Muchowska, for example, writes that “international courts recognise general principles as part of general international law”.102 Similarly, Rosemary Abi-Saab considers that the “fundamental general principles of humanitarian law belong to the body of general 96 97

Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶50 (25 July). Besides general principles and norms of customary international law, general international law may also encompass provisions of so-called ‘international law-making’ treaties. Tunkin, for example, argues that “provisions of a treaty may become binding upon nonparticipating States through a customary process”. Tunkin, ‘Is General International Law Customary Law Only?’, 4 Eur. J. Int’l L. 4, 534 (1993), at 539. Herczegh only implies that some “multilateral, sometimes almost quasi-universal, agreements [treaties] are gathering weight [in international law]”. Herczegh, above n. 23, at 46. 98 Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665, at ¶229 (16 Dec.) (holding) (finding that “Costa Rica has violated its obligation under general international law”). 99 Lepard, above n. 75, at 163. See also Rosemary Abi-Saab, above n. 56, at 373; SkomerskaMuchowska, above n. 19, at 267. 100 See, e.g., Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, 12 (30 Aug.); Prince von Pless Administration, Order [1933] p.c.i.j. (ser.A/B) No. 52, at 16 (4 Feb.). 101 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168, at ¶333 (19 Dec.) (emphasis added). 102 Skomerska-Muchowska, above n. 19, at 272.

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international law”.103 Perhaps Gaja too, by noting that the Court’s jurisprudence “included in general international law norms that could not be defined as part of customary law”,104 refers to general principles. Instead of referring to ‘general international law’, Lepard refers to ‘recognised rules of international law’ which, according to him, encompass both customary international law and general principles.105 Mendelson disagrees. According to him, ‘general international law’ encompasses solely customary international law, because Article 38(1)(b) refers to ‘general practice’.106 However, Article 38(1)(c), also refers to ‘general principles’. While not mentioning the word ‘practice’ (also absent from the expression ‘general international law’), general principles seem to allude to the ‘generality’ of general international law as much as customary international law does. General international law is an international legal ‘space’ where customary international law and general principles coexist. Both custom and general principles contain the modalities of ‘principles’ and ‘rules’. Consequently, general international law is also comprised of ‘rules’ and ‘principles’. General international law and treaty law (inclusive of the Court’s Statute) form the totality of ‘international law’. For example, the Court in the United States Diplomatic and Consular Staff in Tehran case found that Iran had violated three treaties and “obligations under general international law”.107 Similarly, the Court’s abstract in the Nottebohm case notes its “competen[ce] to adjudicate upon challenge to its jurisdiction in accordance with general international law and by virtue of Article 36 (6) of Statute”.108 Other not as straightforward examples of the co-existence of general international law and treaty law include the Court’s pronouncement in Legality of the Threat or Use of Nuclear Weapons, where the Court considered ‘conventions’ and ‘intransgressible principles of international customary law’ side by side.109 The latter presumably referred to ‘general international law’. Similarly, the Court in Gabčíkovo-Nagymaros Project said that States must “find an agreed 103 104 105 106 107

Rosemary Abi-Saab, above n. 56, at 375. Gaja, above n. 17, at ¶32. Lepard, above n. 75, at 163. Mendelson, above n. 19, at 193–194. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶62 (24 May). 108 Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 111 (abstract) (18 Nov.) (emphasis added). 109 The Court said that “fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶79 (8 July). See also Legal ­Consequences

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solution that takes account of […] the norms of international environmental law and the principles of the law of international watercourses”,110 in addition to taking into account the objectives of the relevant treaty. ‘Norms of international environmental law’ and ‘principles of law of international watercourse’ belong to general international law, which the Court considered alongside the relevant treaty. In Kasikili/Sedudu Island the Court considered “the 1890 Treaty and […] the rules and principles of international law”.111 The expression ‘rules and principles of international law’ refers to international law in general, namely, to the ‘rules’ and ‘principles’ of general international law and treaty law. Parties’ submission to the Court also refer to treaties on the one hand, and general international law on the other. As an example, the Court noted in Gabčíkovo-Nagymaros Project that “Hungary’s argument […] was based on other treaties and general rules of international law”.112 Like general principles and norms of customary international law, their sum – general international law – is binding regardless of whether or not it is confirmed in a treaty. For example, the Court in the North Sea Continental Shelf case noted that unclos iii referred to “principles or rules of general maritime law”,113 ‘principles and rules of general maritime law’ most likely referring to ‘general international (maritime) law’. The Court observed that unclos iii referred to ‘general maritime law’ not to confirm its existence or ‘bindingness’ in international law, but rather “to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention”.114 The Court in Military and Paramilitary Activities referred to general principles as a source independent of treaty and customary international law, when noting that certain general principles “continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated”.115 What the Court might have meant by this statement is that general principles remain binding as part of of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶157 (9 July); Pellet, above n. 4, at 726. 110 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶141 (25 Sept.). 111 Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶17 (13 Dec.) (emphases added). 112 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶106 (25 Sept.). 113 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶65 (20 Feb.). 114 Ibid. 115 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶73 (26 Nov.).

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general international law, rather than as part of customary international law. Or perhaps the Court in Military and Paramilitary Activities reasoned that States would be more willing to comply with the general principles and find its pronouncement binding if the Court would refer to them as to rules of customary international law. 5.1.3 Trend: Customary International Law Instead of General Principles? In more recent jurisprudence, the Court began referring to norms that it initially identified as general principles as to norms of customary international law. For example, in its 2015 Application of the Genocide Convention, the Court reinterpreted its 1951 Reservations to the Genocide Convention advisory opinion and retroactively replaced the 1951 reference to general principles with a reference to customary international law. The Court’s 1951 advisory opinion clearly referred to general principles and not to customary international law, by noting that “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations”.116 In 2015, however, the Court revisited its 1951 pronouncement and stated that “[t]he Court has also repeatedly stated that the [Genocide] Convention embodies principles that are part of customary international law”.117 In other words, the Court reinterpreted the reference to ‘principles which are recognized by civilized nations’ as to ‘principles of customary international law’. However, its retroactive substitution of the reference to general principles with norms of customary international law led the Court to the same result – r­ elying on general international law. While the 1951 advisory opinion implies that general principles form part of general international law, the 2015 case demonstrates that the Court considers customary norms to be the main (if not the only) representative of general ­international law. General principles that underlie the Genocide Convention may have also become customary international law, while retaining their existence in Article 38(1)(c) of the Court’s Statute. The Court’s practice, however, suggests that the Court often lists only treaties and customary international law without referring to general principles.118

116 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May) (emphases added). 117 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶87 (3 Feb.). 118 Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] i.c.j. 38, at ¶44 (14 June) (examining “the effect of Article 6 of the 1958

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In an exceptional case, the Court’s Chamber even expressly referred to Article 38(1)(d), alongside treaties (Article 38(1)(a)) and custom (Article 38(1)(b)), but omitted to consider Article 38(1)(c) – general principles – as a source of international law.119 The Court regularly omits the reference to general principles when considering the rules of treaty interpretation. For example, the Court in the 1994 Territorial Dispute referred to Article 31 vclt as a rule of customary international law, without acknowledging its previous jurisprudence that referred to the ­Article 31 norm – which was also developed based on the Court’s general ­principles – as a general principle.120 The Court adopted the same approach in Gabčíkovo-Nagymaros Project,121 LaGrand,122 and in Sovereignty over Pulau Ligitan and Pulau Sipadan.123 The Court in the Wall advisory opinion also referred to the general principle of reparation as a rule of customary international law, although the Court had originally ascertained reparation to be a general principle. The Court in Wall said that [it] would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms: ‘The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals’.124

119

120 121 122 123 124

­ onvention […] and then the effect of the customary law which governs the fishery zone”; C not referring to general principles). Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶83 (12 Oct.) (noting that “reference will be made to conventions (Art. 38, para.1 (a)) and international custom (para. 1 (b), to the definition of which the judicial decisions (para. 1 (d)) either of the Court or of arbitration tribunals have already made a substantial contribution”). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶41 (3 Feb.) (“recall[ing] that, in accordance with customary international law, reflected in Article 31 […]”; emphasis added). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶46 (25 Sept.). LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466, at ¶99 (27 June). Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] i.c.j. 625, at ¶37 (17 Dec.) (considering both Arts 31 and 32 as reflecting customary international law). In this decision, the Court did not even cite its pre-vclt jurisprudence. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶152 (9 July) (emphases added).

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The pcij in its 1928 Factory at Chorzów identified the general principle of reparation without mentioning its customary counterpart.125 Although the pcij’s reference to ‘principle’ can also be considered as being a reference to the modality of ‘principles’ in customary international law, the Court did not at any point in its Factory at Chorzów decision refer to reparation as to a customary norm of customary international law. The only exception when the Court expressly rejected the possibility of a norm being customary international law and instead declared it a general principle was in the Immunities and Criminal Proceedings decision. The Court noted that Article 4 [of the Palermo Convention] does not refer to the customary international rules, including State immunity, that derive from sovereign equality, but to the principle of sovereign equality itself. Article 4 refers only to general principles of international law.126 Scholarly preference for customary international law over general principles follows in the Court’s footsteps (or, perhaps, it is vice versa). For example, Thirlway refers to a study which allegedly evidences that the Court in the Corfu Channel case meant to refer to customary international law when ascertaining general ­principles.127 Thirlway reasons that “it is more profitable to look in the field of customary law [than relying on general principles]”.128 Thirlway’s reasoning does not explain the trend of retroactively substituting the reference to general principles with customary international law. A more valid explanation of such Court’s practice is that both scholars and the Court place more faith in the ability of customary norms to induce State compliance. It is in this sense that the reference to customary international law becomes

125 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 47 (13 Sept.) (noting that “[t]he essential principle contained in the actual notion of an illegal act […] is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”). 126 Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] i.c.j., at ¶93 (6 June) (emphasis added). 127 Thirlway, above n. 9, at 102. 128 Ibid., at 104.

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more ‘profitable’ in creating a sense of authority and ‘ruleness’ that (ideally) generates States’ compliance.129 Whatever the true reasons behind the Court’s practice of substituting its past express references to general principles with customary international law, the Court’s retroactive ‘findings’ do not extinguish the general principles that had been ascertained in its precedents. General principles remain an independent source of international law in their own right and could – over time, and with a change of mindset – provide an equally solid basis in the Court’s reasoning, as treaty law and custom currently do. 5.2

General Principles Supplement Other Sources of International Law

Sources of international law supplement each other. General principles provide the basis for customary international law and treaties, and vice versa, custom and treaties may provide the basis for the emergence or evolution of ­general principles with an international underpinning. Scholars generally lend their support to both propositions. For example, Cheng notes that “‘principles furnish the juridical basis of treaties and customs and govern their interpretation and application’”.130 Skomerska-Muchowska agrees that “in some cases the concept of a general principle may be a gate for the creation of customary law”.131 Pellet argues that when general principles provide the basis for treaty provisions and norms of customary international law, general principles attribute to them the quality of a ‘fundamental’ norm. He writes that there is no doubt that, when eclipsed by a customary or treaty norm flowing from them, they [general principles] explain the particular strength of the said norm, which will be described as ‘basic’ or ‘fundamental’ or ‘essential’.132

129 Cf. Lepard, above n. 75, at 166 (considering that States decide whether “to recognize the principle as an authoritative legal principle”). 130 Herczegh, above n. 23, at 69 (quoting Cheng). 131 Skomerska-Muchowska, above n. 19, at 267. See also Kwiecień, ‘General Principles of Law: The Gentle Guardians of Systemic Integration of International Law’, Polish Y. Int’l L. (2017), at 239 (noting that general principles inspire the creation of custom and treaty provisions). 132 Pellet, above n. 4, at 783.

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There are also those who support the view that treaties and customary international law provide a basis for the emergence of general principles,133 although, if accepted, such considerations are prone to generating confusion among the scholars in the future.134 The Court’s practice demonstrates that both possibilities, namely, that treaties and customary norms, support the existence of general principles and vice versa, and that general principles provide a basis for treaty law and norms of customary international law. The Court, for example, in the Certain German Interests in Polish Upper Silesia case, supported the latter view by noting that the general principle of respect for vested rights “constitutes the basis of the Geneva Convention”.135 Similarly, the Court by relying on the procedural general principle of non ultra petita in the Interpretation of the Judgment in the Asylum Case supplemented Article 60 of its Statute. Article 60 provides that “[t]he judgment is final and without appeal. In the event of dispute as to the meaning and scope of the judgment, the Court shall construe it upon the request of any party”.136 The general principle of non ultra petita interprets the expression ‘request of any party’ as “that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions”.137 However, the Court does not supplement treaties every time a general principle is available. For example, the Court in Mavrommatis Jerusalem Concessions noted that there was no need to supplement Protocol xii of the Lausanne Treaty with the “certain principles taken from general international law” because Protocol xii was complete in itself.138 133 Herczegh, above n. 23, at 43–44 (also referring to Tunkin); Bassiouni, above n. 5, at 772 (arguing that only certain general principles of law, namely, the general principles of international law, “emerge from the customary practice of States or from treaties”). 134 See Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013) (noting that “[m]uch confusion derives from the use of the expression ‘fundamental principles of international law’ that is at the topic of the legal system and originates in treaty or custom”). 135 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 42 (25 May). The general principle of respect for vested rights (also referred to as the general principle of acquired rights) is classified under Digest number 55. 136 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 60. 137 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.). The general principle of non ultra petita is classified under Digest number 117. 138 Mavrommatis Jerusalem Concessions, Judgment [1925] p.c.i.j. (ser.A) No. 5, at 27 (26 Mar.). The Court continued by noting that “for a principle taken from general international law cannot be regarded as constituting an obligation contracted by the Mandatory except in so far as it has been expressly or implicitly incorporated in the Protocol”. Ibid.

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General principles may also supplement norms of customary international law. Verdross, Bassiouni and Palchetti, for example, note that general principles play an important role in interpreting, identifying and deducing customary international law.139 However, although their views are in theory correct, the Court’s practice does not provide any clear examples where a general principle would supplement a norm of customary international law. 5.3

General Principles Retain Their Independence When Embodied in Other Sources of International Law

A norm may simultaneously be part of more sources of international law and retain its independent existence in all the sources that it belongs to. Mendelson, in comparing treaty provisions with customary norms, observes that “the treaty does not wholly displace corresponding customary law obligations; though the occasions for going behind the treaty will necessarily be rare”.140 Or, as the Court in Military and Paramilitary Activities stated, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. […] It will therefore be clear that customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content.141 Similarly, general principles – also when identical to treaty provisions or norms of customary international law – retain their existence as a source independent of treaty law and custom. Skomerska-Muchowska agrees and observes that “[although] many general principles have been codified in multilateral agreements or customary law, they do not lose their character as general principles”.142 139 Yotova, above n. 21, at 279 (referring to Verdross); Bassiouni, above n. 5, at 775; Paparinskis, above n. 14, at 122 (referring to Palchetti). 140 Mendelson, above n. 19, at 169–170. 141 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶¶178–179 (27 June). See also ibid., at ¶177; Rosemary Abi-Saab, above n. 56, at 369. 142 Skomerska-Muchowska, above n. 19, at 257. See also ibid., at 268–269 (noting that general principles of humanitarian law retained their character as general principles despite their transition into customary international law).

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However, when a norm exists in multiple sources of international law, the Court is likely to resort to its treaty form. As the Court said in Military and Paramilitary Activities, “the operation of the treaty process must necessarily deprive the customary norm of its separate applicability”.143 However, for a treaty to ‘displace’ the customary norm in a particular dispute, the norms in each source must be identical in content and the treaty in question must apply to both disputing States. An example of a norm existing in all sources of international law simultaneously is the rule of treaty interpretation, codified in Article 31(1) vclt. Article 31(1) vclt is entitled the ‘General Rule of Interpretation’ and provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.144 This treaty provision was declared by the Court in 1991 to be reflective of a norm of customary international law,145 in addition to having originated as a general principle. Article 31(1) was drafted by International Law Commission’s (ilc’s) Special Rapporteurs on the Law of Treaties, Gerald Fitzmaurice among them. Fitzmaurice relied in his drafting on the general principles ascertained in the Court’s jurisprudence. As the 1964 ilc report notes, Sir Gerald Fitzmaurice, the previous Special Rapporteur on the Law of Treaties […] in his private writings deduced six principles from the jurisprudence of the Permanent Court and the International Court which he regarded as the major principles of interpretation.146 In its pre-1969 jurisprudence, the Court ascertained several general principles that formed the basis of Article 31(1). For example, in one of its first advisory opinions, the Court referred to the general principle of ‘natural and ordinary meaning’ whose content corresponds to Article 31(1) vclt.147 The Court in 1925 143 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶175 (27 June). 144 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 31(1). 145 See Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.) (noting that “[t]hese principles are reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary international law on the point”). See also Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶18 (13 Dec.); Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, ¶112 (4 June). 146 Rep. of the Int’l Law Comm’n, 16th Sess. (1964), U.N. Doc. A/CN.4/173, at 220 (emphasis added). 147 The general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such

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ascertained “a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd”.148 The Court referred the general principle of ‘natural and ordinary meaning’ also in the 1950 Admission of a State to the United Nations, 1952 Anglo-Iranian Oil Co., 1957 Right of Passage, 1960 Constitution of the Maritime Safety Committee, 1961 Temple of Preah Vihear and 1962 South West Africa decisions.149 However, since the adoption of the vclt in 1969 (and even before it entered into force in 1980), the Court has preferred to rely on Article 31(1) vclt in relation to issues of treaty interpretation, and not on its general principle counterpart. In 1991, the Court declared Article 31(1) as a norm of customary international law to ensure the applicability of Article 31(1) in disputes among States who did not subscribe to the vclt.150 The Court could attain the same result by simply acknowledging that Article 31(1) is a general principle or by relying on its jurisprudence that ascertains the general principle of ‘natural and ordinary meaning’. The Court’s omission to refer to this norm also as a general principle does not cancel out the general principle that corresponds to Article 31(1) vclt, in the same way as recognising the norm’s customary nature in 1991, the Court did not deprive Article 31(1) of its validity as a treaty provision. Although overshadowed by its treaty and customary counterpart, the general principle of ‘natural and ordinary meaning’ did not cease to exist. It is still part of international law and is being used by other international tribunals in its Article 38(1)(c) form.151

148 149

150 151

i­ nterpretation would lead to something unreasonable or absurd is classified under Digest number 144. Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 39 (16 May) (emphasis added). Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.); Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 104 (22 July); Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (25 Nov.); Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion [1960] i.c.j. 150, at 160–161 (8 June); Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 32–33 (26 May); South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections [1962] i.c.j. 319, at 336 (21 Dec.); South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶72 (18 July). Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] i.c.j., at ¶¶91, 131 (6 June). Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber Judgment [1999] i.c.t.y., at ¶282 (15 July) (noting that “[n]otwithstanding the fact that the icty Statute is legally a very different instrument from an international treaty, in the interpretation of the Statute it is

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Figure 5.1 Norm of interpreting of international instruments (of ‘natural and ordinary meaning’) belongs to all three sources of international law

Ironically, the general principle that corresponds to Article 31(1) vclt (i.e., the general principle ‘that the words must be interpreted in the sense in which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd’) is not specific to treaty interpretation and applies to instruments that are not international agreements, such as reservations and other forms of unilateral declarations. Thus, when compared to its counterpart norm in Article 31(1), the general principle of ‘natural and ordinary’ meaning’ is much broader than the treaty provision and the customary norm that reflects it (both the treaty and customary norm are limited to the interpretation of treaties). Also if overshadowed by Article 31(1) vclt and its customary counterpart, as some scholars (and perhaps the Court) would have it be, the general principle of ‘natural and ordinary meaning’ applies with no inhibitions also to the interpretation of international instruments that are not necessarily treaties. Less clear is the Court’s (potential) reference to all three sources of international law in its 2015 Application of the Genocide Convention case. In this case, the Court stated that “the Convention [Article 38(1)(a) norms] enshrines

nonetheless permissible to be guided by the principle applied by the International Court of Justice with regard to treaty interpretation […] ‘[that] [t]he first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endavour to give effect to them in their natural and ordinary meaning in the context in which they occur’”; emphasis added), citing Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.).

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p­ rinciples [i.e., potentially Article 38(1)(c) norms] that also form part of customary ­international law [i.e., Article 38(1)(b) norms]”.152 This pronouncement could be interpreted as the Court acknowledging the treaty nature of the Genocide Convention and the general principles enshrined in the treaty (some of which came to reflect also norms of customary international law). Another interpretation of the word ‘principles’ (other than the potential reference to the Article 38(1)(c) source) is to the ‘principle’ modalities within treaties. The ‘principles’ that reflect a modality of norms within treaty provision belong to Article 38(1)(a) and not Article 38(1)(c) of the Court’s Statute. The Court’s reference to ‘principles that form part of customary international law’ could also be interpreted as a reference to general principles with an international (specifically customary) underpinning. In this sense, the Court’s pronouncement refers only to treaties and general principles, and not (also) to customary international law. A similar statement that seemingly combines all sources of international law can be found in the Arbitral Award of 31 July 1989 case. The Court stated that [certain] principles are reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary international law on the point.153 The Court in the Legality of the Threat or Use of Nuclear Weapons advisory opinion referred to “a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles”.154 The Court implied that the same norm was reflected in all three sources of international law also in the Territorial and Maritime Dispute case when it said that “[it] has recognized that the principles of maritime delimitation enshrined in Articles 74 and 83 [of unclos iii] reflect customary international law”.155

152 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶87 (3 Feb.) (emphases added). 153 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.) (emphases added). 154 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶82 (8 July). See also Yotova, above n. 21, at 308. 155 Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624, at ¶139 (19 Nov.), referring to Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40, at ¶¶167 et seq. (16 Mar.) (emphases added).

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The consequences of the norm’s presence in all three sources of international law are, for example, that the same norm is subject to different processes of ascertainment and evolution over time. The norm has a different scope of application and there are also differences in the possibilities of its modification alongside its potential for retroactivity and States’ opt-out options. The Court’s ascertainment of a general principle differs from how it ascertains treaty provisions or customary international law. In ascertaining general principles, the Court does not rely on the norm’s drafting history or subsequent agreement and practice, as it does in interpreting treaty provisions or States’ opinio juris and their practice in ascertaining norms of customary international law. General principles, like norms of customary international law, apply to the entire international community. In comparison, treaty provisions apply only to the Contracting Parties. The Court’s reference to a treaty provision may displace the norm’s existence as a general principle or a norm of customary international law; however, the ‘displacement’ applies only to the Contracting States. For example, the vclt provisions on treaty interpretation supersede their counterparts in customary international law and the general principles counterparts in relation to its 116 Contracting Parties,156 but not also in relation to States which did not ratify the vclt. As the Court said in Maritime Delimitation in the Indian Ocean, because “neither Somalia nor Kenya is a party to the ­Vienna Convention”,157 the Court relied on the customary norms of treaty interpretation, not the vclt. The difference between the scope of general principles and custom is the existence of persistent objectors to the emergence of customary norms. Theoretically, a State that objects to the emergence of a norm of customary international law could be bound by the same norm expressed as a general principle. The third consequence of the norm’s existence in different sources is its potential non-retroactivity. Article 4 vclt, for example, limits its scope “only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States”.158 For example, when examining the pre-vclt treaties between the drc and Rwanda, the Court was precluded from applying Article 66 vclt (that codifies the consequences of a treaty 156 See United Nations Treaty Series, Chapter xxiii: Law of Treaties (last visited on 20 May 2019). 157 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections [2017] i.c.j. 3, at ¶42 (2 Feb.). See also ibid., at ¶63. 158 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 4.

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breach) because they were concluded before the vclt entered into force for these States.159 The non-retroactivity of the vclt (and the potential non-retroactivity of other treaties) means that the vclt’s rules of interpretation cannot be relied upon to interpret treaties concluded before 1980, when the vclt entered into force. However, the Court allowed itself to apply those provisions retroactively by declaring them to be reflective of norms of customary international law.160 General principles on treaty interpretation (and others) – like customary norms – apply retroactively. There seems to be no difference between customary international law and general principles. However, at least in relation to the norms of treaty interpretation, their content differs.161 For example, customary norms of treaty interpretation have the exact scope the vclt has (i.e., treaty interpretation); the general principles on treaty interpretation extend beyond the vclt to cover treaty-interpretation rules that are not encompassed in Articles 31 and 32 vclt. The same norm that belongs to all three (traditional) sources of international law – although having the same content at some point in time – evolves in each of the sources differently. For example, the Court considers State practice and opinio juris in determining the content of the norm’s customary existence; however, these factors do not play a role in the Court’s determination of the evolution of the norm’s content as a general principle. Similarly, the Court may consider States’ subsequent agreements and practice in interpreting ­treaty provisions; however, these elements do not play a role in the Court’s ­ascertainment of the evolution of their general principles counterparts. Unlike treaty provisions or customary international law, the evolution of general principles is based on the Court’s assessment of international law. A treaty ­provision, norm of customary international law and a general principle that embody the same norm may, over time, evolve and come to cover different grounds. Their f­uture evolution is one of the major reasons to consider the 159 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6, at ¶125 (3 Feb.). The Court noted that Article 66 was not reflective of a general principle or custom, “[n]or have the two Parties otherwise agreed to apply Article 66 between themselves”. Ibid. 160 Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶18 (13 Dec.) (noting that “Article 4 of the [Vienna] Convention […] does not […] prevent the Court from interpreting the 1890 Treaty in accordance with the rules reflected in Article 31 of the Convention”). 161 Cf. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶175 (27 June) (noting that the customary norm, although derived from the treaty, does not “have a content exactly identical to that of the rules contained in the treaties”).

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norm’s existence in different s­ources – although seemingly identical – as sources in their own right. One of the consequences of the norm’s existence in different sources is the States’ opting out to be bound by that particular norm. States may opt out of treaty provisions through reservations, or by deciding not to become Contracting Parties in the first place. States may opt out of an emerging norm of customary international law by acting as persistent objectors. However, as far as general principles are concerned, there seem not to be any opt-out possibility. For example, States that have not signed and ratified the vclt are not bound by Articles 31 and 32 concerning treaty interpretation. Non-contracting States are, however, bound by these same provisions as norms of customary international law. Non-contracting States could, theoretically, have voiced their objections to Articles 31 and 32 before the Court declared them as reflective of customary international law in 1991 (or even earlier). However, considering that Articles 31 and 32 are based on general principles, a non-­contracting State that has also persistently objected to the emergence of customary norms on treaty interpretation would nevertheless be bound by Article 31 and 32 norms of treaty interpretation in the form of general principles. States’ reservation to a treaty provision does not bar the application of the same norm in the form of customary international law and as a general principle. As the Court in Military and Paramilitary Activities explained, the reservation in question is confined to barring the applicability of the United Nations Charter and Organization of American States Charter as multilateral treaty law, and has no further impact on the sources of international law which Article 38 of the Statute requires the Court to apply.162 The Court further explained that a reservation to a multilateral treaty [does not] exclude the application of any rule of customary international law the content of which was the same as, or analogous to, that of the treaty-law rule which had caused the reservation to become effective.163 The Court’s jurisprudence does provide a particular mechanism of opting out of a general principle. The Court can, however, decide that a particular general principle is obsolete and de facto declare its non-existence in international law. 162 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶56 (27 June) (emphasis added). 163 Ibid., at ¶175.

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Over time, a general principle that does not have practical value is likely to become obsolete and lose its status among the norms of positive (or existing) international law. Herczegh agrees that general principles may “fall into desuetude” and may be superseded by newer general principles that correspond to the international reality.164 The Court may also decide to simply not refer to a general principle in a particular decision, although its ‘omission’ does not preclude the Court from relying on the same general principle again, unlike when the Court determines that a general principle is obsolete. By omitting to mention a particular general principle the Court did not also negate its existence as part of international law. States do not have any means of refusing to be bound by a general principle. This may be due to the limited view with which the acj approached the task of drafting the Court’s Statute – its work was geared towards enabling the Court’s decision-making, not the Court’s clarification of international law for the nondisputing States. Clearly, however, the Court’s work has an effect in clarifying international law for the entire international community, whether or not the Committee was able to predict it. 5.4

Canons of Supersession among the Sources of International Law

Considering that general principles are independent of (and are as legally binding as) treaty provisions and norms of customary international law, there are canons on supersession that regulate the interaction among the three sources. This section considers the canons of supersession between general principles and treaties and customary norms and among the general principles themselves. General principles are superseded by treaties only for the Contracting Parties and (usually) only for the duration of the treaty.165 As Greenwood writes, “[a] treaty prevails over customary law as between the parties to the treaty but a treaty will not affect the rights of States not party to that treaty”.166 General principles that are superseded by a treaty provision in a particular case remain applicable to the non-Contracting States. It is less clear whether and when are general principles superseded by customary international law. When a customary norm would supersede a general principle, the supersession may not apply to those States that obtained the status of a persistent objector in ­relation 164 Herczegh, above n. 23, at 73. 165 Cf. Gerald Fitzmaurice (1986), above n. 30, at 627. 166 Greenwood, above n. 6, at 5 (emphasis in original).

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to that customary norm. Customary international law may also, in theory, displace a general principle until it ceases to exist or until States with their practice and opinio juris modify the ­customary norm, so that it no longer identically coincides with the general principle. When a treaty provision gives rise to a corresponding norm of customary international law, both the treaty provision and the customary norm preclude the application of the general principle in most, if not in all, instances. The corresponding general principle theoretically still exists as a norm of internatio­ nal law; however, its practical application is limited only to those States that have persistently objected to the formation of the customary rule and are not Parties to the treaty in question. This reasoning encompasses those general principles that are applicable to the conduct of States (all substantive and some procedural general principles). The remaining general principles (all interpretative and some procedural general principles) are usually (with general principles on treaty interpretation representing a large exception) not superseded by treaty provisions and corresponding norms of customary international law. A treaty provision or a norm of customary international law supersedes a general principle only when they are both covering the same content. ‘Supersession’ is not to be equated with ‘existence’. In other words, when a norm in one source supersedes the same norm in another source, the former does not deprive the latter of its existence in its respective source or in international law generally.167 There is not much Court jurisprudence on the canons of supersession among the sources of international law and scholarship is similarly very scarce. The Court has not yet invoked a general principle that would conflict with a treaty or customary norm. According to Thirlway, this is so because general principles are meant to fill in the gaps in custom and treaties and not to conflict with them.168 Berry similarly observes that general principles are “less likely to conflict directly with treaties or custom” for another reason, i.e., because (according to him) general principles represent guiding standards rather than binding rules169 or, in other words, because general principles are not a source that would be equal to treaties and customary international law. 167 See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶177 (27 June) (in relation to the interaction between treaty provisions and customary norms). 168 Thirlway, above n. 9, at 140 (noting also that “in no case have the principles been in contradiction with other applicable rules”). 169 Berry, above n. 35, at 175.

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5.4.1 General Principles vs. Treaties The application – not the actual existence – of a general principle in a particular case depends on whether and to what extent it is superseded by a treaty provision applicable before the Court. Treaties supersede general principles only to the extent that their content overlaps with that of the general principle’s,170 only for the Contracting Parties, and only for the duration of the treaty. Supersession is here defined as the Court deciding not to apply a particular general principle on the account of a treaty provision. For example, the Court in the Certain German Interests in Polish Upper Silesia case said that the Geneva Convention conferred on Poland the right of expropriation, which constitutes an exception to the general principle of respect for vested rights”.171 In other words, the general principle of respect for vested rights was not applicable to Poland only to the extent precluded by the Geneva Convention. General principles may be superseded by lex specialis international obligations that States have undertaken before initiating the case before the Court.172 As the Court said in the Treatment of Polish Nationals in Danzig, general principles are subject “to the treaty provisions binding upon the Free City”.173 Hersch Lauterpacht in 1927 similarly observed that States could change a general principle by adopting special rules,174 that is, by adopting lex specialis treaties. The Court confirmed this statement in its 1969 North Sea Continental Shelf by noting that “the provisions of the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character, or derived from another source”.175 In this case, the Court confirmed that “rules of international law can, by agreement, be

170 Cf. North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶63 (20 Feb.). See also Gaja, above n. 17, at ¶22. 171 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 21 (25 May). 172 Cf. Skomerska-Muchowska, above n. 19, at 258 (noting that “a more specific treaty norm will not always override a ‘general’ principle based on the collision clause lex specialis derogat legi generali”). 173 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 23–24 (4 Feb.). 174 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co., 1927), at 145 (noting that “[t]he postulate of positivism is complied with by the fact that States entering into legal relations may stipulate for special rules derogatory of the general principle”). 175 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶25 (20 Feb.).

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d­ erogated from in particular cases, or as between particular parties”.176 In its practice, the Court also encourages States to bring claims based on lex specialis treaty provisions rather than on customary rules.177 The Court in North Sea Continental Shelf implied that lex specialis agreements need not contain “any express provision” indicating the supersession.178 According to Herczegh, however, general principles may be “superseded expressly by new agreements”, because “lex specialis, or a particular legal rule, does not unconditionally and invariably hold ground against the general rule, i.e. the principle of law”.179 The possibility that a lex specialis agreement does not preclude a more lex generalis norm’s application may be read into ­Skomerska-Muchowska’s statement that “a particular principle may prevail over a treaty norm”.180 It is worth remembering, however, that besides being equated with lex generalis norms, general principles may also adopt a more lex specialis form. A treaty supersedes general principles whether it is lex prior or lex posterior to the Court’s ascertainment of general principles. Even when the general principle is lex posterior vis-à-vis a treaty, the general principle’s lex generalis nature results in its inability to supersede the treaty, unless – as Gerald Fitzmaurice writes – the general principle in question is of a jus cogens nature.181 For example, the Court in Certain Questions of Mutual Assistance said that “Djibouti cannot rely on the principle of reciprocity in seeking execution of the international letter rogatory it submitted to the French judicial authorities” because the 1986 treaty did not provide “that the granting of assistance by one State in respect of one matter imposes on the other State the obligation to do likewise when assistance is requested of it in turn”.182 In this case, the 1986 treaty superseded the general principle of reciprocity to which the Court had referred since 1938 and has been part of the Court’s Statute since 1921,183 at 176 Ibid., at ¶72. 177 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, ¶274 (27 June) (noting 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”). 178 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶72 (20 Feb.). 179 Herczegh, above n. 23, at 73 (emphasis added). 180 Skomerska-Muchowska, above n. 19, at 258. 181 Gerald Fitzmaurice (1986), above n. 30, at 627. 182 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶119 (4 June). 183 Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74, at 22 (14 June) (referring to reciprocity as a ‘condition’). See also Right of Passage over Indian Territory (Port. v.

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least as between Djibouti and France. The general principle of reciprocity nevertheless remains part of international law and applies to Djibouti to the extent that the 1986 treaty does not apply.184 Similarly, the Court in the Territorial and Maritime Dispute in the Caribbean Sea noted that Article 15 of unclos iii precluded the application of the general principle of equidistance to delimitations involving special circumstances. The Court, however, reassured us that “[a]t the same time equidistance remains the general rule [of international law]”.185 In other words, the general principle of equidistance still applies to all other circumstances not covered by Article 15 for States Parties to unclos iii. unclos iii also does not affect the application of this general principle to those States that are not Parties to unclos iii – for those States the general principle of equidistance applies also in instances involving special circumstances (to the extent that it is not superseded by another treaty or a norm of customary international law).186 A particular treaty provision may also supersede one general principle’s application, while not affecting the application of another. For example, the Court in Oscar Chinn said that Article 13 of the Saint Germain Treaty exempted the general principle of freedom of trade while retaining the general principle of freedom “in regard to the river system” intact.187 In theory, treaty provisions (may) conflict only with substantive general principles. A situation where a treaty provision conflicted with a procedural or an interpretative general principle is less likely. For example, a treaty provision could conflict with a procedural general principle when a later-in-time treaty would provide rules of procedure before the Court that contradicted with the already-ascertained procedural principles. A situation where a treaty provision could conflict with an interpretative general principle may present itself when a treaty codifies interpretative rules (which are most likely limited to that ­particular treaty, the vclt being an exception). In such instance, the Court would most likely resort to the treaty provisions of an interpretative nature, also if in conflict with an already-ascertained general principle. However,

184 185 186 187

­India), Preliminary Objections [1957] i.c.j. 125, 144 (26 Nov.) (referring to reciprocity as a “basic principle”). The general principle of reciprocity is classified under Digest number 111. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659, at ¶281 (8 Oct.). The general principle of equidistance is classified under Digest number 76. Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 81 (12 Dec.) (noting that “there is no evidence that it intended to depart, so far as concerns commerce, from the general principle of freedom […] in regard to the river system in question”). The general principle of freedom of trade is classified under Digest number 39.

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g­ eneral principles that guide the Court’s interpretation of a particular treaty are not likely to conflict with that treaty, because – as the Court said in the Rights of Minorities in Upper Silesia case – “there is a presumption that the provisions of the Convention are in conformity with the principles underlying the Minorities Treaty”.188 In other words, general principles that ‘underlie’ a particular treaty are presumed to be in conformity with it. Does a treaty provision supersede a general principle when the treaty “preserves and enacts the essence of the principle”?189 Yes, a treaty may supersede a supporting general principle for a particular case if the Court decides to rely solely on the treaty provision and does not rely on its general principle counterpart. However, regardless of the supersession, the general principle codified in such a treaty remains part of international law, should the Court choose to rely on it in a particular case. 5.4.2 General Principles vs. Customary International Law The Court’s jurisprudence is silent as to what the canons of supersession are between customary international law and general principles. The Court usually refers to general principles and custom interchangeably or as part of general international law. In the absence of concrete judicial practice, analogising the Court’s consideration of the relationship between bilateral (local) custom and ‘more general’ customary international law may point to potential canons of supersession between these two sources. The Court’s reasoning in the Right of Passage case points to the conclusion that a more lex specialis general principle could supersede a lex generalis customary norm and vice versa. In this case, the Court determined that a more specific unwritten agreement between the States had precedence over both the (more general) customary international law and general principles. The Court declared that “[the lex specialis] practice clearly established between two States which was accepted by the Parties as governing the relations between them […] must prevail over any general rules”.190 A norm of customary international law supersedes a general principle only to the extent that the norms in both sources overlap. For example, Mendelson argues that the ‘new’ customary rule that States have “jurisdiction over the continental shelf adjacent to its territorial sea” supersedes the lex generalis 188 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 33 (26 Apr.). 189 Thirlway, above n. 9, at 101. 190 Right of Passage over Indian Territory (Port. v. India), Merits [1960] i.c.j. 6, at 44 (12 Apr.). In reflecting on this case, Bassiouni observes that the Court’s consideration of bilateral custom “bypassed ‘General Principles’”. Bassiouni, above n. 5, at 797.

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general principle of freedom of the high seas.191 However, this ‘new’ customary norm applies only to the extent that it overlaps with the general principle of freedom of the high seas, i.e., only to the extent of the ‘territory of sea’ over the continental shelf that is adjacent to the territorial sea. Or, explained differently, the general principle of freedom of the high seas applies to the (high) seas outside the geographical sphere of the sea over the continental shelf adjacent to the territorial sea. In theory, the ‘new’ custom would also not supersede this general principle for States that persistently objected to the custom’s emergence. When superseded, the general principle does not apply to a particular case; however, it retains its existence in international law. 5.4.3 General Principles vs. General Principles On a few occasions, the Court in its jurisprudence considered two prima facie competing general principles. Skomerska-Muchowska notes that “[u]nder certain circumstances, one principle may give way to another, even though the former is still valid”.192 The decision whether general principles supersede or are compatible with one another (as it is with the other canons of supersession presented here) rests with the Court. The Court considered side-by-side the general principle of unanimity and the general principle governing treaty termination on account of a breach in the Continued Presence of South Africa in Namibia advisory opinion.193 The Court determined that allowing the general principle of unanimity to supersede the general principle governing treaty termination would lead to a ­situation where the Mandatory State’s consent would be required to end the Mandate, although the Mandatory State was responsible for breaching the Mandate agreement.194 In other words, the Court deciding to apply the general principle of unanimity instead of the general principle governing treaty termination would have produced an unjust result. 191 Mendelson, ‘Practice, Propaganda and Principle in International Law’, 42 Current Legal Problems 1 (1989), at 7–8 (noting that President Truman’s 1945 declaration gave rise to this “new” customary rule). 192 Skomerska-Muchowska, above n. 19, at 259. 193 The general principles of unanimity and that of regulating the termination of a treaty relationship on account of breach are classified under Digest numbers 51 and 6, respectively. 194 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16, at ¶101 (June 21) (noting that the Mandatory would have discretion in deciding when to terminate the Mandate, and stating that “[f]or obvious reasons, the consent of the wrongdoer to such a form of termination cannot be required”).

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The Court considered two prima facie conflicting general principles, namely, the general principle of the right to self-determination and the general principle of uti possidetis juris also in the Frontier Dispute (Burkina Faso/Mali) case.195 However, unlike in the Continued Presence of South Africa in Namibia, the Court did not prioritise one general principle over the other. Instead, the Court ­considered them side-by-side, i.e., the Court relied on the general ­principle of uti possidetis juris in interpreting the general principle of self-determination.196 Similarly, the Court in Jurisdictional Immunities of the State did not find that the two general principles of sovereign equality of States and territorial integrity to be competing, but said that they “ha[d] to be viewed together”.197 The Court was deciding between two similar general principles, namely, the general principle that the international agreement cannot create direct rights and obligations for private individuals and the general principle that the intention of Parties is decisive, also in its Jurisdiction of the Courts of Danzig advisory opinion.198 General principles, as norms belonging to other sources of international law, may have their lex specialis counterparts. For example, the Court in Interpretation of Treaty of Lausanne based its decision on the lex specialis version of the general principle of unanimity, which allowed voting for all members without certain votes counting towards determining unanimity.199 In instances where a lex specialis general principle is available, it most likely supersedes the more ‘general’ general principle.

195 The general principles of self-determination of peoples and uti possidetis juris are classified under Digest numbers 45 and 36, respectively. 196 Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶25 (22 Dec.) (noting that “[a]t first sight this principle [of uti possidetis] conflicts outright with another one, the right of peoples to self-determination. [… However] [t]he essential requirement of stability in order to survive […] [h]as induced African States judiciously to consent to the ­respecting of colonial frontier, and to take account of it in the interpretation of the principle of self-determination of peoples”). 197 Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99, at ¶57 (3 Feb.). These two general principles are jointly classified under Digest number 13. 198 Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 18 (3 Mar.). The general principle that the international agreement cannot, as such, create direct rights and obligations for private individuals is classified under Digest number 3; the general principle that the intention of the Parties in concluding an agreement is decisive is classified under Digest number 142. 199 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 30–32 (21 Nov.).

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Fundamental general principles may prevail over less fundamental ones. For example, the Court in the 2007 Application of the Genocide Convention said that there is no “principle of sufficient generality and weight to override the clear provisions of the Court’s Statute, and the principle of res judicata”.200 In this case, the Court implied that the general principle of res judicata is not easily superseded by other general principles (and norms in other sources), and could be considered in this sense to be one of the fundamental general principles. Herczegh similarly suggests that, in his opinion, the (more fundamental) “principles of the [United Nations] Charter should have precedence of any other principles in international law”.201 Herczegh’s statement, although pointing only to a section of general principles (i.e., those incorporated in the United Nations Charter), implies that a specific sub-set of general principles is more fundamental – and therefore capable of superseding – the others. An additional view on the rules of supersession among general principles is put forward by Berry, who suggests that a lex posterior general principle supersedes a lex prior general “in the context of the factual circumstances of a particular case”.202 His hypothesis is interesting, but the Court’s practice does not provide any example that would confirm it. Although the Court’s practice on the interaction among the sources of international law is almost non-existent – the same applies for the scholarship on the topic – there are certain canons of supersession that could (and potentially do) apply in the Court’s jurisprudence. Whether or not general principles are superseded by treaties, norms of customary international law and even by other general principles, they remain part of international law, at least until the Court does not view them as obsolete. 5.5 ‘Other Rules’ of International Law? In the 1960s, and perhaps even earlier, the Court began relying on its precedents to identify new – mainly procedural – rules of international law, without referring to them as ‘principles’ at any point in its jurisprudence. These new norms are referred to here as ‘other rules’ because they do not belong prima

200 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶119 (26 Feb.). The general principle of res judicata is classified under Digest number 148. 201 Herczegh, above n. 23, at 51. 202 Berry, above n. 35, at 185–186 (referring to Alexy).

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facie to any of the three traditional sources of international law in Article 38(1) of the Court’s Statute. ‘Other rules’ are like any other norms in the modality of ‘rules’ that the Court relies upon in deciding, with the difference that, unlike treaty and customary ‘rules’, they originate in the Court’s jurisprudence. However, their method of ascertainment in the Court’s jurisprudence does not seem to belong to any of the methods through which the Court ascertains other sources of international law. Although found in the Court’s decisions, ‘other rules’ cannot form part of “judicial decisions and the teachings of the most highly qualified publicists of the various nations”,203 because Article 38(1)(d) codifies the “subsidiary means for the determination of rules of law”,204 not the rules of international law. An example of such ‘other rule’ is the Court’s pronouncement in the Continued Presence of South Africa in Namibia advisory opinion, where the Court identified a rule that [i]t is […] a logical necessity that any request for the appointment of a judge ad hoc must be treated as a preliminary matter on the basis of a prima facie appreciation of the facts and the law.205 In ascertaining this rule, the Court did not rely on its Statute or Rules (or other treaty), nor did it declare it as a norm of customary international law. The Court also did not use the word ‘principle’ to describe this novel notion. This suggests that the rule concerning the appointment of judges does not (prima facie) belong to any of the three traditional sources. The Court relied again on the same ‘other rule’ in its Western Sahara advisory opinion, by referring solely to its Continued Presence of South Africa precedent.206 Its reliance solely on its precedent in confirming the existence of this rule strengthens the argument that this ‘other rule’ does not form part of the Article 38(1) sources. In another instance, the Court in the Aegean Sea Continental Shelf case referred (solely) to its 1957 decision in Certain Norwegian Loans in ascertaining the rule that “when its competence is challenged on two separate grounds, ‘the Court is free to base its decision on the ground which in its judgment is more 203 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(d). 204 Ibid. (emphasis added). 205 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16, at ¶36 (21 June). 206 Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶13 (16 Oct.).

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direct and conclusive’”.207 In its 1957 Certain Norwegian Loans case, the Court did not refer to any basis or evidence in identifying this ‘other rule’, nor did it refer to it in previous (or subsequent) jurisprudence as a ‘principle’.208 Considering that the Court did not base the rule concerning the challenge to its competence on any ground in 1957, and in 1978 it confirmed its existence only by referring to its precedent, confirms that this rule is, too, an ‘other rule’ of international law that does not belong to any of the three sources. The difference between ‘other rules’ and general principles is that the Court does not refer to ‘other rules’ as ‘principles’ at any point in its jurisprudence. The Court’s reference to its precedent, without also identifying it as a ‘principle’, is a clear indication that the Court had identified an ‘other rule’ for which the Court’s precedent is the only basis. ‘Other rules’ resemble general principles with a judicial underpinning because the Court relies on its jurisprudence to substantiate their existence. The Court sometimes omitts to refer to ‘other rules’ explicitly as ‘rules’. For example, the Court ascertained the rule that “the Court has not to deal with the motives which may have inspired the request”209 and the rule that “[a]n error of law is not necessarily, and in fact is not usually, made by a Tribunal’s exceeding its competence or jurisdiction”210 without referring to them as to ‘rules’ in its judgments. ‘Other rules’ with time become part of the Court’s settled jurisprudence, because the Court generally does not deviate from its precedents unless compelling reasons so require.211 There have been exceptional instances, however, when the Court did not follow previously-ascertained ‘other rules’. For ­example, 207 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶40 (19 Dec.), quoting Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9, at 25 (6 July). 208 Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9, at 25 (6 July). 209 Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶33 (20 Dec.), referring to Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] i.c.j. 57, at 61–62 (28 May). 210 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶78 (20 July), referring to Judgments of the Administrative Tribunal of the ilo upon Complaints Made against Unesco, Advisory Opinion [1956] i.c.j. 77, at 87 (23 Oct.). 211 See, e.g., Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶20 (20 July) (finding “that there was no reason for it to depart from the position it had adopted”); Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶14 (12 July) (“see[ing] no reason to depart from the position which it adopted in these cases”).

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the Court in the Nuclear Tests case expressly noted that it would not apply the ‘other rule’, which provides that the Court has no power to formulate new submissions when those of the Parties are inadequate. The Court merely noted that “that is not the case here”.212 The Court also modified some of its previously-ascertained ‘other rules’ and identified new ‘other rules’ based on the already-existing ones. For example, in the Right of Passage case, the Court identified the ‘other rule’ that when a case is submitted to the Court, reciprocal obligations of the Parties can always be ascertained. Based on this ‘other rule’, the Court in Military and Paramilitary Activities ascertained another ‘other rule’, namely, the rule that “a determination of the existence of the ‘same obligation’ requires the presence of two parties to a case, and a defined issue between them, which conditions can only be satisfied when proceedings have been instituted”.213 Similarly, in Certain Questions of Mutual Assistance in Criminal Matters, the Court took note of the ‘other rule’ that the consent of the Parties to the jurisdiction of the Court may “be expressed in any particular form”, as referred to in the 1948 Corfu Channel case.214 The Court in the Temple of Preah Vihear and Nuclear Tests identified a broader version of this ‘other rule’, namely, that when international law “prescribes no particular form, parties are free to choose what form they please provided their intention clearly results from it”.215 The Court-ascertained ‘other rules’ are predominately of a procedural nature. ‘Other rules’ may also be interpretative but rarely have the characteristics of substantive norms that would regulate the conduct of the international community. An example of a procedural ‘other rule’ is provided in the Court’s pronouncement in Nuclear Tests that “[t]he dispute brought before it must […] continue to exist at the time when the Court makes its decision”.216 Another procedural rule is the “rule that the dispute must in principle exist prior to the

212 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶29 (20 Dec.), referring to Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 35 (25 May). See also ibid., at ¶54, referring to Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 51 (13 Sept.) (noting that “in the present case, that is not the situation before the Court”). 213 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶64 (26 Nov.). 214 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶60 (4 June), referring to Corfu Channel (U.K. v. Alb.), Preliminary Objections [1948] i.c.j. 15, at 27 (25 Mar.). 215 Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 31 (26 May). See also Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶45 (20 Dec.). 216 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶55 (20 Dec.).

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filing of the application”.217 In ascertaining any of the ‘other rules’, the Court did not rely on any external basis or evidence, save for its jurisprudence. Some ‘other rules’ were also of an interpretative type. For example, in the Right of Passage, the Court referred to the “rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it”.218 Similarly, the Court in Aegean Sea Continental Shelf, by relying on the Nationality Decrees Issued in Tunis and Morocco advisory opinion, ascertained the ‘other rule’ that a domestic matter becomes part of international law when a State “has undertaken obligations towards other States with respect to that matter”.219 A rare example of a substantive ‘other rule’ is that the international organisation is independent of its members when it is “in ‘such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect’”,220 ascertained by the Court in Western Sahara by referring to the Reparation for Injuries advisory opinion. This ‘other rule’ was classified as a substantive norm because it regulates the relationship of members of the international organisations vis-à-vis the organisation and it is not related to the Court’s procedure or its interpretation. ‘Other rules’ generally do not, but may replace general principles. However, the Court has been increasingly resorting to procedural ‘other rules’, potentially at the expense of procedural general principles. There is no scholarship on the question of ‘other rules’, although some authors hinted at their existence. For example, Mendelson writes that the Court seems to have “at its disposal another ‘gap-filler’ which is nowhere expressly mentioned in article 38(1): the sometimes rather mysterious process that bears

217 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pak.), Judgment [2016] i.c.j. 552, at ¶40 (5 Oct.). See also Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. U.K.), Preliminary Objections [2016] i.c.j. 833, at ¶43 (5 Oct.). 218 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.). See also Thirlway, above n. 9, at 134. 219 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶59 (19 Dec.), referring to Nationality Decrees Issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 4 (7 Feb.). 220 Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶148 (16 Oct.), quoting Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 178 (11 Apr.).

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the compendious name ‘judicial reasoning’”.221 Instead of recognising that the Court’s pronouncements provide for ‘other rules’ of international law, scholars consider such judicial pronouncements to be part of its judicial reasoning (which they invariable are), but do not consider them as norms that could form a source of international law in their own right. Since these ‘other rules’ are of judicial origin, they could be considered to belong to Article 38(1)(c) of the Court’s Statute. They are also, like general principles, ‘other rules’, usually ascertained in the Court’s reasoning and not in its holding. The ‘other rules’ could be potentially placed under the umbrella of the broader interpretation of Article 38(1)(c). As general principles, ‘other rules’ are judicially made, the difference between general principles and ‘other rules’ being that the latter have never been referred to in the Court’s jurisprudence as ‘principles’. (In theory, the Court could retroactively refer to these ‘other rules’ as ‘principles’ in any of its future decisions and thus turn them into general principles.) There is a potential overlap between general principles and ‘other rules’. For example, the Court in Military and Paramilitary Activities listed new rules by referring to “[c]ertain points of principle”.222 Without referring to them also as ‘principles’, the Court in this case ascertained two ‘other rules’, namely the rule that “[a] State which decides not to appear must accept the consequences of its decision”223 and the rule that “the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute”.224 The Court’s reasoning in Western Sahara provides another example of an ‘other rule’ that is closely related to the general principle that the jurisdiction of the Court depends on the consent of the States. The Court declared that “the legal position of the State which has refused its consent to the present proceedings is not ‘in any way compromised by the answers that the Court may give to the questions put to it’”.225 The basis for this conclusion was the Court’s 1950 Interpretation of Peace Treaties advisory opinion. 221 Mendelson, ‘The International Court of Justice and the sources of international law’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), at 80–81. 222 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶28 (27 June) (emphasis added). 223 Ibid. 224 Ibid. 225 Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶42 (16 Oct.), quoting Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 65, at 72 (30 Mar.).

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As general principles, ‘other rules’ also found their way into the vclt. The Court in Jurisdiction of the European Commission of the Danube adhered, for example, to the rule applied in its previous decisions that there is no occasion to have regard to the protocols of the conference at which a convention was negotiated in order to construe a text which is sufficiently clear in itself.226 This rule, ascertained by the Court in 1927 resembles Article 32 vclt, which provides that “[r]ecourse may be had to […] the preparatory work of the treaty […] to determine the meaning when the interpretation according to article 31 […] leaves the meaning ambiguous or obscure”.227 The Court in its 1973 Fisheries case referred to this rule (also codified in Article 32 vclt) as a ‘principle’ that was identified in the 1950 Competence of the General Assembly advisory opinion, and not in the Jurisdiction of the European Commission of the Danube advisory opinion.228 However, the ‘principle’ identified in the 1950 advisory opinion was, despite the Court’s statement, incorporated into Article 31 vclt, and was not reflective of the ‘other rule’ that was subsequently incorporated into Article 32.229 As the name ‘other rules’ suggests, norms in the modality of ‘principles’ do not belong to this (potential) source of international law. The Court does not always mention the modality of a norm in its jurisprudence and the assessment of the predominately ‘rules’ modality of the ‘other rules’ is based on the content of the Court’s pronouncements. Although an intriguing area that calls for further scholarly exploration, these ‘other rules’ are not the object of a detailed study in this book. It suffices

226 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 28 (8 Dec.). See also Interpretation of the Statute of the Memel Territory, Judgment [1932] p.c.i.j. (ser.A/B) No. 47, at 249 (24 June). 227 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 32. 228 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶17 (2 Feb.), referring to Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.). 229 The Court referred to the “‘cardinal principle of interpretation that words must be interpreted in the sense which they would normally in their context, unless such interpretation would lead to something unreasonable or absurd’”. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.), quoting Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 39 (16 May).

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to note for the time being that rules other than those in Article 38(1) of the Court’s Statute exist and form part of the structure of international law. 5.6

General Principles and Other Source(-Related) Notions

Scholars agree that there may be sources of international law beyond those listed in Article 38(1) of the Court’s Statute. Pellet, Greenwood and Herczegh, for example, note that the list of sources in Article 38(1) is incomplete,230 with Pellet implying that the Court has already referred to some of these sources in its jurisprudence.231 What could these sources outside Article 38(1) be? Pellet, for example, identifies to decisions and resolutions of international organisations as potential sources.232 However, Parry notes that the United Nations General Assembly Resolutions “are only binding for the States which vote in favour of them”.233 Pellet additionally lists unilateral acts and unilateral declarations as sources independent of those listed in Article 38(1) of the Court’s Statute. However, like the decisions and resolutions of international organisations, unilateral acts and declarations are not binding on the entire international community – they bind only one State that created it.234 Parry additionally suggests that natural law and equity are sources ­additional to those listed in Article 38(1).235 However, Elias and Lim reason that if equity is indeed an independent source of international law, “there does not seem to be any sensible or pre-ordained way of identifying its content”.236 Thirlway similarly observes that “equity […] implies a balancing of competing considerations [and is] distinct from the application of a more or less clear rule”.237 ­Interestingly, the Court’s Chamber in its Gulf of Maine decision ­referred to

230 Pellet, above n. 4, at 700, 705; Greenwood, above n. 6, at 4. Cf. Herczegh, above n. 23, at 11 (noting that Article 38 “summarizes and collects the results achieved so far in the course of evolution”), at 98 (writing that “Article 38 of the Statute does not enumerate the sources of international law”). 231 Pellet, above n. 4, at 700. 232 Ibid., at 709, 711. 233 Parry, above n. 21, at 21. 234 Pellet, above n. 4, at 705–707, referring to Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶¶43, 46 (20 Dec.). See also Malgosia Fitzmaurice, above n. 66, at 264. 235 Parry, above n. 21, at 109 (considering natural law and equity as ‘material’ sources). See also Thirlway, above n. 9, at 105 (referring to equity). 236 Elias and Lim, above n. 7, at 44. 237 Thirlway, The International Court of Justice (Oxford: Oxford University Press, 2016), at 28.

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‘­equity’ as to a “­fundamental principle[]”,238 implying that it may belong to ­Article 38(1)(c) of the Court’s Statute. If there are more than three sources of international law, as the existence of ‘other rules’ perhaps suggests, what could the relationship between the general principles and other potential sources not listed in Article 38(1) be? Can these potential sources supersede or even substitute for the Court’s application of general principles? This section considers the relationship of general principles to sources-related notions that are most commonly associated or confused with general principles, rather than promoting a theory of what the sources additional to Article 38(1) of the Court’s Statute are or should be. Instead, the text below briefly outlines the relationship of general principles to jus cogens, ex aequo et bono and equity. Equity is also compared to the specific ‘equitable general principles’, identified in the Court’s jurisprudence. 5.6.1 General Principles vs. Jus Cogens Scholars regard general principles and jus cogens as closely related.239 For example, Paparinskis and Bassiouni note that general principles may serve as a basis for jus cogens norms.240 Weatherall similarly states that the “principles of humanity a[re] the basis of jus cogens”241 and the general principle of human dignity is “informing jus cogens”.242 Because they are “based on fundamental and especially compelling principles”,243 Bassiouni classifies jus cogens norms as a sub-category of general principles and argues that jus cogens norms are ascertained in the same manner as general principles are.244 According to

238 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶130 (12 Oct.) (emphasis added). 239 Bassiouni, above n. 5, at 801–809. See also Int’l L. Comm’n, Second report on jus cogens by Dire Tladi, Special Rapporteur, Rep. of the Int’l L. Comm’n (2017), U.N. Doc. A/CN.4/706, at ¶¶48–52. 240 Bassiouni, above n. 5, at 777; Paparinskis, above n. 14, at 120. See also Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’, 49 Canadian Y. Int’l L. 3 (2011), at 19 (noting that jus cogens “is considered by some scholars to be a subcategory of general principles of law, rather than of customary international law”). 241 Weatherall, Jus Cogens: International Law and Social Contract (Cambridge: Cambridge University Press, 2015), at 62. 242 Ibid., at 44. See also ibid., at 58. 243 Sykes, above n. 240, at 19 (referring to scholarly opinion, in particular to Bassiouni). 244 Bassiouni, above n. 5, at 780, 802, 817 (concluding that “jus cogens emerged out of ‘General Principles’ and […] immediately moved up to become a separate and higher ranking source of law”); Sykes, above n. 240, at 19 (noting that jus cogens is not based on state practice).

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­ assiouni, the general principle of territorial sovereignty obtained the jus coB gens status.245 However, the norms’ jus cogens status is not only limited to general principles, but could also apply to treaty provisions and norms of customary international law. Explained in other words, jus cogens status may be attributed to the modality of both ‘principles’ and ‘rules’ belonging to any of the sources of international law. 5.6.2 General Principles vs. Ex Aequo et Bono Article 38(2) of the Court’s Statute enables the Court to decide ex aequo et bono, which is translated as “from equity and goodness”.246 Article 38(2) provides that “[Article 38(1)] shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”.247 The acj did not draft this provision. Instead, it was added to the pcij Statute by the Assembly of the League of Nations. However, it is not clear what ex aequo et bono represents. Thirlway, for example, considers ex aequo et bono as an (presumably the Court’s) ‘instrument’,248 while Herczegh notes that Kelsen referred to ex aequo et bono as a general principle.249 As Article 38(2) provides, the Court cannot apply ex aequo et bono without the express authorisation from States. As no such authorisation has been given to date, there is no jurisprudence that would clarify ex aequo et bono decisionmaking and its relationship to general principles. However, Article 38(2) seems to allow the Court – when authorised to decide in accordance with ex aequo et bono – to reach beyond the limits of international law when resolving a dispute between the two or more Parties. This is a logical conclusion considering that Article 38(1) requires the Court to decide solely on the basis of international law. Ex aequo et bono may therefore enable the Court to rely on bases that are beyond the applicable international law and perhaps even beyond the limits of law. Following this reasoning, in deciding ex aequo et bono the Court could rely on moral, social, philosophical and other non-legal considerations that are 245 Bassiouni, above n. 5, at 808. 246 Fellmeth and Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2009), at 91. 247 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(2). 248 Thirlway, above n. 9, at 104. 249 Herczegh, above n. 23, at 100 (citing Kelsen in stating that “‘[s]ince the principle of ex aequo et bono is a principle recognized in some legal systems as a part of positive law, Article 38, paragraph 1, clause (c) may endanger the application of Article 38, paragraph 2, which requires the consent of the parties to the application of the bonum et aequum principle”).

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otherwise unavailable to the Court when considering Article 38(1) sources of international law. Pellet agrees that Article 38(2) allows the Court to “depart from a strict application of the rules and principles of international law”.250 Such understanding is also implied from the Gulf of Maine decision, where the Court’s Chamber stated that “[it] is […] bound by its Statute, and required by the Parties, not to take a decision ex aequo et bono, but to achieve a result on the basis of law”.251 The Court in 1962 Temple of Preah Vihear confirmed that considerations of physical, historical, religious and archaeological character could not form the basis for a legal decision, at least not under its Article 38(1) consideration.252 These factors could, however, form the basis of the Court’s ex aequo et bono decision. The Court, as a ‘court of law’, cannot rely on moral and other non-legal ‘principles’ when deciding in accordance with Article 38(1) of its Statute, unless these ‘principles’ are expressed in a legal form. For example, as the Court said in its 1966 South West Africa decision, “[it] can take account of moral principles only in so far these are given a sufficient expression in legal form”.253 Non-legal ‘principles’, whether moral, political, social, historical, geographical, are devoid of any legal content. Such ‘principles’ may be used as part of Article 38(2) consideration but cannot also form part of Article 38(1)(c), because (1)(c) expressly refers to ‘principles of law’ (its original formulation was similarly referring to the ‘rules of international law’). Additionally, the chapeau of Article 38(1) provides that the Court will decide ‘in accordance with international law’. The words ‘law’ and ‘rules’ clearly denote that general principles are a source of law. Moral and political ‘principles’ could be one of the bases of a particular treaty. However, the Court applies the treaty, and not the moral and political ‘principles’, as part of international law applicable to the dispute before the Court. For example, the Court in South West Africa said that the preamble to the 250 Pellet, above n. 4, at 700. 251 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶59 (12 Oct.) (emphasis added). 252 Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1962] i.c.j. 6, at 15 (15 June). 253 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶49 (18 July) (emphasis added). The Court similarly stated that “[h]umanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law”. Ibid., at ¶50.

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­ nited Nations Charter refers to the moral and political basis of “specific legal U provisions […] set out [in the Charter]”.254 However, in this case the Court did not rely on the moral and political basis of particular provisions, but on the United Nations Charter itself, i.e., the treaty that these non-legal principles gave rise to. Similarly, the Court in its 1951 Reservations to the Genocide Convention advisory opinion observed that the Genocide Convention was drafted “to confirm and endorse the most elementary principles of morality”.255 The Court in its advisory opinion relied on the Genocide Convention and not on the ‘principles of morality’. The Court relies on legal ‘principles’ and ‘rules’ in solving disputes between States, not on non-legal considerations. Ex aequo et bono provides that the Court, with the express permission from States, decides on the basis of nonlegal considerations. However, ex aequo et bono decisions are not devoid of ‘law’.256 Applying non-legal aspects in the Court’s potential ex aequo et bono decisions does not preclude the Court’s consideration of international (or other) law. The Court could also rely on Article 38(1) sources when deciding ex aequo et bono. The difference between a ‘plain’ Article 38(1) and an Article 38(2) decision is that in the latter the Court may rely on non-legal considerations alongside the Article 38(1) sources. Following this reasoning, the Court could rely on general principles in deciding ex aequo et bono as part of its reliance on Article 38(1) sources. The position of general principles in the Court’s ex aequo et bono decision would be equal vis-à-vis treaties and norms of customary international law. Scholarship that focuses on non-legal principles does not contribute to the clarification of Article 38(1)(c) norms. Such scholars are not observing the modality of ‘principles’ that form part of legal norms; instead, their writings most likely describe the tools the Court could resort to in deciding pursuant to Article 38(2) of the Court’s Statute. Ex aequo et bono as a method of solving disputes may be used, for example, in solving political (as opposed to legal) disputes. Pellet refers to certain interwar treaties that expressly provided that the Court decide ex aequo et bono

254 Ibid. 255 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May). 256 Cf. White, ‘Equity: A General Principle of Law Recognized by Civilized Nations?’, 4 L. & Justice J. 1, 103 (2004), at 107 (noting that “[a] decision ex aequo et bono would be against the law”); Thirlway, above n. 9, at 106 (noting that the Court’s “Chamber distinguished between three forms of equity: contra legem (contrary to law), praetor legem (additional to law), and infra legem (within the law)”).

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when “the dispute does not involve a question of law”.257 Similarly, the Court in Aegean Sea Continental Shelf confirmed that arbitrators of political disputes “may decide ex aequo et bono”.258 In contrast, the Court may only decide based on legal considerations259 – unless, of course, the Parties requested the Court to decide ex aequo et bono. Or, as the Court stated in the South West Africa case, [l]aw exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.260 5.6.3 General Principles vs. Equity Scholars related general principles with the notion of equity in 1907, if not earlier. The setting-up of the International Prize Court in 1907 (that never came to be) resulted in a draft Statute which provided that “the Court shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity”.261 Despite the resemblance between ‘general principles of justice in equity’ and ‘general principles of law recognized by civilized nations’, the 1907 provision most likely referred to ex aequo et bono as included in Article 38(2), and not to general principles as in Article 38(1)(c) of the Court’s Statute. The Court in its jurisprudence interpreted ‘equity’ as the “direct emanation of the idea of justice”262 and fairness.263 The Court in Ahmadou Sadio Diallo also referred to the definition of equity provided by the Grand Chamber of the European Court of Human Rights, namely, that equity is the “‘flexibility and an objective consideration of what is just, fair and reasonable in all the

257 Pellet, above n. 4, at 732 (emphasis added). 258 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶58 (19 Dec.). 259 Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] i.c.j. 15, at 30 (2 Dec.), quoting Haya de la Torre (Colom. v. Peru), Judgment [1951] i.c.j. 71, at 78–79 (13 June). 260 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Judgment [1966] i.c.j. 6, at ¶49 (18 July) (emphasis added). 261 Pellet, above n. 4, at 683 (referring to the 1907 Hague Convention (xii) relative to the Creation of an International Prize Court; emphasis added). 262 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶71 (24 Feb.). See also Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶149 (22 Dec.). 263 Thirlway, above n. 9, at 105 (observing that the Court’s Chamber in Frontier Dispute (Burkina Faso/Mali) related “equity on a loose sense” with the notion of fairness).

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c­ ircumstances of the case’”.264 The Court noted in its North Sea Continental Shelf case that “it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles”.265 In its other decisions, the Court declared “the legal concept of equity [a]s a general principle directly applicable as law”266 and one of “the fundamental principles”,267 alongside considering similarsounding notions of ‘equitable considerations’268 and ‘equitable result’.269 The Court’s attributing to equity the status of a general principle is at odds with the discussions of the acj. For example, Ricci-Busatti at the acj in 1920 suggested that ‘principles of equity’ be included as part of Article 38(3). However, this suggestion was not accepted and he “regretted that the principles of equity, not always the same as law, were not mentioned [in the Court’s Statute]”.270 Phillimore opposed including equity among the existing sources or as an additional source because “[t]he adoption of ‘equity’ as a source of law would result in giving too much liberty to the judge”.271 Hagerup additionally observed that “equity was a very vague conception and was not always in harmony with justice”.272 Scholarly works support the Court’s proposition of allowing equity an expression through one (or more) general principles. Berry, for example, argues that “[g]eneral principles have […] grounded judicial use of the concept of equity”.273 Akehurst similarly notes that recognising equity “as a separate concept [is] redundant” because it is already recognised in Article 38(1)(c) of the Court’s Statute.274 In his work, Schachter writes jointly about ‘General

264 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324, at ¶24 (19 June), quoting Al-Jedda v. United Kingdom, Grand Chamber Judgment [2011] European Court of Human Rights, at ¶114 (7 July). 265 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶85 (20 Feb.). 266 Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶71 (24 Feb.) (emphasis added). 267 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶130 (12 Oct.) (emphasis added). 268 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324, at ¶¶24, 33 (19 June). 269 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶¶293–294 (10 Oct.). 270 Procès-Verbaux of the Proceedings of the Committee, above n. 2, at 332. 271 Ibid., at 333. 272 Ibid., at 296–297. 273 Berry, above n. 35, at 176. 274 Akehurst, above n. 59, at 814.

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­ rinciples and Equity’.275 White similarly explores the possibility of ‘equity’ P corresponding to a general principle.276 In contrast, Thirlway hesitates to equate equity with general principles or customary international law and considers the possibility that equity may be a self-standing source.277 Pellet similarly argues that equity is not part of international law or its sources.278 However, he acknowledges the possibility of equity gaining the status of a general principle (with a domestic underpinning) through the ‘back door’ of domestic law by means of comparative research.279 Interestingly, it seems that equity does not overlap with a specific “sub-set of general principles of law”,280 i.e., the equitable general principles,281 as demonstrated by comparing White’s work on equitable general principles and Pellet’s work on equity. For example, White ascertains estoppel, the doctrine of ‘unclean hands’, and the maxim that ‘equity will not suffer a wrong to be without a remedy as their representatives’ as representatives of the equitable general principles,282 while Pellet’s illustrative example of equity is the Court’s reliance on the “‘elementary considerations of humanity’”.283 White and Pellet also differ as to the jurisprudence that applied the respective notions. According to White, the Court relied on equitable general principles in Serbian Loans, Fisheries, Temple of Preah Vihear, Nuclear Tests, Diversion of Water from the River Meuse,284 while Pellet lists S.S. “Wimbledon”, “Lotus”, Barcelona Traction and the Interpretation of the Agreement of 25 March 1951 between the who and Egypt as decisions referring to ‘equity’.285 A comparison of White’s and Pellet’s research suggests that there is no overlap between the equitable general principles and equity in the Court’s jurisprudence.

275 Schachter, International Law in Theory and Practice: Developments in International Law (Dordrecht: Martinus Nijhoff, 1991), at 49–61. “The first [general principles] implies generalizing, the second [equity] invites particularization. What they have in common is an appeal to reason and moral ideas”. Ibid., at 49. 276 White, above n. 256, at 103. 277 Thirlway, above n. 9, at 105. 278 Pellet, above n. 4, at 723, 730. 279 Ibid., at 723–724. See also Thirlway, above n. 9, at 110 (referring to Hudson’s individual opinion in Diversion of Water from Meuse). 280 Akehurst, above n. 59, at 814 (noting that the “equitable principles are simply a sub-set of general principles of law”). 281 The Court’s reference to equitable general principles is listed under Digest number 65. 282 White, above n. 256, at 110–101. 283 Pellet, above n. 4, at 725. 284 White, above n. 256, at 111–113. 285 Pellet, above n. 4, at 724–725.

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Given the Court’s understanding of equity as ‘justice’ and ‘fairness’, equity may, however, overlap with another general principle, namely, the general principle of the sound administration of justice.286 Whatever the general principle(s) through which equity expresses itself in international law, the Court does not apply ‘equity’ as understood in the common law legal systems.287 Equity may (also) be present in the formulation ex aequo et bono, codified in Article 38(2) of the Court’s Statute.288 Although White notes that “there is [also] no agreement amongst commentators that deciding a case ex aequo et bono, as Article 38(2) allows, imports principles of equity”,289 Article 38(2) may import the notion of equity as potentially expressed through the general principle of sound administration of justice. Equitable general principles are not related to ex aequo et bono, despite the similarity in their names. Or, as the Court clarified in the Continental Shelf (­Libya/Malta) case, “the ‘Application of equitable [general] principles is to be distinguished from a decision ex aequo et bono’”.290 However, equitable general principles could, like any other general principles, form part of the Court’s Article 38(2) considerations if the Court decided to rely on Article 38(1) while deciding ex aequo et bono. 286 Cf. White argues that the Court applies equitable general principles instead of relying on equity as understood in domestic (common-law) systems. White, above n. 256, at 111. White notes that equity “is closely related to Western legal traditions”. Ibid., at 104. The general principle of the sound administration of justice is classified under Digest number 118. 287 White, above n. 256, at 111. 288 Fellmeth and Horwitz equate ‘equity’ with the Latin expression ‘aequitas’. Fellmeth and Horwitz, above n. 246, at 23. See also Francioni, ‘Equity in International Law’, Max Planck Encyclopedia of Public International Law (2013); Kotzur, ‘Ex Aequo et Bono’, Max Planck Encyclopedia of Public International Law (2009). In the North Sea Continental Shelf case, for example, the Court stated that “[e]quity does not necessarily imply equality”. North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶91 (20 Feb.). See also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶295 (10 Oct.). Cf. White, above n. 256, at 104 (noting that equity had been referred to by the Romans as “aequitas or equality”). 289 White, above n. 256, at 107. 290 Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶45 (3 June), quoting Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, at ¶71 (24 Feb.).

Part 2 General Principles in Practice

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Chapter 6

Research Methodology and Statistics Scholars have not (yet) come up with one particular method of ascertaining general principles. Neither is the Court’s jurisprudence clear as to how the Court ascertains Article 38(1)(c) norms nor what those norms are in the first place. The question of how one looks for general principles is necessarily linked to the question of where one looks and who the entity is that ascertains general principles. There are two sections to this chapter. In the first section, this chapter describes the absence of any agreed-upon methodology in the scholarship and in the Court’s jurisprudence as to how general principles are ascertened. The first section also outlines the research methodology applied in this book, which is focused exclusively on surveying and analysing the Court’s jurisprudence between 1922 and 2018 in its entirety (215 decisions in total). The research methodology applied here was based on a preliminary assumption that the Court, by referring to ‘principles’, refers to “the general principles of law recognized by civilized nations”1 and the scope of analysis of the Court’s reference to the word ‘principle’.2 Do all substantive general principles have an international underpinning? Are all interpretative general principles of judicial origins? What is the most predominant type of general principle that overlaps between the pcij and the icj? The second section of this chapter presents the statistical findings that resulted from the specific research approach undertaken in this book and answers the questions on the number of general principles, their recurrence in the Court’s jurisprudence, and the relationship between the general principles’ three types and three underpinnings. 6.1

Researching General Principles

Where does one find general principles? Scholars tend to ascertain general principles in the Court’s jurisprudence and in other scholarship. How does one 1 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). 2 A step-by-step approach to the present research is also detailed in Đorđeska, ‘General principles of law recognized by civilized nations: method, inductive-empirical analysis and (more) “scientific” results’, in Deplano (ed.), Pluralising International Legal Scholarship: The Promise and Perils of Non-Doctrinal Research Methods (Cheltenham: Edward Elgar Publishing, forthcoming). © koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_008

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prove the existence of a general principle? What are the criteria that need to be satisfied? Scholars have rarely elaborated on their methods of ascertaining general principles that would enable other researchers to follow suit in ascertaining new and (potentially) emerging general principles. The Court has been equally ambiguous in its identification (and application) of general principles. Without proper guidance from the Court on what it considers a general principle (within the meaning of Article 38(1)(c)), how can scholars claim that certain general principles have been ascertained by the Court or other international courts and tribunals? This section presents the scholarly methods (or lack thereof) in researching general principles, the Court’s ‘method’, and the methodology of researching general principles applied in this particular study. 6.1.1 Scholars’ Methodology? There is no agreed-upon methodology developed by scholars for ascertaining general principles. Some rely on the international jurisprudence beyond the confines of the Court’s case law; others consider mainly the writings of other scholars, while a few conduct – or at least encourage the conducting of – a comparative analysis of domestic laws. The absence of any agreed-upon method leads to many disagreements on the content, nature and existence of rules of international law. One of the earliest disagreements on the existence of a rule of international law is found by comparing Oppenheim’s and Hersch Lauterpacht’s works. For example, while Oppenheim in his 1921 The Future of International Law claims that “[i]t is notorious that no generally received rule of the law of nations exists for the ­interpretation of international treaties”,3 Lauterpacht in his 1927 Private Law Sources and Analogies of International Law claims that [t]he award of the [1909 Grisbadarna] tribunal is noteworthy because of the complete adoption of the general rule of interpretation of treaties […] that they should be interpreted in accordance with ‘principles of common sense and experience already formulated by the Prudents of Rome’.4

3 Oppenheim, The Future of International Law (New York: Humphrey Milford, 1921), at 35. 4 Hersch Lauterpacht, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (London: Longmans, Green and Co., 1927), at 264.

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Although Oppenheim’s work succeeded the 1909 Grisbadarna award, he – ­ nlike Lauterpacht – considered that no general rule of treaty interpretation u existed. While some criticise the Court for providing “insufficient guidance […] on the methodology [on ascertaining general principles]”,5 scholars themselves have not been clear about how they ascertain the general principles they write about.6 Cheng – one of the most prominent authors on the topic – surveys over 700 international cases. However, save for noting that it applied an inductive method, Cheng leaves the reader ignorant as to the means by which he extrapolated the general principles from the international cases and awards.7 Where does one look for general principles? Cheng, Lauterpacht, Stuyt and Raimondo, for example, prioritise international jurisprudence as a means of ascertaining general principles before considering their potential origin in scholarly work. According to Cheng, international jurisprudence (at least in 1953) constituted “the most important means for the determination of rules and principles of international law”.8 Similarly, Schwarzenberger noted that “[c]ompared with the dicta of textbooks and the practice of this or that State, the decisions of international courts have an authority and reality, which ­cannot be surpassed”.9 In contrast, Herczegh relies almost exclusively on the Hungarian (and Soviet) scholarship when writing about general principles. D’Aspremont refers to scholars of international law as “‘grammarians of formal 5 See, e.g., Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 271. 6 D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 178 (observing that “most authors […] have turned a blind eye to the above-mentioned methodological problems”). An exception is Yotova, who dedicated her research to “seek[ing] to identify the appropriate methodology for ascertaining the existence of the controversial ‘general principles of law’”. Yotova, above n. 5, at 269. 7 Yotova, above n. 5, at 275 (noting that “Cheng distances himself from the methodological debate all together”). 8 Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), at 1. 9 Ibid., at 1, footnote 3 (citing Schwarzenberger); Yotova, above n. 5, at 281 (observing that “it is difficult to use scholarly writings for the identification of general principles of law”); Brierly, ‘The General Principles of Law as Applied by International Tribunals to Disputes on Att­ ribution and Exercise of State jurisdiction by A. M. Stuyt’, 23 Int’l Affairs 3, 394 (1947), at 394 (noting that “there are dangers in the method; it may create the impression that international law is a case-law system”).

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law-ascertainment who systemise the standards of distinction between law and non-law’”10 with potential hidden biases that accompany their writings,11 rather than to authorities in ascertaining general principles. There are several advantages to ascertaining general principles in international jurisprudence as opposed to in the legal scholarship. Firstly, the Court’s decisions are publicly available and accessible to everyone with a wifi connection and interest in the topic. More recent scholarship, usually available in specialised libraries and by subscription, is accessible to a smaller audience. Secondly, the Court is required to apply general principles as codified in Article 38(1)(c) of its Statute when delivering its decisions. In comparison, scholars are free to consider ‘principles’ (e.g., moral, theological, teleological, social, etc.) beyond those encompassed in Article 38(1)(c).12 In reality, however, those scholars who consider only fundamental general principles13 or only those identified in domestic law14 limit themselves in their scope of research more than the Court itself does. The vast majority of general principles that the Court ascertained fall outside these (two) categories. And, thirdly, judges are bound to follow specific rules of conduct pursuant to the Court’s Statute and its Rules, while scholars are enjoying far greater flexiblity and creativity in their work and they are usually not obliged to adhere to any ethical code of conduct that would require their findings to be an accurate reflection of the current (and past) state of international law. The approach that is most commonly associated with the ascertainment of general principles – but adhered to by only a few scholars – is comparativism.15

10 Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), at 128 (quoting d’Aspremont). 11 D’Aspremont, above n. 6, at 177. 12 Saganek writes that the “influence [of Article 38(1)(c)] on the theory of international law is much more difficult to assess”. Saganek, ‘General Principles of Law in Public International Law’, Polish Y. Int’l L. (2017), at 244. Saganek also notes that scholars’ “terminological choice [in whether to consider ‘general principles of law’, ‘general principles of municipal law’, ‘general principles of international law’ or merely ‘general principles] predetermines the results to a high (possibly too high) extent”. Ibid., at 243. 13 Schwarzenberger, ‘The Fundamental Principles of International Law’, offprint from the Recueil des Cours de l’Académie de La Haye en ligne, Vol. 087 (Leiden: Brill/Nijhoff, 1955), at 197–198. 14 See, e.g., Elias and Lim, ‘“General Principles of Law”, “Soft” law and the identification of international law’, xxviii Neth. Y. Int’l L. 3 (1997), at 23–26. 15 See, e.g., Schlesinger, ‘Research on the General Principles of Law Recognized by Civilized Nations’, 51 Am. J. Int’l L. 4 (1957), at 735 (also referring to Schwarzenberger); Yotova, above n. 5, at 272–273 (listing among the comparativists also Oppenheim, Hersch Lauterpacht, Grapin, Schlesinger and Herczegh).

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Mostly understood as surveying States’ domestic laws,16 the comparativist approach also raises the questions of whether general principles need to be universally recognised or whether acceptance by the majority of ‘nations’ suffices.17 Scholars who resort to the comparativist approach in ascertaining general principles usually fall into two groups. The first group proposes comparing domestic laws and finding a common general principle on that basis,18 while the second group proposes identifying general principles that already exist in a particular domestic system that is then compared across different jurisdictions.19 However, d’Aspremont warns of “huge methodological problems associated with the extraction of common standards or mechanisms from various legal traditions that are most often very alien to one another”.20 Indeed, conducting comprehensive and scientific comparative research may be challenging for practical reasons,21 if not for lack of intellectual curiosity. Whatever the scholarly methods of ascertaining general principles are, scholars do not explain them in their work. If their primary method of ascertaining general principles is to consider the international jurisprudence, scholars seldom explain how Article 38(1)(c) of the Court’s Statute relates to the functioning of international tribunals other than the pcij and the icj. Those who rely predominately on other doctrinal work (that most likely does not cite its research method and does not justify its findings) are at risk of rehashing old ideas without taking into consideration the general principles’ evolution. And, lastly, the comparativists are at risk of excluding the vast majority of general principles that the Court ascertains in bases other than domestic law, be it in international law or other bases. Comparativists may also be limited to the 16

17

18 19 20 21

Elias and Lim, above n. 14, at 26; Thirlway, above n. 10, at 95; Kaufman Hevener and Mosher, ‘General Principles of Law and the UN Covenant on Civil and Political Rights’, 27 Int’l & Comp. L. Q. 3, 596 (1978), at 605 (suggesting taking as a basis for a comparative study “[t]he set of rights common to all the constitutions”). It is unclear whether scholars by referring to domestic law refer only to the most fundamental or constitutional laws. Cf. Akehurst, ‘Equity and General Principles of Law’, 25 Int’l & Comp. L. Q. 4, 801 (1976), at 818 (­considering that “[i]t may be possible to find indirect evidence of a general principle of law in books on comparative law”). Yotova, above n. 5, at 282; Berry, Caribbean Integration Law (Oxford: Oxford University Press, 2014), at 174 (suggesting that the Court does not “look into every known legal system” in determining the ‘generality’ of general principles and in ascertaining a general principle). Elias and Lim, above n. 14, at 26. See also d’Aspremont, above n. 6, at 176–177. Thirlway, above n. 10, at 95. D’Aspremont, above n. 6, at 177. Schlesinger, above n. 15, at 751–752. Cf. Kaufman Hevener and Mosher, above n. 16, at 605 (examining four constitutions in analysing the general principle of self-determination).

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consideration of only a few national systems, as surveying the laws of the entire international community inevitably promises to be cumbersome. 6.1.2 The Court’s Methodology The Court in its jurisprudence rarely cited to Article 38(1) of the its Statute,22 and even less so to paragraph (c).23 Among the very few cases that scholars mention as referring to Article 38(1)(c) include the 1950 Reservations to the Genocide Convention advisory opinion, 1966 South West Africa case, North Sea Continental Shelf, the 1970 Barcelona Traction case, and the 2004 Avena and Other Mexican Nationals.24 The Court was not only reluctant to refer to paragraph (c). In its jurisprudence the Court referred neither to Article 38(1), paragraphs (a) or (b) in interpreting treaty provisions or ascertaining customary international law. The Court did neither cite to “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”25 when referring to treaty provisions, nor did it use the formulation “international custom, as evidence of a general principle accepted as law”26 when referring to norms of customary international law. Instead, the Court simply states that it refers to a ‘treaty’ or a ‘custom’ or ‘norm of customary international law’. The same applies to general principles – the Court does not have to refer to the full 22

23

24 25 26

See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶172 (27 June) (noting that the Court’s decision to “refrain from applying the multilateral treaties invoked by Nicaragua [… is] without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute”); Kleinlein, ‘Customary International Law and General Principles: Rethinking Their Relationship’, in Lepard (ed.), Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017), at 137; Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 695. Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 166 (noting that “Article 38 has been of little relevance in the case law of the icj and its predecessor”); Thirlway, above n. 10, at 103 (writing that “no reference was made to Article 38, paragraph 1(c), nor would such reference have been appropriate”); Pellet, above n. 22, at 766; Mendelson, ‘The International Court of Justice and the sources of international law’, in Lowe and Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996), at 79–80. See, e.g., d’Aspremont, above n. 6, at 169; Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013). Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(a). Ibid., art. 38(1)(b).

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formulation, i.e., “general principles of law recognized by civilized nations”,27 in ascertaining general principles. The Court’s task is to apply international law in discharging its judicial function,28 whether or not it cites Article 38(1). The Court’s reference to Article 38(1)(c) in its decisions is not a prerequisite to its ascertainment of general principles. Pellet agrees that “without referring expressly to Art. 38, both Courts [pcij and icj] have, in fact, applied general principles”.29 Thirlway seconds Pellet’s statement by noting that “in no case did the Court expressly link the principle adumbrated with Article 38, paragraph 1(c), of the Statute”.30 The Court also did not resort to the Article 38(1)(c) formulation of “general principles of law recognized by civilized nations”31 in its jurisprudence. As Pellet notes, the Court referred to Article 38 merely to “stress that it was bound to resort to the sources enumerated in para. 1 of said provision”.32 One can only guess what the Court’s methodology in ascertaining general principles is. There are different ways in which the Court formulated its reliance on Article 38(1)(c) norms. For example, it referred on numerous occasions to ‘general principles’, ‘general principles of law’, ‘principles of international law’, ‘legal principles’, ‘cardinal principles’, ‘fundamental principles’, or merely to ‘principles’,33 “without further clarify[ing] their status”.34 Only once did the Court elaborate on a potential model of ascertaining general principles,35 which then vanished from its reasoning. The Court’s reasoning is yet to refer to a comparative domestic law analysis or scholarship in ascertaining general principles. In ascertaining general principles, it mostly relies on its own (and on occasions other international tribunals’) jurisprudence. The Court’s lack of reference to comparative research or scholarly writings does not mean that it does not take them into account during its private deliberations. However, as those deliberations are confidential and not publicly available, any basis of such general principles is unknown to – and thus here considered as non-existent for – the international community.

27 28 29 30 31 32 33 34 35

Ibid., art. 38(1)(c). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶42 (22 Dec.). Pellet, above n. 22, at 766. Thirlway, above n. 10, at 102. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). Pellet, above n. 22, at 696. See also Yotova, above n. 5, at 294. Kleinlein, above n. 22, at 146. Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, 16 (30 Aug.).

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In drafting the pcij Statute, the Advisory Committee of Jurists (acj) was not clear as to what the Court’s methodology of ascertaining Article 38(1)(c) norms would be.36 Does the Court verify its findings “by a scientific study of the laws of different States”37 not mentioned in the reasoning? Does the Court ascertain general principles by analogising domestic laws,38 even if domestic law is “not always relevant or appropriate in international law”?39 Does the Court approach the relevant bases of general principles through inductive or deductive reasoning?40 The Court does not engage in a comparative analysis of domestic laws in its judgments and advisory opinions.41 Andenæs and Leiss argue that the Court “lacks sufficient financial and personnel capacity to make it possible to carry out comprehensive comparative legal research for detailed inductive reasoning”.42 Along those lines, Akehurst proposes that the Court apply only those “general principles of law which were common to the disputing parties, without inquiring whether those principles existed in the laws of other States”.43 However, such ‘general principles’ do not correspond to the norms codified in Article 38(1)(c), which are applicable to (and recognised by) the entire international community. The most unambiguous reference to what could be the Court’s method of ascertaining general principles was in the 1924 Mavrommatis Palestine Concessions case. The Court set out a threefold method of ascertaining general principles (here called the ‘Mavrommatis model’) and noted that the general ­principle must be best calculated to ensure the administration of justice, suited to the procedure before an international tribunal, and be in conformity 36 37 38

39 40 41

42 43

Yotova, above n. 5, at 290. Akehurst, above n. 16, at 814. Raimondo, ‘General Principles of Law, Judicial Creativity, and the Development of International Criminal Law’, in Darcy and Powderly (eds), Judicial Creativity and the Development of International Criminal Law (Oxford: Oxford University Press, 2011), at 47; Berry, above n. 17, at 174 (noting that “in assessing generality [of the general principles] it is important to understand that international courts and tribunals refer to municipal law principles by analogy”). See also Hersch Lauterpacht, above n. 4. Akehurst, above n. 16, at 816. Yotova, above n. 5, at 314, 322 (noting that “[t]he methodology of the icj in ascertaining the existence of general principles of international law is mostly deductive”). Pellet, above n. 22, at 771–772 (noting that “the Court asserts the existence of the general principles of law without taking pains to demonstrate it”); Yotova, above n. 5, at 314. Cf. Kozłowski, Systematicity of General Principles of (International) Law – An Outline’, Polish Y. Int’l L. (2017), at 230 (referring to the “comparativist effort of the judge”). Andenæs and Leiss, ‘The Systematic Relevance of “Judicial Decisions” in Article 38 of the icj Statute’, 77 ZaöRV, 907 (2017), at 962. Akehurst, above n. 16, at 824.

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with the fundamental principles of international law.44 The Court never again invoked this method. However, the analysis of the Court’s jurisprudence shows that it may have added to the ‘Mavrommatis model’ two additional requirements, namely, the recognition of a general principle in international jurisprudence and the absence of any express State objections to its adoption in their domestic laws.45 The latter requirement grants the State the freedom not to follow a general principle that is “rejected by its own legal system”.46 The ‘Mavrommatis model’, either in the narrower or in its broader version, does not feature in the Court’s remaining jurisprudence. The Court’s jurisprudence demonstrates that the ascertainment of a general principle “does not necessarily require detailed reasoning, and may even be adopted by implication”.47 In contrast – and considering the very limited role States play in the Court’s ascertainment of general principles – when considering a possible exception to a particular general principle proposed by one of the Parties to the dispute, the Court requires States to present conclusive evidence in support of that exception. For example, the Court in “Lotus” rejected France’s contention that there is an exception to the general principle of freedom of the high seas because “[it] has not been conclusively proved”.48 The Court sometimes relied on general principles ascertained by other international tribunals.49 For example, in ascertaining the general principle of 44

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, 16 (30 Aug.). See also Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶38 (27 June). 45 See Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶46 (12 Nov.), citing Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 119 (18 Nov.). 46 Akehurst, above n. 16, at 820. 47 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶98 (12 July). See also Sykes, ‘“Nations Like unto Yourselves”: An Inquiry into the Status of a General Principle of International Law on Animal Welfare’, 49 Canadian Y. Int’l L. 3 (2011), at 19 (noting that general principles are recognised as legal norms “without an overt requirement of consistent practice that adheres to the principle”). Cf. Pellet, above n. 22, at 781 (referring to the Kasikili/Sedudu decision); Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 18 (referring to the Gabčíkovo-Nagymaros Project case). Cf. Akehurst, above n. 16, at 818 (suggesting that “[t]he existence of a general principle of law cannot be assumed; it must be proved”). 48 “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 26 (7 Sept.). 49 See also Skomerska-Muchowska, ‘Some Remarks on the Role of General Principles in the Interpretation and Application of International Customary and Treaty Law’, Polish Y. Int’l

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the bond of nationality, the Court acknowledged “certain principles for determining whether full international effect was to be attributed to the nationality invoked” that were evolved by arbitrators.50 However, not all arbitral principles are also applicable before the Court. As the Court said in Interpretation of the Treaty of Lausanne, the general principle of majority, although applicable in international arbitrations, did not apply to the procedure before the Court.51 There seems to be an agreement among scholars that the Court’s methodology in ascertaining general principles does not exists or that is not clear at most. For example, Kleinlein observes that “[t]here does not seem to exist any agreed-on method for establishing that a certain principle is ‘accepted’ or even ‘inherent’ in the international community”,52 and that the Court’s assertion of general principles “is only rarely accompanied by an adequate demonstration of its existence in international law”.53 Bassiouni agrees that the Court mostly does not state what the bases of general principles are, nor does it clarify the methodology for ascertaining them.54 Similarly, Malgosia Fitzmaurice would not describe the Court’s norm-searching either as ‘induction’ or ‘deduction’.55 Although the Court demonstrates that it could ascertain general principles by setting certain standards – as the ‘Mavrommatis model’ demonstrates – it seems to have adopted a more freestyle approach to ascertaining general principles that baffles scholars – if there is an approach of ascertaining general principles to begin with. 6.1.3 Methodology of the Present Study This research distinguishes itself from many other works on the topic by its exclusive focus on the Court’s jurisprudence.56 The findings presented in this

50 51 52 53 54 55 56

L. (2017), at 272 (noting that “international courts duly consider the practice of other courts concerning the application of general principles when they determine the content and scope of general principles”). Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 21–22 (6 Apr.). Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 31 (21 Nov.). Kleinlein, above n. 22, at 139. Ibid., at 131; Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 784 (referring to the Court’s “judicious identification and application of ‘General Principles’”). Bassiouni, above n. 53, at 784, 796, 809. See also Yotova, above n. 5, at 294 (referring to Timor-Leste v Australia order). Malgosia Fitzmaurice, ‘Customary Law, General Principles, Unilateral Acts’, in Sobenes Obregon and Samson (eds), Nicaragua Before the International Court of Justice: Impacts on International Law (Cham: Springer, 2018), at 257. Most scholars in their effort to ascertain general principles rely mostly on other scholarly worksor consider only a sample of the Court’s jurisprudence. See e.g., Kleinlein, above

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book are based solely on the analysis of the Court’s judgments and advisory opinions delivered between 1922, when the Permanent Court of Justice delivered its first decision,57 and 2018, when this research was concluded. Although there are many more decisions by other international courts and tribunals that invoke general principles, it seemed appropriate to focus on assessing how the principal judicial organ of the United Nations and its predecessor – the Court for which this provision was drafted in the first place – ­contributed to the formation and evolution of the Article 38(1)(c) norms ­before venturing into other tribunals’ jurisprudences. The Court’s almost ­century-long jurisprudence alone provided sufficient (if not already overwhelming) material for studying general principles. Consequently, all general principles ascertained with this research methodology are tied to the Court’s jurisprudence. Thus, when compared to Cheng’s work, which considers international arbitral awards and other bilateral tribunals’ decisions, the scope of the general principles ascertained with this research method is more limited. For example, while Cheng promotes salus populi suprema lex as a general principle,58 the present study does not consider it to be a general principle, because the pcij and the icj did not refer to it in their jurisprudence. There were several challenges in conducting this research, as is appropriate for a topic that has not yet seen scholarly consensus.59 Firstly, surveying general principles only through the prism of the Court’s 215 decisions required substantial administrative work in setting up a personal database of the entire jurisprudence of the Court and manually searching the Court’s references to ‘principles’ in its 97-year of its existence.60 Secondly, the absence of any scholarly consensus on the definition of general principles or their method of ­research coupled with the Court’s unclear approach to ascertaining general principles in its jurisprudence, called for the creation of a new research m ­ ethod

57

58 59 60

n. 22, at 142 (referring to Koskenniemi, who in 1985 reportedly approached the topic of general principles by asking ‘what do lawyers mean?’). The first decision the Court delivered was an advisory opinion in the Designation of the Worker’s Delegate for the Netherlands at the Third Session of the International Labour Conference on 31 July 1922. See Designation of the Worker’s Delegate for the Netherlands at the Third Session of the International Labour Conference, Advisory Opinion [1922] p.c.i.j. (ser.B) No. 1 (31 July). Cheng, above n. 8, at 392. D’Aspremont, above n. 6, at 177–178. The emergence of Jus Mundi – an online search engine of international law decisions and other materials – promises to expedite any similar (empirical) research in the future. See Jus Mundi < https://jusmundi.com/en/ > (last visited on 20 May 2019).

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that would be aimed at extrapolating general principles from the Court’s jurisprudence. 6.1.3.1 Initial Assumption The initial assumption of this study was that the Court’s reference to ‘principles’ prima facie corresponds to the Court’s reference to general principles within the meaning of paragraph (c) of the Court’s Statute. Why? Because the word ‘principle’ appears only in paragraph (c); there is no reference to ‘principles’ in Article 38(1), paragraphs (a) and (b). The Court does not use the full ­formulation of any of the three (traditional) sources of international law. How would the Court resort to ‘general principles of law recognized by civilized nations’ other than by referring to them as ‘general principles’ or simply ‘principles’? It is true, however, that the Court may rely on the word ‘principle’ to describe the modality of a norm, e.g., by referring to ‘rules and principles’ of international law. The initial assumption was thus supplemented with a test that a notion to qualify as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute had to – at least as this study is concerned – be representative both of a norm (in either of the two modalities, i.e., either as ‘principle’ or a ‘rule’) and be at least once attributed the prefix ‘principle’ in the entire Court’s jurisprudence. For example, the Court referred to notions as ‘principles’ even when they represented the modality of ‘rules’. One such example is the general principle that the land dominates the sea.61 This general principle was mentioned in the North Sea Continental Shelf case as a ‘principle’;62 however, this general principle embodies the modality of a rule (concrete imperative) rather than a principle (a standard). The Court also referred to general principles as ‘principles’ when their modality was, in fact, a ‘principle’. One such example is the general principle of the sound administration of justice.63 The Court in the Certain Activities carried out by Nicaragua in the Border Area order noted that “the Court, in conformity with the principle of the sound administration of justice […] considers it 61 62

63

The general principle that the land domeinates the sea is classified under Digest number 69. North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶96 (20 Feb.) (noting that “[t]he contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea”; emphasis added). The general principle of the sound administration of justice is classified under Digest number 118.

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a­ ppropriate to join the proceedings in the present case and in the Nicaragua v. Costa Rica case”.64 In its order, the Court referred to the general principle of the sound administration of justice (which is in a modality of a ‘principle’ because it does not provide for any concrete imperative but carries a standard) as a principle. However, the Court’s reference to a ‘principle’ of the sound administration of justice was not alluding to its modality, but rather to its existence as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. The Court alluded to the modality of a norm when referring to ‘principles’ (rather than pointing to its existence as a general principle), when it relied on the expressions such as ‘rules and principles of international law’ or ‘principles and rules of international law’. The expression ‘rules and principles of international law’ does not point to any particular norm; the Court relies on it to refer to international law in general. Not all instances of the Court’s reliance on general principles (when referring to them as ‘principles’) also pointed to a specific general principle that could be listed in the Digest. A number of the Court’s references to ‘principles’ were of a functional nature, meaning that such references informed how the Court considered a particular general principle and not necessarily what its content was. Although not listed in the Digest, these references to ‘principles’ were informative as to the nature and role of general principles and as to their relationship to other sources of international law. The “general principles of law recognized by civilized nations”65 are here referred to as ‘general principles’, and not as ‘principles’, to avoid the possible confusion of the latter with the modality of ‘principles’. Article 38(1)(c) norms may be in the modality of both ‘rules’ and ‘principles’. Although referred to in this study as ‘general principles’, the word ‘general’ was not considered to be a parameter of ascertaining Article 38(1)(c) norms in the Court’s jurisprudence for at least two reasons. Firstly, the word ‘general’ considered next to the word ‘principle’ seemed superfluous. The word ‘general’ describes the scope of applicability of the Article 38(1)(c) norms (i.e., to the entire international community) and not their content. General principles are applicable to the entire international community whether they encompass more general or specific norms. General principles may be either broad (i.e., general) or specific, regardless of what detail the Court went into in explaining 64 65

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Order [2013] i.c.j. 166, at ¶24 (17 Apr.) (emphasis added). See also Certain Activities carried out by Nicaragua in the Border Area (Nicar. v. Costa Rica), Order [2013] i.c.j. 184, at ¶18 (17 Apr.). Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c).

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them.66 Also if Article 38(1)(c) would stand only for those general principles that are general in their nature (which it does not), the term ‘principle’ – as Kleinlein notes – already encompasses the word ‘general’.67 And secondly, the word ‘general’ is also mentioned in the Article 38(1)(b) formulation of customary international law, which provides that the Court is to decide in accordance with “international custom, as evidence of a general practice accepted as law”.68 The Court does not use the word ‘general’ when describing Article 38(1)(b) norms, but describes them as ‘customary inter­ national law’ and ‘custom’, among other variations on the term. Therefore, as with customary international law, the Court may omit the word ‘general’ also when considering the general principles. What other source of international law would the Court’s references only to ‘principles’ – as opposed to ‘general ­principles’ – then belong to? 6.1.3.2 ‘Principles’ in the Court’s Jurisprudence In this study, it sufficed that the Court referred once to the norm as a ‘prin­ ciple’ for it to be considered as a general principle within the meaning of ­Article 38(1)(c) of the Court’s Statute. For example, the Court referred to a generally recognized principle that a multilateral convention is the result of an agreement freely concluded upon its clauses and that consequently none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’être of the convention.69 Although mentioned only in one decision, i.e., in the 1951 Reservations to the Genocide Convention advisory opinion, the Court’s reference to this norm as a ‘principle’ led to its classification as a general principle.70 The Court might have referred to the same norm as a ‘principle’ in several decisions. For example, the Court referred to the general principle of res inter

66 67 68 69 70

See Chapter 3, Conclusion 1 at 63. Kleinlein, above n. 22, at 141 (noting that the Court may have used the term ‘principle’ “to denote the general character and fundamental importance of the norm in question”). Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(b). Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 21 (28 May). The general principle that a multilateral convention is the result of an agreement freely concluded upon its clauses is classified under Digest number 2.

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alios acta71 (or the general principle that a treaty between two States cannot affect the rights of a third State) in the 2011 and the 2012 Territorial and Maritime Dispute (Nicar. v. Colom.) decisions; in both decisions this norm was attributed the prefix ‘principle’. However, the Court was usually not as consistent in attaching the prefix ‘principle’ to the same norms throughout its jurisprudence. For example, the Court might have referred to the same norm as to principle ‘x’ in an earlier decision, but only to ‘x’ in a later decision. Due to this inconsistency, the Court’s reference to the same norm ‘x’ in both decisions was to the general principle of ‘x’. In other words, it sufficed – for the purpose of this study – that the Court referred to a norm once as a ‘principle’ in its entire jurisprudence for it to qualify as a general principle. The Court may have described the norms that it once referred to as ‘principles’ also as ‘ideas’,72 ‘regimes’, ‘conceptions’,73 ‘features’,74 ‘conditions’,75 or omitted to attach to them any prefix altogether. For example, the Court in Minority Schools in Albania referred to the general principle of equality of treatment as a “régime of legal equality for all persons mentioned in the clause”,76 despite referring to it as a ‘principle’ in the Rights of Minorities in Upper Silesia, Jurisdiction of the European Commission and in Oscar Chinn decisions. The Court did not consistently use the prefix ‘principle’ also when relying on the same norm in the same decision. For example, the Court in Territorial and Maritime Dispute in the Caribbean Sea notes that it refers to the general

71

72

73 74 75 76

Fellmeth and Horwitz translate the expression res inter alios acta as, among others, “[a] maxim meaning that treaties, agreements, or other legal instruments cannot derogate from the rights of, or create obligations for, non-parties to the instrument”. Fellmeth and Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2009), at 252. The general principle that a treaty between two States cannot affect the rights of a third State (also res inter alios acta) is classified under Digest number 1. Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 83–84 (12 Dec.) (referring to the “idea of freedom of trade”); Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 17 (6 Apr.) (“[t]he idea underlying the treaties for the protection of minorities”); North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at 47, 53 (20 Feb.) (referring to the “ideas which have always underlain the development of the legal régime of the continental shelf”). Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 83 (12 Dec.). Ibid., at 86 (noting that “the principle of equal treatment is the characteristic feature of the legal régime established in the Congo Basin”; emphasis added). Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9, at 23, 24, 27 (6 July) (referring to the “condition of reciprocity”). Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 18 (6 Apr.) (emphasis added).

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­ rinciple that land dominates the sea in paragraphs 113 and 126,77 although p paragraph 113 does not mention any ‘principle’. All references to the same norm – if referred to in at least one decision as a ‘principle’ in the Court’s jurisprudence – were considered to be references to the same norm to retain the continuity of the norm’s evolution in the Court’s jurisprudence. To maintain the continuity of a norm throughout the Court’s jurisprudence, this study also retroactively attached the status of general principles to norms ascertained in prior decisions but were referred to as ‘principles’ only at a later point in time. In other words, when the norm that did not qualify under any of the Article 38(1) sources and was in the Court’s later jurisprudence ascertained as a ‘principle’, was retroactively given the status of a general principle. Such approach was adopted to preserve the evolution of the (same) norm – a norm that usually did not belong to any other source of international law – through the Court’s jurisprudence. For example, the Court referred to the general principle of intertemporal law both in the 1994 Territorial Dispute and in the 2002 Land and Maritime Boundary between Cameroon and Nigeria decisions. However, the Court referred to this norm as “the principle of intertemporal law”78 only in the 2002 decision, while in 1994 it referred to it as “rules of intertemporal law”.79 Regardless of the fact that it referred to the norm of intertemporal law as a ‘principle’ only in 2002, the Court acknowledged its existence as a norm of international law already in 1994. In other words, both the 1994 and the 2002 references to intertemporal law – although in 1994 without referring to it as to a ‘principle’ – were considered here to be a reference to the general principle of intertemporal law. Similarly, the Court referred to the general principle that the jurisdiction of the Court must be established on the date of filing the application. The Court referred to this general principle in seven decisions, beginning with the 1953 Nottebohm case. However, only in its 2008 decision did the Court refer to this norm also as a ‘principle’.80 All six prior decisions that referred to this norm but 77 78 79 80

Paragraph 126 refers to a ‘principle’ that was stated in paragraph 113 of the same decision. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659, at ¶¶113, 126 (8 Oct.). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶205 (10 Oct.) (emphasis added). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶76 (3 Feb.) (emphasis added). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412, at ¶89 (18 Nov.).

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did not associate it with a ‘principle’ were nevertheless considered to be referring to the same general principle. Retroactively ascertaining general principles based on the Court’s usage of the word ‘principle’ seem to be precarious in classifying norms as general principles. However, if this had not been the approach, the norms that were later given the prefix ‘principle’ would not be attributed to any of the sources of international law.81 6.1.3.3 ‘Principles’ That Are Not General Principles D’Aspremont is rightly critical of scholars who are “mechanically identifying use of general principles of law every time one of these Courts has mentioned the words ‘general principles’”.82 Indeed, not all Court’s references to ‘principles’ were also indicative of Article 38(1)(c) norms. The initial ‘mechanical’ collection of the Court’s references to ‘principles’ in this study was followed by a less ‘mechanical’ removal from the data pool of those ‘principles’ that did not refer to any norm. References to ‘principles’ that were not considered as constituting the Court’s references to general principles were to ‘in principle’,83 ‘of principle’, ‘on this principle’,84 ‘points of principle’,85 and ‘as a matter of principle’.86 Although referring to ‘principle’, the Court in these instances did not ascertain any international norm that would aid the resolution of the dispute before it. For example, when referring to ‘in principle’ – an expression the Court itself noted as raising some ambiguities87 – it mostly noted that there may be an exception to a norm rather than ascertaining a norm of international law. 81

82 83

84 85 86 87

The norms that were only later attributed the prefix ‘principle’ could have been classified as ‘other rules’. However, as no in-depth study exists on to the nature and role of these ‘other rules’ and their status as an independent source of international law (or absence thereof), this line of reasoning and analysis was outside the scope of the study. D’Aspremont, above n. 6, at 169 (referring to Bassiouni and Blondel). See also Thirlway, above n. 10, at 103. See, e.g., Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Sal. v. Hond.), Judgment [2003] i.c.j. 392, at ¶37 (18 Dec.); Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624, at ¶168 (19 Nov.). See, e.g., Competence of the ilo to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] p.c.i.j. (ser.B) No. 13, at 20 (23 July). See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶28 (27 June). See, e.g., Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Costa Rica for Permission to Intervene [2011] i.c.j. 348, at ¶86 (4 May). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶58 (3 Feb.).

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The expression ‘in principle’ was sometimes used in conjunction with the Court’s ascertainment of general principles. However, also in these instances the Court’s reference to ‘in principle’ was not to a norm; ‘in principle’ was rather a word-filler. For example, the Court in Right of Passage used the expression ‘in principle’ when relying on a modified version of the general principle of effectiveness (referred to in this case as a ‘rule’). The Court said that [i]t is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it.88 Mentioned as part of the general principle of effectiveness, the expression ‘in principle’ in the Right of Passage case did not establish the general principle’s existence nor did it contribute in any way towards ascertaining its content. The Court’s reliance to ‘in principle’ may, however, indicate that the general principle of effectiveness may be subject to exceptions. Other Court’s references to ‘principles’ that were not considered here as constituting general principles are ‘principles’ that were specifically included in the texts of treaties, unless the Court in its reasoning recognised them as ‘principles’ independently of the treaty text. For example, when the treaty provision referred to ‘principle x’, but the Court relied only on ‘x’ (without using the word ‘principle’), the treaty text was not considered as embodying a general principle. Such distinction was necessary – at least as far as considering the Court’s jurisprudence goes – because, unlike the Article 38(1)(c) norms, references to ‘principles’ in treaty texts were the result of States’ agreement and part of Article 38(1)(a) of the Court’s Statute. Those general principles that the Court identified as embodied in a treaty (i.e., general principles with an international underpinning) were usually not referred to as ‘principles’ in the treaty text. For example, in Fisheries Jurisdiction, the Court noted that Article 2 of the 1958 Geneva Convention on the High Seas enshrines the general principle “that all States, including coastal States, in exercising their freedom of fishing, pay reasonable regard to the interests of other States”.89 However, Article 2 of the High Seas Convention does not refer to freedom of fishing as a ‘principle’. Article 2 does, however, state that “[t]hese

88 89

Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.) (emphasis added). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶67 (25 July).

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f­reedoms, and others […] are recognized by the general principles of international law”.90 ‘Principles’ mentioned in the Court’s decisions as having been declared by United Nations bodies and other international organisations and ‘principles’ mentioned in their documents were also not considered as belonging to the Article 38(1)(c) norms. Such were, for example, the ‘principles’ recorded in the minutes of the General Assembly plenary meetings,91 ‘principles’ of the United Nations Administrative Tribunal,92 and ‘principles’ appearing in the work of other inter-governmental organisations.93 The question whether international organisations are able to determine general principles within the meaning of Article 38(1)(c) of the Court’s Statute was outside the research scope of this book.94 The Court did, however, ascertain certain general principles that are applicable to the functioning of international organisations.95 Outside the research scope were also all references to non-legal ‘principles’, mentioned in the Court’s reasoning.96 90 91 92

93 94

95

96

Geneva Convention on the High Seas, 29 Apr. 1958, 450 u.n.t.s. 11, art. 2 (emphasis added). Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403, at ¶¶32, 66 (22 July). Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶65 (12 July); Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325, at ¶¶51, 53 (20 July). See, e.g., Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659, at ¶70 (8 Oct.) (referring to “the fundamental objectives and principles of the Central American Integration System”). For literature on this topic see, e.g., Reinisch, ‘Sources of International Organizations’ Law: Why Custom and General Principles are Crucial’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017) and Pierre Durand, ‘La contribution de l’activité normative des organisations internationales au développement des sources du droit international’, University of Paris ii Pantheon-Assas, doctoral dissertation (forthcoming). Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶33 (20 Dec.) (noting that “for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate”). See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶161 (26 Feb.) (referring to “‘the most elementary principles of morality’”), quoting Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15, at 23 (28 May).

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Outside the scope of the research presented here were the references to ‘principles’ in judges’ individual opinions.97 Individual judges are often outspoken about the content and application of general principles they consider, when compared to the Court’s decision.98 However, individual judges cannot interpret international law or ascertain general principles for the entire international community as the Court does, because they alone do not represent “the main forms of civilization and […] the principal legal systems of the world”.99 The Court did not confirm the ‘principles’ invoked by individual judges. For example, in Guardianship of Infants, Judge Kojevnikov invoked the general principle of pacta sunt servanda,100 which was not mentioned in the Court’s reasoning. Similarly, in his dissenting opinion in Jurisdiction of the European Commission, Judge Negulesco referred to two ‘principles’, namely, the freedom of navigation and the principle that “all States [have] the right to take part in conferences which concern their special interests”.101 While the Court on several occasions mentioned the former, it never discussed or invoked the latter.102 In comparison, scholars nevertheless tend to rely on judges’ individual opinions in ascertaining general principles. For example, Malgosia Fitzmaurice considers the dissenting opinion of seven judges to the Question of the ­Delimitation of the Continental Shelf in relation to the general principle of ne bis in idem,103 although the Court’s decision does not refer to it. 97 98

99

100 101

102 103

Pellet, above n. 22, at 781 (noting that “it is not uncommon that individual judges […] resort to general principles”). See, e.g., Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) (Cançado Trinidade separate opinion). See also Yotova, above n. 5, at 321 (commenting that “Judge Cançado Trinidade […] criticised the icj for overlooking the general principles of law”). See also Cheng, above n. 8, at 259 (observing that Judge Moore “formulated the necessity of jurisdiction as one of the principles ‘common to all systems of jurisprudence’ in one of his dissenting opinions”); Brierly, above n. 9, at 394 (noting that “the opinion of a judge or arbitrator […] is more authoritative than the opinion of the same man expressed in a textbook”); Pellet, above n. 22, at 766. Cf. D’Aspremont, above n. 6, at 169. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 9. Cf. Thirlway, above n. 10, at 118–119 (arguing that “the separate and dissenting opinions of the Members of the icj […] to the extent that their authors share the overall view of the Court must be regarded as judicial pronouncements”). Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Swed.), Judgment [1958] i.c.j. 55, at 72 (28 Nov.) (Kojevnikov’s declaration). Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 85, 95 (8 Dec.) (Negulesco dissenting opinion) (ascertaining the former on the basis of the Act of the Congress of Vienna and the latter on the 1818 Protocol of the Congress of Aix-la-Chapelle). The general principle of freedom of navigation is classified under Digest number 60. Malgosia Fitzmaurice, above n. 55, at 262.

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The Court – and this book – did not consider the ‘general principles’ put forward by States in their pleadings as coming under Article 38(1)(c) of the Court’s Statute, unless they were also confirmed by the Court as such. For example, the Court in Certain Questions of Mutual Assistance in Criminal Matters mentioned the “principles agreed by Djibouti and France in Articles 1 and 2 of the Treaty of 1977”.104 The Court considered this and other similar State-­ invoked ‘principles’ to be part of the States’ agreement (i.e., treaty) and not general principles. Parties’ agreement that a particular ‘principle’ applies to their dispute before the Court classifies such ‘principles’ as Article 38(1) paragraph (a) rather than paragraph (c) norms. States’ references to ‘principles’ appearing in the Court’s reasoning were, therefore, outside the research scope.105 Due to the nature of the present research, which is dedicated to the study of the Court’s reliance on general principles between 1922 and 2018, scholarly references to ‘principles’ that were also not mentioned in the Court’s reasoning as ‘principles’ were not considered. For example, Yotova identifies the ‘principle’ “that ‘indirect evidence is admitted in all systems of law, and its use is recognized by international decisions’” by relying on the Corfu Channel decision;106 however, the Court in Corfu Channel did not refer to this norm as a ‘principle’. Therefore, although Yotova ascertained this general principle based on the Court’s jurisprudence, her ‘principle’ was not considered as a general principle for the purpose of this study. 6.1.3.4 Intentional Omissions of (Potential) General Principles Other omissions from the present study’s consideration of general principles were the Court’s vague references to ‘principles’, references to ‘principles’ only in the Court’s decisions but not its reasoning, individual judge’s references to ‘principles’ and States’ reference to ‘principles’ as part of their pleadings. Although pointing to potentially existing general principles, such references were not further analysed here. 104 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶110 (4 June). 105 See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶69 (12 Oct.); Gabčíkovo-Nagymaros Project (Hung./Slovk.), ­Judgment [1997] i.c.j. 7, at ¶37 (25 Sept.) (referring to “technical principles of the agreement” mentioned by Czechoslovakia); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Preliminary Objections [1994] i.c.j. 112, at ¶37 (1 July) (referring to the “‘Principles for the Framework for Reaching a Settlement’” adopted by the Parties); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40, at ¶61 (16 Mar.); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] i.c.j. 12, at ¶225 (23 May). 106 Yotova, above n. 5, at 314.

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An example of a vague reference is the Court’s statement that “[it] applied these principles”.107 Although referring to ‘principles’ that stand for particular norms, this reference was too vague to enable a determination as to which general principles the Court had in mind. References to ‘principles’ that were taken out of the present analysis were also those mentioned only in the abstracts of the Court’s decisions and not in the Court’s reasoning. For example, the Court in Reinterpretation of Land and Maritime Boundary between Cameroon and Nigeria referred to the norm that ‘the freedom to present additional facts and legal considerations not included in the application is subject to the limitation that the dispute must not be transformed’ as a ‘principle’ only in its abstract. This norm was mentioned in a total of four decisions, but the Court did not once refer to it also as a ‘principle’ in its reasoning or in its holding.108 6.1.3.5 Unintentional Omissions of General Principles In addition to the intentional omissions of the Court’s references to ‘principles’ from the research, a few general principles were omitted unintentionally, due to human error. One of the general principles that was mistakenly omitted from this research is the general principle that the critical date for determining the admissibility of the application is the date on which it is filed. This is a procedural general principle with a judicial underpinning, mentioned in five decisions of the International Court of Justice (icj). The Court referred to it in the Border and Transborder Armed Actions,109 Land and Maritime Boundary between 107 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 215 (15 Dec.) (emphasis added). See also Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶80 (25 Sept.) (neither confirming nor denying that a Party-invoked ‘principle’ exists as part of international law); Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶¶42, 48–49 (20 Dec.) (noting that “[t]hese legal principles and rules the Court must, therefore, now examine”). 108 See Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78, at 173 (15 June); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶80 (26 Nov.); Land and Maritime B ­ oundary ­between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶99 (11 June); Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31, at ¶15 (25 Mar.). Because this norm could not be classified under any of the three traditional sources of international law, it was considered as an ‘other rule’. 109 Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶66 (10 Dec.).

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­ ameroon and Nigeria,110 Questions of Interpretation and Application of the 1971 C Montreal Convention arising from the Aerial Incident at Lockerbie,111 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria112 and in the Arrest Warrant of 11 April 2000.113 Only once was this norm referred to as a ‘principle’, in its Questions of Interpretation and Application of the 1971 Montreal Convention decision.114 Although qualifying as a general principle under the present research methodology, the one reference to a ‘principle’ has been detected too late in the research process. This book does also not mention the general principle that a sovereign State has the right to decide what persons would be regarded as its nationals,115 the general principle that of the exchange of Turkish nationals of Greek orthodox religion established in Turkey and Greek nationals of Moslem religion establish­ed in Greece,116 and the general principles of habitual residence and origins.117

110 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶99 (11 June). 111 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] i.c.j. 115, at ¶43 (27 Feb.). 112 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31, at ¶15 (25 Mar.) 113 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶40 (14 Feb.). 114 The Court said that “Libya furthermore draws the Court’s attention to the principle that ‘The critical date for determining the admissibility of an application is the date on which it is filed’”. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] i.c.j. 115, at ¶43 (27 Feb.), quoting Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶66 (10 Dec.) (not referring to this general principle as a ‘principle’). 115 Acquisition of Polish Nationality, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 7, at 16 (15 Sept.) (noting that by signing the Minorities Treaty, Poland limited (but did not erase) its rights conferred by this general principle). “Generally speaking, it is true that a sovereign State has the right to decide what persons shall be regarded as its nationals, it is no less true that this principle is applicable only subject to the Treaty obligations referred to above”. Ibid. 116 Exchange of Greek and Turkish Population, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 10, at 18 (21 Feb.) (noting that Article 2 of the Convention for Exchange of the Greek and Turkish Populations limited (but did not preclude) the application of the general principle of exchange). 117 Acquisition of Polish Nationality, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 7, at 18 (15 Sept.).

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The last known inadvertent omission was of the general principle of admitting only exceptions which are expressly provided for. The Court in its Interpretation of the Treaty of Lausanne advisory opinion noted that Article 5 [of the Covenant of the League of Nations] states a general principle which only admits of exceptions which are expressly provided for, and this principle, as has already been stated, may be regarded as the rule natural to a body such as the Council of the League of Nations.118 This general principle could be either of an interpretative or a substantive type and – due to its basis in the Covenant of the League of Nations – it has an international underpinning. No other references to this general principle, save for in Interpretation of the Treaty of Lausanne, are known at present. Although the aim of this book is to present the totality of general principles ascertained by the Court, more instances of inadvertent omissions of general principles are likely to emerge after scholars begin to rely on the same methodology as it is presented here, in their surveying the Court’s past and future jurisprudence. 6.2 Statistics The Court’s 97 years of existence has yielded 215 decisions (i.e., judgments and advisory opinions),119 delivered between 1922 and 2018. The pcij delivered 59 decisions between 1922 and 1940, while the icj between 1948 and 2018­ 118 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 30 (21 Nov.). Article 5 of the Covenant of the League of Nations provides that “[e]xcept where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting”. Covenant of the League of Nations, 28 Apr. 1919, art.5. 119 Decisions on preliminary objections and States’ applications to intervene were considered to be judgments. Cases that were joined (the North Sea Continental Shelf cases and South West Africa cases) were considered as one unit for the purpose of this statistic. Orders, whether for provisional measures or other documents entitled ‘order’ were not considered as part of the calculation of the total decisions referring to general principles. The Digest additionally lists six pcij and four icj orders that ascertain or confirm the existence of a general principle. These ten orders have not been considered in the analysis presented in this chapter. Only one general principle contained in the Digest (classified under Digest number 134) is based exclusively on an order.

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delivered 156 decisions. All decisions, from its 1922 advisory opinion in Designation of the Worker’s Delegate for the Netherlands at the ilo Conference to its 2018 Obligation to Negotiate Access to the Pacific Ocean were scrutinised for references to the word ‘principle’. Scholars disagree on how often the Court referred to general principles in its jurisprudence; their assessment ranges between “in a number of cases”120 to

Figure 6.1 Decisions referring to general principles (1922–2018)

120 Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge: Cambridge University Press, 2010), at 164. See also Redgwell, above n. 47, at 13.

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rarely121 or even never.122 The results presented here portray a starkly different image of the Court’s reliance on general principles, namely, that the Court between 1922 and 2018 referred to general principles in 76.4 per cent of its ­decisions. The pcij relied on general principles in 64.4 per cent of all its decisions, while the icj referred to general principles in 81.4 per cent of all its decision. The first decision in which the pcij mentioned a general principle was the 1923 Nationality Decrees issued in Tunis and Morocco;123 its last decision referring to a general principle was the Société Commerciale de Belgique.124 The first general principle to appear in icj jurisprudence was that of good faith in the 1948 Conditions of Admission of a State to the United Nations.125 In 2018, the year this research was concluded, the Court considered the general principles of

121 Thirlway, Herczegh, Skomerska-Muchowska, and Bassiouni, for example, consider that the Court or individual judges rarely relied on general principles. Thirlway, above n. 10, at 102; Herczegh, General Principles of Law and the International Legal Order (Budapest: Akadémiai Kiadó, 1969), at 31; Skomerska-Muchowska, above n. 49, at 256; Kwiecień, ‘General Principles of Law: The Gentle Guardians of Systemic Integration of International Law’, Polish Y. Int’l L. (2017), at 237; Bassiouni, above n. 53, at 791 (noting that “[a]n examination of the two court’s decisions reveals that the judges have only sparingly employed ‘General Principles’ in their opinions”). But see Bassiouni, above n. 53, at 792 (observing that “[i]n a number of cases, the court did resort to and apply, ‘General Principles’”). Kozłowski suggests that the Court’s reluctance in ascertaining general principles is “a simple consequence of their character”. Kozłowski, above n. 41, at 233. The Special Rapporteur on ­General Principles of Law notes that “[t]he International Court of Justice and its predecessor appear to have clearly referred to general principles of law in the sense of Article 38, paragraph 3, and Article 38, paragraph 1 (c), of the respective Statutes in only a few cases”. Int’l L. Comm’n, First report on general principles of law by Marcelo Vázquez-Bermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), U.N. Doc. A/CN.4/732, at ¶127 (emphasis added). 122 According to Hudson, the Court never – at least not until 1943 – resorted to the general principles. Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co., 1943), at 611–612 (writing that “the Court has never professed to draw upon ‘the general principles of law recognized by civilized nations’ in its search for the applicable law”). 123 Nationality Decrees issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 4, at 24, 29 (7 Feb.) (addressing the general principles of rebus sic stantibus and peaceful settlement of disputes). 124 Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser. A/B) No. 78, at 175 (15 June) (confirming the existence of general principle of res judicata without referring to it as to a ‘principle’). 125 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] i.c.j. 57, at 63 (28 May).

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reparation,126 estoppel,127 and the burden of proof,128 all of which had been ascertained in the Court’s previous jurisprudence. However, in 2018, the Court also ascertained a new general principle, namely, that the description of offences and the applicable legal defences are reserved for domestic law, also embodied in Article 11(6) of the Palermo Convention.129 6.2.1 General Principles’ Recurrence Between 1922 and 2018, the Court ascertained in total 156 general principles,130 many of which recurred in the Court’s jurisprudence, i.e., these general principles appeared in two or more Court’s decisions and were referred to in at least one decision as ‘principles’. For example, the Court in its 1973 Fisheries Jurisdiction decision noted that [it] would normally apply the principle it reaffirmed in its 1950 Advisory Opinion […] according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself.131 In the Fisheries Jurisdiction that case the Court reaffirmed the existence (and content) of a general principle that it had already ascertained in 1950. Thus, the (interpretative) general principle that there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself is also a recurrent general principle. Similarly, the Court said in the Application for Review of Judgment No. 158 advisory opinion that “[o]ne must bear in mind the principle previously recalled by the Court”132 and in the Application for Review of Judgment No. 333 126 Certain Activities carried out by Nicaragua in the Border Area, Compensation [2018] i.c.j., at ¶¶29–31, et seq. (2 Feb.). 127 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment [2018] i.c.j., at ¶¶158–159 (1 Oct.). 128 Certain Activities carried out by Nicaragua in the Border Area, Compensation [2018] i.c.j., at ¶33 (2 Feb.). 129 Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] i.c.j., at ¶118 (6 June). 130 All general principles are, together with the excerpts of relevant decisions, listed in the Digest (Part 3), at 351–634. 131 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶17 (2 Feb.) (emphasis added). 132 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶87 (12 July) (referring to the general principle “that it is the duty of an international tribunal ‘not only to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not indicated in those

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Non-recurrent 69 (44.87%)

Chapter 6

Referred to in 2 decisions 24 (27.91%) Recurrent 86 (55.13%)

Referred to in 3 or more decisions 63 (72.09%)

Figure 6.2 General principles’ recurrence (1922–2018)

advisory opinion that “[a previously ascertained] principle must continue to guide the Court in the present case”.133 Out of 156 general principles, 87 (or 55.8 per cent) are recurrent. Out of all 87 recurrent general principles, the Court mentioned 63 (or 72.4 per cent) in three or more decisions. Both the pcij and icj each referred to a set of 15 general principles in ten decisions or more. The Court repeated mostly (but not solely) procedural general principles. The most cited general principle is the interpretative general principle of res judicata, referred to in 37 decisions (four pcij and 33 icj decisions). Following res judicata were the procedural general principle that the jurisdiction of the Court depends on the consent of Parties, mentioned in 33 decisions (five pcij and 28 icj decisions) and the interpretative general principle of good faith, mentioned in 31 decisions (three pcij and 28 icj decisions). The pcij ascertained the total of 64 general principles. Out of these 64, 36 (or 40.6 per cent) were recurrent general principles. The Court referred to 15 recurring general principles in three decisions or more. In the pcij’s jurisprudence, the same general principle does not appear in more than six decisions. The icj ascertained the total of 130 general principles, 38 of which appear also in the pcij’s jurisprudence. Out of the 130 general principles, 74 (or 56.9 per cent) are recurrent general principles. 55 recurrent general principles submissions’”, quoting Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.)). 133 Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion [1987] i.c.j. 18, at ¶27 (27 May).

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Research Methodology and Statistics PCIJ

ICJ

15(23.44%)

55(41.54%) 56(43.85%)

38(59.38%) 11(17.19%)

Non-recurrent Mentioned in 2 decisions Mentioned in 3 or more decisions

19(14.62%)

Figure 6.3 General principles’ recurrence at pcij and icj

(74.3 per cent of all recurrent general principles) are mentioned in three or more decisions. 6.2.2 Court Categories There are two approaches to analysing general principles ascertained between 1922 and 2018. The first approach distributes general principles in two categories, namely, the pcij category and icj category. However, such distribution leads to confusion because the adding up the total of 64 general principles ascertained by the pcij and the 130 general principles ascertained by the icj does not account for the 38 general principles that overlap between the two courts and raises the total number of general principles to 194 instead of 156. The second approach accounts for the 38 overlapping general principles by creating an independent (third) category, identified here as the ‘pcij + icj’ category. Adding a third category balances the distribution of the general principles among the courts: instead of 64 general principles, the pcij category in the second approach consists of 24 general principles (64 minus 38). These 24 general principles were referred to only in the pcij’s jurisprudence, and the corresponding category is accordingly labelled as the ‘pcij only’ category. Similarly, the icj category consists of 92 general principles (130 minus 38) that the icj ascertained anew. These 92 general principles were not mentioned in the pcij’s jurisprudence. Thus, this category is accordingly referred to as the ‘icj only’ category. The statistics provided in the remainder of this chapter follow the second approach that distributes the 156 general principles into three categories, namely, the pcij + icj category (encompassing 38 general principles), the ‘pcij

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Chapter 6 26(16.67%)

38(24.36%)

92(58.97%) PCIJ only ICJ only PCIJ + ICJ

Figure 6.4 General principles at the pcij and icj

only’ category (encompassing 24 general principles) and the ‘icj only’ category (encompassing 92 general principles). Pursuant to this categorisation, 16.7 per cent of all general principles belong to the ‘pcij only’ category, 59 per cent to the ‘icj only’ category and 24.4 per cent belong to the ‘pcij + icj’ category. Although very unlikely, there is a theoretical possibility that the icj in its subsequent jurisprudence retroactively attaches the prefix ‘principle’ to a norm (‘other rule’) ascertained by the pcij, which would increase the number of overlapping general principles while reducing the ‘pcij only’ category. Analysing 156 general principles through the ‘Cube’ provides an array of ­possible comparisons among the general principles according to their type (substantive, procedural, and interpretative) and underpinnings (domestic, international, and judicial). An additional option is to compare the type and underpinning of general principles in the context of the three Court categories (‘pcij only’, ‘icj only’ and ‘pcij + icj’). The text below analyses general principles through all these three parameters, namely, the type, the underpinning and the three Court categories. The working sheet with the specifics of each of the 156 general principles (type, underpinning, recurrence, Court and topic) is available in Appendix 2. 6.2.3 Type Out of the total of 156 general principles, 59.6 per cent (93) are substantive, 26.3 per cent (41) procedural and 14.1 per cent (22) interpretative. The majority of the substantive general principles were new in the icj’s jurisprudence (the ‘icj only’ category), amounting to 65.6 per cent of all

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Research Methodology and Statistics 22(14.1%)

41(26.28%) 93(59.62%)

Substantive Procedural Interpretative

Figure 6.5 Types of general principles

s­ ubstantive general principles. Each of the ‘pcij only’ and the ‘pcij + icj’ categories contains 17.2 per cent of the substantive general principles. Similarly, 61 per cent of all procedural general principles were ascertained only by the icj, while 29.3 per cent overlapped between the two courts. The ‘pcij only’ category comprises 9.7 per cent of all procedural general principles. 45.4 per cent of all interpretative general principles overlapped between the two Courts, while the ‘icj only’ and the ‘pcij only’ each encompassed 27.3 per cent of all interpretative general principles. The vast majority of all substantive and procedural general principles provided in the Digest were ascertained solely in the icj jurisprudence. Interestingly, the icj ascertained fewer new interpretative general principles in its 70 years of jurisprudence than the pcij did in its 18 years of operation. The icj ascertained anew 45 per cent of all interpretative general principles and borrowed 10 per cent of interpretative general principles from the pcij. The icj identified anew (‘icj only’ category) the majority of all substantive (at 66 per cent) and procedural (at 61 per cent) general principles. Procedural general principles were the type that mostly overlapped in the pcij and the icj jurisprudence; 29 per cent of all procedural general principles were relied upon by both Courts. In comparison, the pcij and icj had in common 17 per cent of all substantive and 10 per cent of all interpretative general principles. General principles that feature least prominently in the ‘icj only’ category and were least borrowed among the types of general principles from the pcij’s

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Chapter 6 Substantive

16 (17.2%)

Procedural 16 (17.2%)

12 (29.27%)

4 (9.76%)

25 (60.98%) 61 (65.59%)

Interpretative 6 (27.27%) 10 (45.45%) pcij only icj only pcij + icj

6 (27.27%) Figure 6.6 General principles’ type by court category (1/2)

jurisprudence are the interpretative ones. The interpretative type of general principles was not as popular at the icj as they were at the pcij, perhaps because some of the general principles of treaty interpretation were codified in the 1969 Vienna Convention on the Law of Treaties. General principles that feature least prominently in the ‘pcij only’ category were the procedural general principles (at 10 per cent), which indicates that the icj – while ascertaining many new procedural general principles (part of the ‘icj only’ category) – was also heavily reliant on those ascertained by the pcij (part of the ‘pcij + icj’ category). In contrast, 45 per cent of all interpretative general principles belong to the ‘pcij only’ category, which means that they have not yet found their place in the icj jurisprudence. Another set of results emerges when comparing the types of general principles as belonging to each of the three Court categories (‘pcij only’, ‘icj only’ and ‘pcij + icj’) against the total number of general principles for each

225

Research Methodology and Statistics pcij only

icj only 6 (6.52%)

6 (23.08%) 25 (27.17%)

4 (15.38%) 16 (61.54%)

61 (66.3%)

pcij + icj 10 (26.32%)

6 (42.11%) Substantive Procedural Interpretative

12 (31.58%) Figure 6.7 General principles’ type by court category (2/2)

type, namely, 93 substantive, 41 procedural, and 22 interpretative general principles. Figure 6.7 demonstrates that substantive general principles were most predominant among the general principles in the ‘icj only’ category, and least relied upon in the ‘pcij + icj’ category. The proportion of procedural general principles was highest in the ‘pcij + icj’ category (at 32 per cent) and lowest in the ‘pcij only’ category, which points to the fact that the icj borrowed a substantial number of procedural general principles that the pcij had ascertained in its jurisprudence. Interpretative general principles were featured most prominently in the ‘pcij + icj’ category, followed immediately by the ‘pcij only’ category. 6.2.4 Underpinning Out of all 156 general principles ascertained in the Court’s jurisprudence, only one (representing 0.6 per cent of all general principles) had only a domestic

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Chapter 6 1 (0.64%)

18 (11.54%) 44 (28.21%) Domestic International Judicial Mixed

93 (59.62%) Figure 6.8 General principles’ underpinning

underpinning.134 The majority of general principles (at 59 per cent) had a ­judicial underpinning, 38.2 per cent of general principles had an international ­underpinning and 11.5 per cent of all general principles had a mixed (international and judicial) underpinning. The pcij ascertained 26 general principles that were not later used by the icj (belonging to the ‘pcij only’ category). Out of these 26, the pcij ascertained only one general principle with a domestic underpinning (representing 3.8 per cent of the total of 26), ten general principles with an international underpinning (38.7 per cent), 12 general principles with a judicial underpinning (46.1 per cent) and three general principles with a mixed (international and judicial) underpinning (11.5 per cent). The icj identified 92 general principles anew (part of the ‘icj only’ category). The icj did not ascertain any general principle with a domestic underpinning. Out of the 92, 24 general principles have an international underpinning (26.1 per cent), 60 general principles have a judicial underpinning (65.2 per cent) and eight general principles have a mixed underpinning (8.7 per cent of the total 92 general principles). 134 The only general principle with a domestic underpinning identified in this study is the general principle of the territoriality of domestic criminal law. “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 20 (7 Sept.). This is not to say that the Court did not invoke domestic law in ascertaining notions that were not classified as general principles in the Court’s jurisprudence. For example, the Court in the same case noted that “it does not appear that the States concerned have objected to criminal proceedings in respect of collision cases before the courts of a country other than that the flag of which was flown, or that they have made protests [… the] development of English case-law tends to support the view that international law leaves States a free hand in this respect”. Ibid., at 29–30.

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Research Methodology and Statistics

The majority (55 per cent) of the 38 general principles that the pcij and icj had in common have a judicial underpinning. Out of the 38, ten (26.3 per cent) were general principles with an international underpinning and seven with a mixed underpinning (18.4 per cent). The general principle with a domestic underpinning ascertained by the pcij had not been relied upon by the icj. Therefore, the ‘pcij + icj’ category (like the ‘icj only’ category) does not encompass any general principle with a domestic underpinning. The most prominent underpinning across all three Court categories was the judicial one. The highest percentage of general principles with a judicial underpinning finds its place in the ‘icj only’ category, at 92 general principles ascertained in this category (or 65 per cent). 55 per cent of all general principles in the ‘pcij + icj’ category had a judicial underpinning. Among all general principles in the ‘pcij only’ category, 46 per cent had a judicial underpinning. Although at 46 per cent – the lowest percentage among the three Court ­categories – general principles with judicial underpinning still ranked pcij only 3 (11.54%)

icj only

1 (3.85%)

8 (8.7%) 24 (26.09%) 10 (38.46%)

12 (46.15%) 60 (65.22%)

pcij + icj 7 (18.42%)

10 (26.32%) Domestic International Judicial International & Judicial

21 (55.26%) Figure 6.9 General principles’ underpinning by court category (1/2)

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Chapter 6 International

Judicial 21 (22.58%)

10 (22.73%)

10 (22.73%)

12 (12.9%)

60 (64.52%)

24 (54.55%) Mixed 3 (16.67%) 7 (38.89%)

pcij only icj only pcij + icj

8 (44.44%) Figure 6.10

General principles’ underpinning by court category (2/2)

8 per cent higher than the general principles with an international underpinning in the same (‘pcij only’) category. The ‘pcij only’ category is the only Court category that contains a general principle with a domestic underpinning. The only general principle with a domestic underpinning at the pcij represented 4 per cent of all general principles in the ‘pcij only’ category. Compared across the Court categories, the international underpinning was most prominent in the ‘pcij only’ category (at 38 per cent), followed by the ‘icj only’ and ‘pcij + icj’ categories (both at 26 per cent). Mixed (international and judicial) underpinning was most popular in the ‘pcij + icj’ category, at 19 per cent of general principles ascertained in this category, followed by the ‘pcij only’ category (at 12 per cent). Out of all general principles in the ‘icj only’ category only 9 per cent have a mixed underpinning. More than half of all general principles in the ‘icj only’ and ‘pcij + icj’ categories have a judicial underpinning. This demonstrates that the icj in 50 per cent of the instances when it ascertains a general principle does not rely on any basis other than its own judicial discretion and precedent.

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The icj relies less on any external basis when ascertaining general principles as compared to the pcij. This may be so for a number of reasons, namely, because the icj ascertained overall more general principles, because it has operated longer than the pcij did and because the diversity of the cases brought before it required the development of new areas of international law that the icj developed by relying on general principles (in particlular, by relying on general principles with a judicial underpinning). The ‘pcij only’ category contains the smallest proportion of the general principles with a judicial underpinning. Compared to the icj, the pcij relied more frequently on external evidence in ascertaining general principles. A relatively high proportion of general principles with a mixed underpinning in the same category suggests that once the pcij based a general principle on a particular treaty or another international instrument (i.e., international underpinning), the Court did not rely on the same basis when relying on it again; instead, in ascertaining the same general principle the Court referred to its precedents (equivalent to the judicial underpinning). 6.2.5 Type vs. Underpinning Classifying general principles in accordance with the characteristics of the ‘Cube’ produces measurable data (presented in the Worksheet in Appendix 2) that enable the comparison of two or more characteristics. This section compares the general principles’ types (substantive, procedural and interpretative) with their underpinnings (domestic, international and judicial). Out of the 156 general principles ascertained by the Court between 1922 and 2018, 93 are substantive general principles. Out of all 93 substantive general principles, 40.9 per cent have an international underpinning, 48.4 per cent ­judicial underpinning and 10.7 per cent have a mixed underpinning. The only general principle with a domestic underpinning (ascertained by the pcij) was a substantive general principle and represents 1.1 per cent of all (93) substantive general principles ascertained by both Courts. Among the 41 procedural general principles, 12.2 per cent had an international underpinning, 73.2 per cent a judicial underpinning, and 14.6 per cent had a mixed underpinning. Out of all 22 interpretative general principles, 9.1 per cent had an international underpinning, 81.8 per cent a judicial underpinning and 9.1 per cent a mixed underpinning. Most of the general principles with an international underpinning were of a substantive type (at 40 per cent), compared to 12 per cent procedural and 9 per cent interpretative general principles with an international underpinning. Most of the general principles with a judicial underpinning were procedural and interpretative (at 82 per cent and 85 per cent, respectively). ‘Only’ 48 per cent of all substantive general principles had a judicial underpinning.

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Chapter 6 Substantive 10 (10.64%)

Procedural

1 (1.06%)

6 (14.63%)

5 (12.2%)

38 (40.43%)

45 (47.87%) 30 (73.17%)

Interpredative 2 (9.09%)

2 (9.09%)

Domestic International Judicial Mixed

18 (81.82%) Figure 6.11

Comparing general principles’ type and underpinning

Most of the general principles with a mixed underpinning were of the substantive type (at 11 per cent), compared to 3 per cent procedural and 9 per cent interpretative general principles that had a mixed underpinning. The higher proportion of substantive general principles with an international underpinning (as opposed to substantive general principles with a judicial or a mixed underpinning) demonstrates that the Court mostly (and consistently) relies on international instruments (treaties or other documents) in regulating States’ conduct. The ascertainment of procedural and interpretative general principles – both with the highest percentage of general principles with a judicial underpinning – seems to be mostly reserved to the Court’s ­discretion, rather than to the Court’s reliance on international instruments. Over 80 per cent of all procedural and interpretative general ­principles were ­identified without the Court’s reference to any basis or evidence of their existence or content, save for the Court’s precedent.

231

Research Methodology and Statistics Substantive

Procedural 6 (16.22%)

9 (24.32%)

1 (20%)

3 (60%)

1 (20%)

22 (59.46%)

Interpretative

1 (50%)

Figure 6.12

1 (50%)

pcij only icj only pcij + icj

General principles with an international underpinning: comparing type and court category

International underpinning is slightly more prominent in relation to procedural general principles when compared to the interpretative general principles. This may be due to the Court’s reliance on its Statute in ascertaining ­procedural general principles that regulate the Court’s and States’ conduct before the Court. General principles’ types and underpinnings may also be compared to the three Court categories. For example, figure 6.12 demonstrates the distribution of the general principles with an international underpinning (44 general principles in total) according to their types and the three Court categories. Most of the substantive general principles with an international underpinning were ascertained only by the icj (at 59.5 per cent), and most of the procedural general principles with an international underpinning were ascertained only by the pcij. Out of the two interpretative general principles with an international underpinning, one was identified solely by the pcij. Out of the two interpretative general principles with an international underpinning, one was identified solely by the PCIJ and one solely by the icj.

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Chapter 6 Substatntive

6 (13.33%)

Procedural 1 (3.33%)

6 (13.33%) 7 (23.33%)

22 (73.33%)

33 (73.33%)

Interpretative 5 (27.78%)

8 (44.44%)

pcij only icj only pcij + icj

5 (27.78%) Figure 6.13

General principles with a judicial underpinning: comparing type and court category

In the ‘pcij only’ category most of the general principles with an international underpinning are procedural, while in the ‘icj only’ category most general principles with an international underpinning are substantive. Figure 6.13 considers the general principles with a judicial underpinning (93 general principles in total) and compares them in relation to the three underpinnings and the three Court categories. The majority of the substantive and procedural general principles with a judicial underpinning were ascertained only by the icj. Most of the interpretative general principles with a judicial underpinning were ascertained by both the pcij and the icj. Like figures 6.12 and 6.13, figure 6.14 demonstrates the demographic of the general principles with a mixed underpinning (18 general principles in total),

233

Research Methodology and Statistics Substantive

Procedural

1 (10%) 3 (30%)

2 (33.33%)

4 (66.67%)

6 (60%)

Interpretative

pcij only icj only pcij + icj only

2 (100%) Figure 6.14

General principles with a mixed underpinning: comparing type and court category

relative to their type and the three Court categories. Most of the substantive general principles with a mixed underpinning were ascertained only in the icj’s jurisprudence, while most of the procedural general principles and all interpretative general principles with a mixed underpinning were ascertained by both Courts (the ‘pcij + icj’ category). Whatever the categories or classifications of general principles are, their existence facilitates a more objective analysis of Article 38(1)(c) norms. Considering general principles as substantive, procedural and interpretative on the one hand, and attributing to them the three underpinnings (domestic, internatio­ nal and judicial) on the other hand, enabled a comparison among the different expressions of the same source of international law. Whether substantive, procedural or interpretative – whether pioneering or recurring – general principles do have a place in the Court’s jurisprudence.

Chapter 7

General Principles Ascertained by the Permanent Court of International Justice (1922–1940) The Court […] is at liberty to adopt the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law.1 7.1 Introduction Established in 1921, the Permanent Court of International Justice (pcij) became the first permanent international court for the then 63 members of the League of Nations.2 In its 18-year-long jurisprudence, the pcij ascertained 64 general principles in 38 of its decisions (i.e., advisory opinions and judgments). This chapter provides an overview of the pcij’s reliance on general principles and describes 16 substantive, nine procedural and eight interpretative general principles ascertained by the Court between 1922 and 1940, before concluding by briefly considering the pcij’s reliance on ‘other rules’. The 33 general principles discussed here are a representative sample of the general principles ascertained by the pcij and are – together with the remainder of the pcij-ascertained general principles – further outlined in the Digest. The analysis provided in this chapter is based solely on the Court’s jurisprudence and is not drawn from the writings of scholars. Some of the selected general principles appear also in the jurisprudence of the International Court of Justice (icj). However, for the purposes of this chapter, their description is here limited only to that in the pcij’s jurisprudence.

1 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 16 (30 Aug.). 2 The Court effectively operated between 1922 and 1940, giving its last decision in 1939 and last order a year later. It formally ceased to exist on 19 April 1946, a few months after the establishment of the icj. Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 25 (26 May).

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_009

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235

Overview of the pcij’s Reliance on General Principles

General principles occupied an important position in the Court’s jurisprudence; the Court sometimes considered them immediately after referring to treaties. For example, the Court in the Rights of Minorities in Upper Silesia case ­considered the validity of treaties in light of general principles.3 Similarly, in the Oscar Chinn and Jurisdiction of the Courts of Danzig, decisions the Court considered treaty obligations vis-à-vis the “general principles of international law”.4 The pcij ascertained the total of 64 general principles, 40.6 per cent of which appear in two or more decisions (i.e., they are recurrent general principles).5 For example, the Court in the Polish Postal Service in Danzig advisory opinion restated the general principle of res judicata by noting that “the principles laid down in its Opinions Nos. 8 and 9 as to the final character of decisions under international law [res judicata], apply to any final decision under the aforesaid provisions”.6 Among others, the Court also recurred the general principle of reparation,7 which was cited in five pcij decisions. When restating a general principle, the Court sometimes modified its name. For example, in Oscar Chinn it referred to the general principle of equal treatment,8 while in Minority Schools in Albania the Court also referred to it as “the principle of identical treatment in law and in fact”.9 The pcij referred to general principles in 64.4 per cent of its decisions. In its 38 decisions that refer to one or more general principles, the pcij ascertained 32 substantive, 16 procedural and 16 interpretative general principles.

3 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 33 (26 Apr.) (noting that the Minorities treaty is in line with the principles underlying it). 4 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 79 (12 Dec.) (referring to “the obligations resulting from the general principles of international law”); Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 24 (3 Mar.). The Court’s reference to ‘general principles of international law’ could be interpreted either as a reference to Article 38(3) norms of the pcij Statute or the modality of ‘principles’ present in international law. 5 Some of the general principles ascertained by the pcij became recurrent only in the icj’s jurisprudence. For example, while the general principle of estoppel is not recurrent in the pcij’s jurisprudence, the icj referred to it in ten decisions. Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 38–39 (12 July). 6 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 24 (16 May). 7 See, e.g., Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 61 (13 Sept.). 8 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 86 (12 Dec.). 9 Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 19 (6 Apr.).

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21 (35.59%)

38 (64.41%)

Decisions referring to general principles Decisions not referring to general principles

Figure 7.1 Decisions referring to general principles in PCIJ jurisprudence (1922–1940)

Among the most often recurred substantive general principles in the pcij jurisprudence were the freedom of navigation (on seas and rivers), reparation, respect for vested rights, State independence, State succession and equal treatment. Popular procedural general principles regulated the Court’s jurisdiction and the Parties’ standing before it. One of the most often recurred procedural general principle was that of the exhaustion of domestic remedies. The Court’s interpretative general principles aided it in interpreting both treaties and other international instruments. Interestingly, the pcij ascertained more new interpretative general principles in its 18-year jurisprudence than the icj has done in its 70-year jurisprudence. Some of the most often recurred interpretative general principles were res judicata, rebus sic stantibus, general principle of reciprocity, general principles related to treaty interpretation, and ejus est interpretare legem cujus condere.

16 (25%)

32 (50%)

16 (25%) Substantive Procedural Interpretative

Figure 7.2 Types of general principles (1922–1940)

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The pcij’s jurisprudence points to two thresholds for ascertaining the existence of general principles, namely, ‘general’ and ‘universal’ acceptance. For example, the Court in Factory at Chorzów noted that “a principle [was] generally accepted in the jurisprudence of international arbitration, as well as by municipal courts”.10 Similarly, in Peter Pázmány University it recognised that “[t]he Article [191 of the Treaty of Trianon] applies the ­principle of the generally accepted law of State succession”.11 The Court in Settlers of German Origin in Poland also noted that a particular general principle had been confirmed by “an almost universal opinion and practice”.12 Similarly, in “Lotus” it was not able to ascertain a general principle because the norm had “not [been] universally accepted”.13 These thresholds of general and universal acceptance are mostly not related to the Court’s consideration of domestic laws; instead they indicate a general principle’s acceptance on the international level – be it in international jurisprudence, international instruments or State practice vis-à-vis the international community.14 For example, the Court in the Electricity Company of Sofia and Bulgaria order noted that a particular general principle was “universally accepted by international tribunals and likewise laid down in many conventions to which Bulgaria has been a party”.15 Similarly, in the Factory at Chorzów case it said that the general principle of restitutio in integrum “seems to be established by international practice and in particular by the decisions of arbitral tribunals”.16

10 11 12 13 14

15 16

Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 31 (26 July) (emphasis added). Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 237 (15 Dec.) (emphasis added). Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6, at 36 (10 Sept.) (emphasis added; referring to the general principle that in a case of change of sovereignty private rights acquired under existing law do not cease to exist). “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 27 (7 Sept.) (emphasis added; referring to the “principle of the exclusive jurisdiction of the country whose flag the vessel flies”). See e.g., Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 30 (21 Nov.) (alluding to State practice when noting that the general principle of unanimity was “in accordance with the unvarying tradition of all diplomatic meetings or conferences”; emphasis added). Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.) (emphases added). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 47 (13 Sept.) (emphasis added). See also Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 227–

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The conduct and submissions of States did not play a meaningful role in the Court’s ascertainment of general principles. The pcij sometimes modified, rejected or did not elaborate on the ‘principles’ that the States invoked.17 States were also not able to change the general principles that the pcij had already ascertained. For example, Switzerland in the Free Zones of Upper Savoy and Gex case attempted to limit certain general principles ascertained by the pcij by noting that the general principles applied in so far as the Parties’ consent did not provide otherwise.18 The pcij rejected this assertion by noting that Switzerland’s unilateral declaration was binding only on Switzerland and did not create an international obligation for experts.19 In other words, Switzerland’s unilateral declaration did not modify the general principles ascertained by the Court as binding on the international experts and the international community. The Court did not always apply the general principles that it ascertained in a particular case. For example, the Court in Oscar Chinn ascertained but did not apply the general principles of equal treatment and vested rights.20 Also in Prince von Pless Administration, it chose not to rely on the general principle of the exhaustion of domestic remedies.21 Over half of the general principles ascertained by the pcij (33 out of 64) have a judicial underpinning. 20 general principle have an international underpinning, and ten a mixed (international and judicial) underpinning. Only one general principle ascertained in the pcij jurisprudence has a domestic underpinning. The Court ascertained general principles with an international underpinning by relying on the Covenant of the League of Nations, its Statute and other treaties. For example, by relying on Article 41(1) of its Statute, Article 61(4) of its Rules, international jurisprudence and the “many conventions to which Bul228, 248 (15 Dec.) (referring to Mixed Arbitral Tribunal decisions in relation to the general principle of reparation). 17 In Polish War Vessels, the pcij declined to rely on ‘principles’ relied upon by Poland because the text of the applicable treaties was clear. Access to, or Anchorage in, the port of Danzig, of Polish War Vessels, Advisory Opinion [1931] p.c.i.j. (ser.A/B) No. 43, at 144–145 (11 Dec.) (noting that “[it] is not prepared to accept the view that these principles, relied upon on the part of Poland, are sufficient to support the claim which she is now advancing”). 18 Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 170 (7 June). 19 Ibid. (the Court regarded the Swiss declaration “as binding on Switzerland”). 20 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 86–88 (12 Dec.). 21 Prince von Pless Administration, Order, [1933] p.c.i.j. (ser.A/B) No. 52, at 16 (4 Feb.).

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garia has been a party”22 the Court ascertained the general principle that if the circumstances so require the respective rights of either Party should be reserved. Similarly, the Court noted that the general principle of freedom of navigation on rivers formed part of the Paris Peace Treaty,23 while the general ­principle of State succession formed part of the Treaties of Versailles and Trianon.24 Other treaties that, according to the Court, embodied certain general principles were Protocol xii of the Treaty of Lausanne,25 the Geneva Convention,26 and the Convention of Saint Germain.27 Among the quasi-international instruments that provided the basis for the Court’s ascertainment of general principles were the Definitive Statute of the Danube,28 some State declarations and decrees29 and recommendations of the Assembly of the League of Nations.30 An exceptional document was the Constitution of Danzig, which – unlike other constitutions – provided an international (and not a domestic) underpinning to general principles.31

22 23 24

25 26 27 28 29 30 31

Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.). See, e.g., Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6, at 38 (10 Sept.); Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 40 (8 Dec.). See, e.g., Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 41 (25 May); Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 237 (15 Dec.). See, e.g., Mavrommatis Jerusalem Concessions, Judgment [1925] p.c.i.j. (ser.A) No. 5, at 48 (26 Mar.). See, e.g., Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.). See, e.g., Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 79 (12 Dec.). Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 64 (8 Dec.). See, e.g., Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 116 (7 June) (referring to the “Declarations of March 20th, 1815”). Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 7–8 (6 Apr.). The Free City of Danzig was not a State but a semi-autonomous territory. Its constitution was regulated by the League of Nations, and its courts were competent to operate pursuant to international agreements. See, e.g., Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 65, at 50 (4 Dec.). Cf. Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, 5, 11, 13 (6 Apr.) (considering the provisions of the Albanian constitution).

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The only general principle with a domestic underpinning ascertained by the pcij was that of the territorial character of criminal law, ascertained in the “Lotus” decision. The Court noted that [t]hough it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State.32 The Court also briefly mentioned domestic law in relation to the general principle of estoppel by noting that it is “known in Anglo-Saxon law”.33 However, due to the brevity of this statement, estoppel was not (although it could have been) considered as a general principle with a domestic underpinning. None of the subsequent ten icj decisions that refer to the general principle of estoppel invokes domestic laws in its ascertainment. The Court did not often invoke ‘domestic principles’. ‘Domestic principles’, unlike general principles, are not part of international law but are merely norms in the modality of ‘principles’ (as opposed to the modality of ‘rules’) that exist in domestic laws and are applicable on the domestic level.34 An exceptional case, where the Court might have relied on ‘domestic principles’ was in the Consistency of Certain Danzig Legislative Decrees advisory opinion. The Court in this advisory opinion referred to the “principles of the Constitution of the Free City [of Danzig]”.35 Although it prima facie referred to ‘domestic principles’, the Danzig Constitution was in certain respects considered to be an international instrument.36 The Court’s references to these constitutional principles was 32 33 34 35 36

“Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 20 (7 Sept.). Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 38, 39 (12 July) (noting that “it is quite clear that no sufficient basis has been shown for applying the principle in this case”). Competence of the ilo to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] p.c.i.j. (ser.B) No. 13, at 18–19 (23 July). Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 65, at 54 (4 Dec.). The Danzig Constitution was drafted in agreement with the High Commissioner appointed by the League of Nations. It had to be approved by the League of Nations and could be changed only by the League of Nations. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 65, at 49 (4 Dec.). See also Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 26 (3 Mar.) (noting that the jurisdiction of the Danzig courts was established by international agreements). But see Treatment of Polish Nationals and Other

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most likely a reference to quasi-‘domestic principles’, although it could also have been a reference to the modality of ‘principles’ within an international instrument (Article 38(1) of the pcij Statute)37 or to general principles with an international underpinning (Article 38(3) of the pcij Statute).38 7.3

Selected Substantive General Principles

This section describes 16 out of the total of 32 substantive general principles that appear in the pcij’s jurisprudence between 1922 and 1940. These 16 general principles are divided into two major topics, namely, the general principles that regulate inter-State conduct and those that regulate non-State actors. Nine of the substantive general principles discussed here have an international underpinning, six a judicial underpinning and one has a mixed underpinning. While some substantive general principles, such as the general principles of State independence, sovereignty, freedom of trade and navigation, confirm State freedoms, other substantive general principles – like the general principles of vested rights and the general principle of international responsibility – limit the States’ conduct vis-à-vis the international community. 7.3.1 General Principles That Regulate State Conduct Among the nine general principles presented here that regulate State conduct are the general principles of State independence, freedom of trade and States’ entitlement to regulate their own currency, freedom of seas and the freedom of navigation, international responsibility and reparation, State succession and the general principle of rebus sic stantibus. 7.3.1.1 General Principle of State Independence The general principle of State independence (sometimes also considered as the general principle of State sovereignty or even as the general principle of

37

38

­Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 23–24 (4 Feb.) (noting that the Danzig Constitution was an international instrument only between Danzig and the League of Nations, but not also between Danzig and other States). Article 38(1) of the pcij Statute corresponds to Article 38(1)(a) of the icj Statute and refers to “[i]nternational conventions […] establishing rules expressly recognized by the contesting States”. Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 38(1). Article 38(3) of the pcij Statute corresponds to Article 38(1)(c) of the icj Statute and refers to “[t]he general principles of law recognized by civilized nations”. Ibid., art. 38(3).

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territorial integrity) is a substantive general principle with an international underpinning.39 This general principle appears in three pcij decisions, delivered between 1923 and 1932. The pcij referred to it in the Status of Eastern Carelia advisory opinion as a “fundamental principle of international law”,40 and found that this general principle ensures that States are not coerced into dispute settlement procedures. The Court noted that [i]t is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.41 Based on the general principle of State independence, Russia, which was not a member of the League of Nations in 1923 and had not consented to the Covenant, could not be coerced into dispute settlement procedures that were provided for in the Covenant of the League of Nations.42 The Court invoked the general principle of State independence also in the Customs Regime between Germany and Austria advisory opinion and interpreted it to encompass economic, political and financial independence.43 In this case, the Court considered this general principle as related to the Treaty of Saint Germain, which additionally provided that “the independence of Austria was inalienable, except with the consent of the Council of the League of Nations”.44 Similarly, the Court in Free Zones of Upper Savoy and the District of Gex noted that France’s sovereignty “is to be respected in so far as it is not limited by her international obligations”45 and “that in case of doubt a limitation of [its] sovereignty must be construed restrictively”.46

39 The general principle of State independence is classified in the Digest under number 13. 40 Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5, at 27 (23 July). 41 Ibid. 42 Ibid., at 28 (noting that Russia did not consent to the Covenant of the League of Nations). 43 Customs Regime between Germany and Austria, Advisory Opinion [1931] p.c.i.j. (ser.A/B) No. 41, at 45 (5 Sept.). 44 Ibid. 45 Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 166 (7 June). 46 Ibid., at 167.

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7.3.1.2 General Principle of Freedom of Trade Another general principle that favours States’ freedoms is the general principle of freedom of trade.47 This substantive general principle has an international underpinning, and appears in only one pcij decision, namely, in the Oscar Chinn case. In Oscar Chinn, the Court ascertained this general principle by relying on the Annex to Article 1 of the Treaty of Saint-Germain and noted that a monopoly of State companies that precludes other companies from exercising their rights violates this general principle. However, this general principle of freedom of trade tolerates a situation where “a merchant, a ship-owner, a manufacturer or a carrier [would …] operat[e] temporarily at a loss if he believes that by so doing he will be able to keep his business going”.48 7.3.1.3

General Principle That a State Is Entitled to Regulate Its Own Currency Another general principle that ensures States’ freedoms is also the general principle that a State is entitled to regulate its own currency.49 This substantive general principle has a judicial underpinning, and was mentioned in the twin Serbian and Brazilian Loans cases. In deciding these cases, the Court observed that this “generally accepted principle that a State is entitled to regulate its own currency”50 allows for the currency to be governed by domestic law (in this instance French law), “so long as it does not affect the substance of the debt to be paid and does not conflict with the law governing such debt”.51 7.3.1.4

General Principles of Freedom of the Seas and Freedom of Navigation The Court confirmed that international law grants States freedoms with the general principles of freedom of seas52 and freedom of navigation.53 While 47 48 49 50 51 52 53

The general principle of freedom of trade is classified in the Digest under number 39. Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 85 (12 Dec.). The general principle of freedom of States to regulate their currency is classified in the Digest under number 16. Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21, at 122 (12 July); Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 44 (12 July). Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21, at 122–123 (12 July); Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 44 (12 July). The general principle of freedom of the seas is classified in the Digest under number 58. The general principle of freedom of navigation is classified in the Digest under number 60.

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the general principle of freedom of the seas is a substantive one with a judicial underpinning, the general principle of freedom of navigation is a substantive one with an international underpinning. Only the latter was repeated in the pcij jurisprudence (mentioned in three cases decided between 1927 and 1934), whereas the former was considered only in the 1927 “Lotus” case. In “Lotus”, the Court ascertained the general principle of the freedom of the seas by noting that the territorial sovereignty of States does not extend to the high seas and that no State, except the flag State of the ship, may exercise its jurisdiction on foreign vessels on the high seas. The Court also noted that it would not have applied the general principle of the freedom of the seas if France had demonstrated the existence of a customary rule that “established the exclusive jurisdiction of the State whose flag was flown”.54 The Court ­explained that [a] corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so.55 The pcij ascertained the general principle of freedom of navigation in Jurisdiction of the European Commission of the Danube as one of “the Vienna ­principles relating to the internalization of rivers”.56 Developed after the 1815 Congress of Vienna, this general principle initially encompassed the points from where the river became navigable to its mouth, prohibited restrictions on commerce, and provided that States regulate navigation in the shared navigable rivers in accordance with their common interests.57 However, the Court observed that this general principle had since evolved to encompass also the regime of ports and tributaries of the river58 and came to apply also to navigations on the high seas, allowing “the ships of all nations [… to] touch at all ports”.59 In Oscar Chinn the Court added that the general principle of freedom of navigation, besides “compris[ing] freedom of movement for vessels, freedom 54 “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10, at 25 (7 Sept.). 55 Ibid. 56 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 40 (8 Dec.). See also Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 26–29 (10 Sept.). 57 See, e.g., Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 38 (8 Dec.). 58 See, e.g., ibid., at 65. 59 Ibid., at 57.

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to enter ports, [… also enables] mak[ing] use of plant and docks, to load and unload goods and to transport goods and passengers”.60 Although interpreting this general principle in light of the Treaty of Saint Germain, the Court concluded that freedom of navigation is a “conception universally accepted”.61 7.3.1.5

General Principles of International Responsibility, Reparation and Restitutio in Integrum The general principles that restrict States’ freedoms in international relations are those of international responsibility of States62 and reparation,63 and ­restitutio in integrum.64 All these general principles are substantive with a judicial underpinning. The general principle of reparation is considered here a substantive general principle because its application is not contingent on the procedure before the Court (as it is the case with procedural general principles) – a State was (at the time of the pcij)65 liable for reparation of a treaty breach whether or not the case reaches the Court. The general principles of international responsibility and reparation were both recurred in the pcij’s jurisprudence – the former in two pcij decisions made between 1932 and 1938, and the latter in five pcij decisions delivered between 1927 and 1934 – while the specialised version of the general principle of reparation, namely, the general principle of restitutio in integrum, appears only in the 1928 Factory at Chorzów case. The Court ascertained the general principle of international responsibility in its 1932 Treatment of Polish Nationals in Danzig decision by declaring that it is not the constitution and other laws, as such, but the international obligation that gives rise to the responsibly of the Free City. This is in 60

61 62 63 64 65

Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 83 (12 Dec.) (considering freedom of navigation as “referred to by the Convention [of Saint-Germain]”). Article 5 of the Treaty of Saint Germain provided that “the navigation of the Niger […] shall be entirely free for merchant vessels and for the transport of goods and passengers”. Ibid., at 80. Ibid., at 83. The general principle of the international responsibility of States is classified in the Digest under number 27. The general principle of (the right to) reparation and/or compensation is classified in the Digest under number 41. The general principle of restitutio in integrum is classified in the Digest under number 42. The scope of liability for reparation was expanded in the icj jurisprudence to include violations of any internationally wrongful act, beyond a treaty breach. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶¶152–153 (9 July) (considering reparation for Israel’s seizure and destruction of Palestinian property that was unrelated to a treaty provision).

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c­ onformity with the general principle of the international responsibility of States.66 The Court referred to this general principle again in its 1938 Phosphates in Morocco decision, where the Court established that international responsibility is established when “a definite act [… is] attributable to the State and described as contrary to the treaty right of another State”.67 Although finding that it had no jurisdiction to decide the case, the Court said that State responsibility insures against States breaching their treaty obligation.68 The Court first ascertained the general principle of reparation in Factory at Chorzów, by noting that [i]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable element of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.69 The novelty of the question of reparation in its jurisprudence led the Court to consider whether it was competent to decide on reparation in the first place.70 For lack of any similar prior procedure, Germany also attempted (but did not succeed) to obtain reparation as part of the Court’s decision on provisional measures.71 The general principle of reparation at first covered only treaty breaches. As the Court said in Factory at Chorzów, “[r]eparation […] is the indispensable element of a failure to apply a convention”.72 The pcij also noted that the general principle of reparation, as ascertained by the pcij, consists of three parts, namely, the general principle of restitution in kind (general principle of restitutio in integrum); if restitution in kind is not possible payment of the sum 66

Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 25 (4 Feb.) (emphasis added). 67 Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74, at 28 (14 June). 68 Ibid. 69 Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 21 (26 July). See also Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.). 70 Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, 32–33 (26 July). 71 Factory at Chorzów (Indemnities), Order [1927] p.c.i.j. (ser.A) No. 12, at 11 (21 Nov.); Factory at Chorzów (Indemnities), Germany’s Request for Interim Protection [1927] p.c.i.j. (ser.A) No. 12, at 4 (14 Oct.). 72 Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 21 (26 July).

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corresponding to the value of the restitution in kind; and an additional award or compensation for the damage not covered by restitution in kind or the payment of the value of restitution in kind.73 The Court in Factory at Chorzów also considered the “principles which should serve to determine the amount of compensation due for an act contrary to international law”,74 and ascertained, among other factors, also the general principle of restitutio in integrum. The purpose of restitutio in integrum is to restore the situation that existed before the breach occurred, or, as the Court put it, “[to] wipe out [as far as possible] all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed”.75 The Court also said that this is “[t]he essential principle contained in the actual notion of an illegal act [… and] which seems to be established by international practice and in particular by the decisions of arbitral tribunals”.76 In Factory at Chorzów restitution in kind was not possible.77 The total damage suffered by one of the German companies was the total value of the property, rights and interests, “without deducting the liabilities”.78 The Court found that this general principle obligated Poland to pay Germany compensation also for the loss of earnings. The Geneva Convention – a treaty Poland had breached by expropriating the German companies – provided for the first two forms of reparation (i.e., restitution in kind and payment for the value of the restitution in kind), while the third remedy (damages for loss) was available to Germany as part of the general principle of reparation.79 73 74

Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 47 (13 Sept.). Ibid. The Court “la[id] down the guiding principles according to which the amount of compensation due may be determined”. Ibid., at 46. 75 Ibid. 76 Ibid. at 47. 77 Ibid., at 48. The Court determined that Poland was to receive payment of a sum corresponding to the value of the restitution in kind. In calculating the value of the restitution, the Court included in the calculation the “amount of debts and other obligations for which the injured party is responsible”, but excluded any damage done to third parties. Ibid., at 31. See also Factory at Chorzów (Indemnities), Germany’s Request for Interim Protection [1927] p.c.i.j. (ser.A) No. 12, at 6 (14 Oct.). 78 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 31 (13 Sept.). In estimating the damage, the Court considered “the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed”. Ibid. 79 Ibid., at 47–48 (noting that “[t]o this obligation, in virtue of the general principles of international law, must be added that of compensating loss sustained as the result of the seizure”).

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The Court, by deciding that reparation is to be awarded “in an adequate form”,80 engaged a committee of experts to further determine the amount, conditions and exact calculation of the amount, and said it “reserve[d] the fixing of the amount of this compensation for a future judgment, to be given after receiving the report of experts”.81 However, in Factory at Chorzów it did not have the opportunity to resort to the findings of the expert committee and ­apply the general principle of reparation, because the Parties had meanwhile settled.82 The Court nevertheless clarified that the calculation of reparation in cases of diplomatic protection corresponds to the damage suffered by the subjects of the State that was espousing the claims.83 Germany in Factory at Chorzów claimed reparation from Poland on behalf of two German companies, Oberschleische Stickstoffwerke A.G. and Bayerische Stickstoffwerke A.G. ­Although considering the question of reparation in relation to the damage ­suffered by its nationals and not the State itself, the Court reiterated that reparation does not establish a relationship between a State and the nationals of another State, but is limited to the “international law in force between the two States concerned”.84 The Court discussed reparation also in the Peter Pázmány University and Oscar Chinn decisions, but only in passing.85 7.3.1.6 General Principles of State Succession and Rebus Sic Stantibus The Court also entertained the general principles of State succession86 and rebus sic stantibus.87 Both general principles are substantive with an international underpinning, and both were repeatedly relied upon by the pcij – the former appears in three decisions between 1926 and 1934 and the latter was relied upon by the Court twice, in 1923 and 1932. In the first decision in which the general principle of State succession appears, the Court refers to it in the plural, as “the principles governing State 80 81 82 83 84 85

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Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 21 (26 July). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 64 (13 Sept.) (holding). Factory at Chorzów, Order [1929] p.c.i.j (ser.A) No. 19, at 12–13 (25 May). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 27–29 (13 Sept.). Ibid., at 28. Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 227–228, 248 (15 Dec.) (reserving its decision on matters concerning restitution); Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 88 (12 Dec.) (noting that the question of reparation does not arise). The general principle of State succession is classified in the Digest under number 33. The general principle of rebus sic stantibus is classified in the Digest under number 7.

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succession – principles maintained in the Treaty of Versailles and based on considerations of stability of legal rights”.88 The Treaty of Versailles provided that the “Powers […] acquire all property and possessions situated therein belonging to the German Empire or to the German States”.89 However, the treaty did not state how the ownership of the companies was to be transferred in case of succession. By interpreting Article 256 of the Treaty of Versailles in conjunction with the general principles of State succession, the pcij found that the applicable law is the law applicable at the time of the transfer of sovereignty.90 Similarly, the Court in Peter Pázmány University referred to “the principle of the generally accepted law of State succession”,91 embodied in the Treaty of Trianon. The general principle of rebus sic stantibus, also known as the general principle concerning the duration of the validity of treaties, was first invoked by France in the Nationality Decrees Issued in Tunis and Morocco advisory proceedings. France argued that certain treaties “have lapsed by virtue of the principle known as the clausula rebus sic stantibus”92 and the Court replied that it was “not possible to make any pronouncement upon this point without recourse to the principles of international law concerning the duration of the validity of treaties”.93 France invoked the ‘clausula’ rebus sic stantibus again in Free Zones of Upper Savoy and Gex. As in the Nationality Decrees advisory opinion, the Court did not explain its content, “[because] the French argument fail[ed] on the facts”94 and the Court deemed it “unnecessary […] to consider any of the questions of principle which arise in connection with the theory of the lapse of treaties by reason of change of circumstances”.95 7.3.2 General Principles That Regulate Non-State Actors The five general principles presented here that regulate the non-State actors are the general principles of unanimity, equality of the members regarding the 88

Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 41 (25 May). 89 Treaty of Peace with Germany, 28 June 1919 (Treaty of Versailles), art. 256. 90 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 41 (25 May). 91 Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61, at 237 (15 Dec.). 92 Nationality Decrees Issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 4, at 29 (7 Feb.). 93 Ibid. 94 Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46, at 158 (7 June). 95 Ibid.

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functioning of the League of Nations, equal treatment, vested rights and the general principle that in case of a change in sovereignty, private rights acquired under the existing law do not cease to exist. Non-State actors were also influenced by some of the general principles that regulate State conduct. For example, by relying on the general principle of the freedom of navigation, the Court tasked the European Commission of the Danube with supervision of certain territories that would otherwise be within the States’ jurisdiction.96 Similarly, the general principle of the status quo ante ­bellum97 allowed the Court to clarify that the European Commission’s jurisdiction was the same as before the war and that it did not encompass the port of Braila.98 Ultimately, however, the Court awarded the European Commission the right to regulate the port of Braila, by extending the general principle of freedom of navigation to the regulation of ports. The general principle of freedom of navigation is one of the general principles regulating State conduct. However, it had a major impact on the functioning of the former European Commission. The Court was able to apply this ­general principle, along with another State-regulating general principle (of equal treatment of all flags), to the ports of the Danube and granted the European Commission exclusive jurisdiction over navigation and the power to supervise navigation into and out of the port, and also through the port.99 The general principle of freedom of navigation was also instrumental in determining that another commission – this time the International Commission of the river Oder – had jurisdiction that extended beyond Poland’s territory, although the applicable treaty provision (Article 331 Treaty of Versailles) did not provide for such an extension.100

96

Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 65, 68 (8 Dec.); Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 23 (10 Sept.). 97 The general principle of the status quo ante bellum is classified under Digest number 85. Fellmeth and Horwitz explain that status quo ante bellum refers to “[t]he situation as it existed before an armed conduct occurred, usually with reference to the situation existing before one belligerent seized and occupied foreign or disputed territory”. Fellmeth and Horwitz, Guide to Latin in International Law (Oxford: Oxford University Press, 2009), at 267–268. 98 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 57 (8 Dec.). 99 Ibid., at 65, 67. 100 Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 29 (10 Sept.).

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7.3.2.1

General Principle of Unanimity and General Principle of Equality of the Members in Relation to the Functioning of the League of Nations While the general principle of unanimity is a substantive general principle with an international underpinning,101 the general principle of equality of the members in relation to the functioning of the League of Nations102 is a substantive general principle with a mixed (international and judicial) underpinning. Both general principles were referred to by the pcij only once, however, the latter was mentioned again by the icj in its South West Africa advisory opinion.103 The Court considered both the general principle of unanimity and that of the equality of the League’s members in the Interpretation of the Treaty of Lausanne advisory opinion.104 According to the Court’s interpretation, the general principle of equality provided that all members had the right to vote in adopting the Council’s report, while the requirements of the general principle of unanimity were satisfied also without considering the votes of the interested Parties.105 The Court found that the general principle of equality did not apply in instances when the League had to adopt a report unanimously or where there was a dispute before the Court; those situations were covered only by the general principle of unanimity. Such interpretation of the applicability of these two general principles allowed the Court to safeguard the Council’s decisions in situations when the representatives of the interested Parties would vote against a decision taken by the Council. Although they were not precluded from voting, the interested Parties’ votes would not be counted towards recognising whether there was unanimity among the present members.106

101 The general principle of unanimity is classified under Digest number 51. 102 The general principle of equal rights of members to the functioning of the League of Nations is classified under Digest number 50. 103 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16, at 49 (21 June). 104 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 31–32 (21 Nov.) (noting that the general principle of unanimity was embodied in Articles 15(6)-(7) and 16(4) of the Covenant of the League of Nations). 105 Ibid. In this instance, the interested Parties were Great Britain (Iraq was under its protectorate) and Turkey. See also United Nations, Summaries of Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice, ST/LEG/SER.F./1/Add.4 (2012), at 77. Turkey became a member of the League of Nations in 1932. 106 Ibid., at 31–33.

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7.3.2.2 General Principle of Equal Treatment The general principle of equal treatment (also termed the general principle of equality) is a substantive general principle with an international underpinning.107 The pcij applied this general principle in six decisions delivered between 1923 and 1935, and in different contexts, from considering the treatment of foreigners by the host State, through the equality of members within the same national group to the equal treatment of flags. For example, the Court in Settlers of German Origin in Poland interpreted equality as “the absence of discrimination in the words of the law”108 and noted that “[i]t is contrary to the principle of equality [… to] subject[] the [­German] settlers to a discriminating and injurious treatment to which other [Polish] citizens holding contracts of sale or lease are not subject”.109 The Court applied the general principle of equal treatment against members of the same national group, namely, it considered the status of minorities vis-à-vis the majority of the population that was of the same nationality as the minority in the Certain German Interests in Polish Upper Silesia and Rights of Minorities in Upper Silesia (Minority Schools) decisions. In both decisions, the Court ascertained the general principle of equal treatment on the basis of Article 68 of the 1922 Geneva Convention Concerning Upper Silesia, which provided that minorities are to be accorded the same treatment as the rest of their national group.110 In Oscar Chinn, the Court applied the general principle of equal treatment to members of different national groups: the Court assessed Belgium’s actions towards Belgian companies and the British national, Mr. Chinn. The Court, continuing to consider equal treatment in relation to discrimination, stated that the Treaty of Saint Germain prohibits “discrimination based upon ­nationality and involving differential treatment by reason of their nationality as between persons belonging to different national group”.111 It noted, however, that the general principle as embodied in the Treaty of Saint Germain applies only to those nationals whose governments were Parties to the treaty.112

107 The general principle of equality (also known as the genera principle of equal treatment) is classified under Digest number 56. 108 Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6, at 24 (10 Sept.). 109 Ibid., at 36–37 (10 Sept.). 110 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 43 (26 Apr.); Geneva Convention Concerning Upper Silesia, 15 May 1922, art. 68 (embodying Article 8 of the 1919 Minorities Treaty). 111 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 87 (12 Dec.). 112 Ibid., at 86.

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The Court applied the general principle of equal treatment to members of the same national group also in its Minority Schools in Albania advisory opinion. In applying this general principle to the (Albanian) minority in Albania, the Court relied on the Minorities Treaties and the 1921 Albanian declaration.113 Although not expressly referring to this general principle, the content of the 1921 Albanian declaration corresponded to the general principle of equal treatment as it was ascertained in Oscar Chinn. The Court considered a version of this general principle (i.e., the general principle of the equality of treatment of all flags) in its Jurisdiction of the European Commission of the Danube advisory opinion. By basing this version of the general principle of equality of treatment on the 1856 Treaty of Paris and the Definitive Statute, the Court noted that it rests with the European Commission to assure this freedom [of navigation] and equality upon the maritime Danube, that organization must necessarily have power to intervene, should the territorial authorities adopt measures contrary to these principles.114 7.3.2.3

General Principle That in Case of a Change in Sovereignty, Private Rights Acquired under the Existing Law Do Not Cease to Exist The general principle that in case of a change in sovereignty, private rights acquired under the existing law do not cease to exist is a substantive general principle with a judicial underpinning.115 This general principle, as applied in the Settlers of German Origin in Poland, protected German farmers in Poland from the expropriation of their lands. Germany had ceded to Poland territory inhabited by German farmers, and Poland demanded that the farmers leave their land.116 However, the Court’s application of this general principle ensured the continuity of the German minority’s rights. As the Court noted, denying this protection to the German farmers would be “based on no principle and would be contrary to an almost universal opinion and practice”.117 113 Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64, at 4, 21–22 (6 Apr.). Article 5 of the 1921 Albanian declaration referred to the “Albanian nationals who belong to racial, religious or linguistic minorities”. Ibid., at 5. 114 Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14, at 67 (8 Dec.). 115 The general principle that in the case of a change in sovereignty, private rights acquired under the existing law do not cease to exist is classified under Digest number 37. 116 Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6, at 16, 36 (10 Sept.). 117 Ibid., at 36.

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7.3.2.4 General Principle of Respect for Vested Rights Among the general principles applicable to non-State actors is also the general principle of respect for vested rights (also called the general principle of acquired rights in the icj’s jurisprudence),118 a substantive general principle with an international underpinning, mentioned in four pcij decisions made between 1926 and 1938. The general principle of vested rights protects investors from unlawful expropriation. In ascertaining this general principle, the pcij relied on Head ii of the Geneva Convention, while noting that Head iii of the same treaty provided for its exception.119 The Court clarified that a State may expropriate, but only after giving notice pursuant to Article 15 of the Geneva Convention.120 The Court further clarified the content of this general principle in the Oscar Chinn case by noting that the changing economic situation in the host State does not constitute a violation of the general principle of respect for vested rights, because the investors should have expected being exposed to such changes. In the Court’s words, “[foreign investors] are also exposed to the danger of ruin or extinction if circumstances change. Where this is the case, no vested rights are violated by the State”.121 In the Phosphates in Morocco case, the last pcij decision that considered this general principle, the Court was asked to consider “the decision of [France’s] Department of Mines as an unlawful international act [… issued in] violation of the vested rights placed under the protection of the international conventions”.122 However, the Court found that it had no jurisdiction to entertain Italy’s contention.123 The Court also considered that certain State domestic acts needed to conform to international law. For example, the Court in Denunciation of the Treaty between China and Belgium noted that the expropriation options provided for in the Chinese Presidential order had to conform to “the generally accepted

118 The general principle of respect for vested rights (or the general principle of acquired rights) is classified under Digest number 55. 119 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 33 (25 May); Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 27 (26 July). 120 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 46, 48 (25 May). 121 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 88 (12 Dec.). 122 Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74, at 28–29 (14 June) (at issue was the 8 January 1925 decision of the French Department of Mines). 123 Ibid., at 29.

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principles of international law”.124 Similarly, in Certain German Interests in Polish Upper Silesia it noted that “[t]he legal designation applied by one or other of the interested Parties to the act in dispute is irrelevant if the measure in fact affects German nationals in a manner contrary to the [general] principles enunciated above”.125 7.4

Selected Procedural General Principles

The pcij identified 16 procedural general principles between 1922 and 1940, nine of which are analysed here. Of these nine general principles, three have an international underpinning, three a judicial underpinning, and three a mixed underpinning. The procedural general principles discussed here relate to the Court’s jurisdiction, the Parties’ standing and other procedural general principles. Procedural general principles relate to both the conduct and rights of States before the Court – like, for example, the general principles of diplomatic protection and reciprocity – and the Court itself – like, for example, the general principles of kompetenz-kompetenz and that the jurisdiction of the Court depends on the Parties’ consent. 7.4.1 General Principles Related to the Court’s Jurisdiction The two general principles considered here that relate to the Court’s jurisdiction are kompetenz-kompetenz and the general principle that the jurisdiction of the Court depends on the consent of the Parties. 7.4.1.1 General Principle of Kompetenz-Kompetenz The general principle of kompetenz-kompetenz is a procedural one with a mixed (international and judicial) underpinning.126 It was referred to by the pcij in its 1928 Interpretation of the Greco-Turkish Agreement advisory opinion. Without using the expression ‘kompetenz-kompetenz’, the Court in its 1928 ­advisory opinion stated that “any body [including the Mixed Arbitral Tribunal] possessing jurisdictional powers has the right in the first place itself to 124 Denunciation of the Treaty of 2 November 1865 between China and Belgium, Order [1927] p.c.i.j. (ser.A) No. 8, at 8 (8 Jan.) (referring most likely to general principles of equal treatment and vested rights). 125 Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 22 (25 May). 126 The general principle of kompetenz-kompetenz is classified under Digest number 94.

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d­ etermine the extent of its jurisdiction”.127 In this case, Greece argued that “the Mixed Commission [did not have] the right to settle by a preliminary decision the question […] of the jurisdiction or lack of jurisdiction of the arbitrator in each ­particular case”.128 The Court, however, found that it is for the Mixed ­Commission to decide the question of its competence and that Greece’s contention contradicted the “accepted principle of law”.129 7.4.1.2

General Principle That the Jurisdiction of the Court Depends on the Consent of the Parties Like the general principle of kompetenz-kompetenz, the one that the jurisdiction of the Court depends on the consent of the Parties is a procedural one with a mixed underpinning.130 The pcij mentioned it in five decisions delivered between 1923 and 1939. The Court in the Status of Eastern Carelia advisory opinion noted that [i]t is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.131 The Court in Rights of Minorities in Upper Silesia and Factory at Chorzów recognised this general principle as part of Article 36 of its Statute,132 which then provided that “[t]he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force”.133 The Court in the Rights of Minorities case made it clear that this general principle does not apply (and that the Court does not have jurisdiction) when States confer exclusive jurisdiction on another authority, provided that this ‘other authority’ has a similar function and jurisdiction to the Court.134 In this 127 Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article iv), Advisory Opinion [1928] p.c.i.j. (ser.B) No. 16, at 20 (28 Aug.). 128 Ibid., at 13. 129 Ibid., at 25. 130 The general principle that the jurisdiction of the Court depends on the will/consent of the Parties is classified under Digest number 95. 131 Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5, at 27 (23 July). 132 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 22–23 (26 Apr.); Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 37 (13 Sept.). See also Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2, at 10 (30 Aug.) (referring to Articles 34 and 36 of the Court’s Statute). 133 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 36. 134 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 23 (26 Apr.); Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 37 (13 Sept.).

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case, the Court was deciding whether the jurisdiction of the Council of the League of Nations was exclusive and, if so, whether this exclusive jurisdiction provided an exception to the Court’s jurisdiction. The pcij found that the ­jurisdiction of the Council of the League did not exclude the Court’s, because “the two jurisdictions [we]re different in character”.135 The Court in Rights of Minorities clarified the expression ‘State consent to jurisdiction’ and noted that it can only be unilateral; in addition ‘consent’ refers also to conclusive acts or mere statements and not just to declarations as provided for in Article 36 of the Court’s Statute.136 Based on this clarification, the Court found that Poland had implicitly consented to the Court’s jurisdiction by arguing the case on the merits, despite its “objection to the jurisdiction made in the Rejoinder”.137 The Court also interpreted the expression ‘all cases which the Parties refer to’ and noted that “there is no dispute which States entitled to appear before the Court cannot refer to it”.138 The Court confirmed this finding in the Factory at Chorzów (Merits) case by noting that the Court therefore is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it, save in exceptional cases where a dispute may be within the exclusive jurisdiction of some other body.139 In the 1939 case of Société Commerciale de Belgique, the Court found it sufficient to establish its jurisdiction to adjudicate based on the fact “that the Greek Government has raised no objection; on the contrary, it has submitted arguments on the merits and has asked for a decision on the merits”.140

135 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 29 (26 Apr.). 136 Ibid., at 25 (noting that “the intention of submitting a matter to the Court for decision has been implicitly shown by the fact of arguing the merits without reserving the question of jurisdiction”). 137 Ibid., at 26. See also Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78, at 174 (15 June). 138 Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 22 (26 Apr.). See also Covenant of the League of Nations, 28 Apr. 1919, art. 14 (determining that “[t]he Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it”). 139 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 37 (13 Sept.). 140 Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78, at 174 (15 June). In the icj’s 1950 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania advisory opinion the Court clarified that the general principle that its jurisdiction depends on the consent of the Parties – although constituting “the basis of the Court’s jurisdiction in contentious cases” – does not apply to its advisory proceedings. Interpretation of Peace

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7.4.2 General Principles Related to the Parties’ Standing The following three procedural general principles determine the disputing States’ right to bring or to continue international proceedings before the Court. 7.4.2.1

General Principle That Only States or Members of the League of Nations Can Be Parties in Cases before the Court The general principle that only States or members of the League of Nations can be Parties in cases before the Court is a procedural general principle with an international underpinning141 that appears in the 1929 Serbian Loans case. The Court based this general principle on Article 14 of the Covenant of the League of Nations and Article 34 of its Statute,142 but did not further clarify its content. 7.4.2.2 General Principle of Diplomatic Protection Another general principle related to the Parties’ standing is the general principle of diplomatic protection, also discussed in detail in Chapter 9. This is a procedural general principle with a judicial underpinning.143 It appears in four pcij decisions, delivered between 1924 and 1939. The pcij did not refer to this general principle as to diplomatic protection; it became known as ‘diplomatic protection’ in the subsequent (mainly icj’s) jurisprudence.144 The general principle of diplomatic protection enables States to initiate proceedings to protect their nationals’ grievances. The pcij first ascertained it in Mavrommatis Palestine Concessions case and on its basis allowed Greece to espouse the claim of its national, Mr. Mavrommatis, and to continue its international proceedings against the United Kingdom. Greece claimed that Mr. Mavrommatis “has been treated by the Palestine or British authorities in a

141 142

143 144

Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 65, at 71 (30 Mar.). The general principle that only States or Members of the League of Nations can be Parties in cases before the Court is classified under Digest number 125. Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 17 (12 July); Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 34. The reference in Article 34 of the pcij Statute to “States or Members of the League of Nations” was amended to “States” in Article 34 of the icj’s Statute. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 34(1). The general principle of diplomatic protection is classified under Digest number 122. See, e.g., Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 185 (11 Apr.) (referring to “the State’s right of diplomatic protection and the Organization’s right of functional protection”).

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manner incompatible with certain international obligations which they were bound to observe”.145 In determining whether Greece had the standing to bring a claim to protect Mavrommatis’ rights, the Court ascertained an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.146 The pcij did not rely on any external basis or evidence, or other arbitral tribunal’s award, in confirming the existence and content of this ‘elementary principle’ of diplomatic protection. The Court did invoke Article 26 of the 1922 Mandate for Palestine in its decision; however, Article 26 does not outline States’ right of diplomatic protection, and it merely provides that only States can file claims before the pcij.147 In the same case, the Court also clarified that the State espousing the claim for its national is actually claiming its own right (not the right of the individual) and is not directly acting on behalf of its nationals.148 In Factory at Chorzów, the Court further clarified this general principle by noting that [t]he damage suffered by an individual [or a company] is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State [in cases of diplomatic protection].149 In its Panevezys-Saldutiskis Railway decision, the Court determined that the general principle of diplomatic protection does not allow States to espouse the claims of foreigners.150 145 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 11–12 (30 Aug.). 146 Ibid., at 12. 147 Ibid. 148 “[Before the Court] the State is sole claimant”. Ibid. See also Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 16 (28 Feb.) (noting that “a State is in reality asserting its own right” in the context of diplomatic protection). 149 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 28 (13 Sept.). 150 Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 16 (28 Feb.) (observing that “[t]his right [of diplomatic protection] is necessarily limited to intervention on behalf of its own nationals”).

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The Court did not invoke diplomatic protection in the Oscar Chinn case when considering the “loss and damage alleged to have been sustained by Mr. Oscar Chinn, a British subject, as the result of certain measures taken by the Belgian Government”.151 The Court instead gave priority to the international obligations between the two States, which “ar[ose] from the international régime of the Congo basin”.152 7.4.2.3 General Principle of the Exhaustion of Domestic Remedies A general principle related to diplomatic protection is the general principle of exhaustion of domestic remedies.153 Of a procedural type and with a judicial underpinning, this general principle was mentioned in three pcij decisions between 1929 and 1939. For example, the Court noted in the Serbian Loans case that “[t]here are cases […] in which an action cannot be brought before an international tribunal when there are legal remedies still open to the individuals concerned”.154 In Prince von Pless Administration, the Court referred to this new requirement related to the Parties’ standing before the Court as “the principle as to the exhaustion of internal means of redress”.155 In its 1939 Panevezys-Saldutiskis Railway decision, the Court clarified that the exhaustion of domestic remedies is a precondition in certain instances to entering into proceedings before the Court only if the domestic remedies are effective and States provide an appropriate domestic forum for seeking redress.156 Considering that the Court did not rely on any external basis in ascertaining the general principle of the exhaustion of domestic remedies, this general principle – with a judicial underpinning – was novel to the Parties. Evidence of its relative novelty among the norms of international law was that “the Estonian company has not instituted any legal proceedings before the Lithuanian courts in order to establish its title to the Panevezys-Saldutiskis Railway”.157 In 151 Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63, at 66 (12 Dec.). 152 Ibid., at 79. 153 The general principle of exhaustion of domestic remedies is classified under Digest number 123. 154 Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 19 (12 July). 155 Prince von Pless Administration, Order [1933] p.c.i.j. (ser.A/B) No. 52, at 16 (4 Feb.). 156 Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 18 (28 Feb.) (noting that “[t]here can be no need to resort to the municipal courts if those courts have no jurisdiction to afford relief; nor is it necessary again to resort to those courts if the result must be a repetition of a decision already given”). 157 Ibid., at 22.

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other words, the Estonian company did not even attempt to exhaust Lithuania’s domestic remedies. 7.4.3 Other Procedural General Principles The last three procedural general principles considered here relate to the nature of the Court proceedings and regulate the States’ conduct for the duration of the proceedings. The first general principle, namely, that the question in the request for an advisory opinion can be communicated to those States that are likely to supply relevant information, is applicable to the Court, while the second and the third, the general principle of reciprocity and the general principle that a party to legal proceedings must abstain from any measure which might aggravate or extend the dispute, address the conduct of States. 7.4.3.1

General Principle That a Question Referred to the Court for an Advisory Opinion Is Communicated to Governments Likely to Be Able to Supply Relevant Information The general principle that a question referred to the Court for an advisory opinion is communicated to governments likely to be able to supply relevant information is a procedural one with an international underpinning.158 It appears only in the pcij’s 1925 Interpretation of the Treaty of Lausanne advisory opinion. This general principle allowed the Court to reach out to any State in gathering information in its advisory proceedings, and not just to Members of the League of Nations. In particular, the Court was able in its 1925 Interpretation of the Treaty of Lausanne advisory opinion to ask Turkey, which was then not a Member of the League of Nations, for additional information.159 Neither the Court’s Statute nor its Rules of Procedure provided for such a possibility. A year after the advisory opinion, the Court accepted an amendment to its Rules of Procedure that embodied the general principle that a question referred to the Court for its advisory opinion is communicated to governments likely to be able to supply relevant information. The Court changed Article 73 of its Rules from stating that the notice of the request for an advisory opinion 158 The general principle that a question referred to the Court for an advisory opinion is communicated to governments likely to be able to supply relevant information is classified under Digest number 108. 159 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 8 (21 Nov.). The Court notified Turkey – the non-member of the League – because the request for an advisory opinion concerned a dispute on the TurkishIraqi border (Iraq was under the British protectorate; the United Kingdom was then a member of the League).

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will be given “to the members of the Court and the Members of the League of Nations [… and] to any international organisations which are likely to be able to furnish information of the question”,160 to providing a notice to the members of the Court and the Members of the League of Nations […] and to any States entitled to appear before the Court [… and] any Member of the League or State admitted to appear before the Court or international organizations considered by the Court […] as likely to be able to furnish information on the question.161 Although the Court incorporated this general principle into its Statute, the norm retained its independent existence as an Article 38(1)(c) norm, while also acquiring Article 38(1)(a) status. 7.4.3.2 General Principle of Reciprocity The Court in its jurisprudence also briefly referred to the general principle of reciprocity, a procedural general principle with a mixed underpinning.162 The pcij referred to it in three decisions, delivered between 1932 and 1939. For example, the Court referred to this general principle in Phosphates in Morocco and Electricity Company of Sofia and Bulgaria in determining the scope of its jurisdiction, while also invoking Article 36(2) of its Statute, which embodies the general principle of reciprocity.163 Article 36 of the pcij Statute provided that “[t]he declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain Members or States, or for a certain time”.164 The Court also referred to the “principle of reciprocity”165 in Treatment of Polish Nationals in Danzig. However, because in this case it related this general principle to the national treatment and not to the procedure before the Court,

160 Permanent Court of International Justice, Rules of the Court (ser.D) No. 1, 24 Mar. 1922, art. 73. 161 Ibid. (as amended on 31 July 1926), art. 73 (emphases added). 162 The general principle of reciprocity is classified under Digest number 111. 163 Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74, at 22 (14 June); Electricity Company of Sofia and Bulgaria, Preliminary Objections [1939] p.c.i.j. (ser.A/B) No. 77, 80–81 (4 Apr.). 164 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 36. 165 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 34 (4 Feb.).

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this ‘variation’ of the general principle of reciprocity is of a substantive, rather than of a procedural, type. 7.4.3.3

General Principle That a Party to Legal Proceedings Must Abstain from Any Measure Which Might Aggravate or Extend the Dispute The general principle that a party to legal proceedings must abstain from any measure which might aggravate or extend the dispute (also known as ‘provisional measures’) is a procedural general principle with an international underpinning,166 mentioned in one pcij decision. The Court relied on this general principle, also embodied in Article 41(1) of its Statute, in the Electricity Company of Sofia and Bulgaria order. The Court noted that this was a principle universally accepted by international tribunals […] to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.167 As a comparison, Article 41 of the pcij’s Statute provided that [t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party.168 The Court stated not only that this general principle is universally accepted in international jurisprudence, but that it is also “laid down in many conventions to which Bulgaria has been a party”.169

166 The general principle that a party to legal proceedings must abstain from any measure which might aggravate or extend the dispute (provisional measures) is classified under Digest number 110. 167 Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.). 168 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 41. The icj Statute replaced “reserve” with the word “preserve”. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art.41. 169 Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79, at 199 (5 Dec.).

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Selected Interpretative General Principles

Between 1922 and 1940, the pcij identified 16 interpretative general principles, eight of which are analysed here. Seven have a judicial underpinning and one has an international underpinning. The interpretative general principles considered here have been placed into three categories, namely, those that are specific (i.e., limited) to treaty interpretation, those that are not specific to treaty interpretation, and other interpretative general principles. In comparison, the Digest distributes the interpretative ­general principles in seven categories. The Court identified not only general principles specific to treaty interpretation but also interpretative general principles applicable to the interpretation of international instruments in general, including judicial decisions. A general principle not specific to treaty interpretation is, for example, that the special words control the general expression. By relying on interpretative general principles, the pcij also clarified the divide between domestic and international law (as the Court sees it). For example, the Court relied on the general principle that domestic law cannot provide an exception to an international obligation and the general principle that States are bound to make such amendments to their legislation as may be necessary to ensure the fulfilment of the obligation undertaken. 7.5.1 General Principles Specific to Treaty Interpretation The pcij identified a handful of general principles of treaty interpretation, some of which were included in the 1969 Vienna Convention on the Law of Treaties (vclt). 7.5.1.1

General Principle That If the Wording of a Treaty Provision Is Not Clear, in Choosing between Several Admissible Interpretations, the One Which Involves the Minimum Obligations for the Parties Should Be Adopted The general principle that if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum obligations for the Parties should be adopted is an interpretative general principle with a judicial underpinning,170 mentioned once in the pcij’s 1925 Interpretation of the Treaty of Lausanne advisory opinion. 170 The general principle that if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, that which involves the minimum obligations for the Parties should be adopted is classified under Digest number 141.

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Although noting that it is a “sound” general principle,171 the Court in Interpretation of the Treaty of Lausanne did not apply it because the relevant provision of the Treaty of Lausanne was clear.172 Poland invoked this general principle as part of its submissions to the Territorial Jurisdiction of the International Commission case. However, after noting that Poland’s argument was “sound in itself”,173 the Court said that this general principle had to be employed only with the greatest caution after considering other methods of interpretation, and when “the intention of the Parties still remains doubtful”.174 7.5.1.2 General Principle That the Intention of the Parties Is Decisive Another general principle specific to treaty interpretation is the one that the intention of the Parties is decisive. This is an interpretative general principle with a judicial underpinning,175 considered in four pcij decisions delivered between 1928 and 1929. The Court involved this general principle in Jurisdiction of the Courts of Danzig and considered it vis-à-vis a prima facie contrary substantive general principle that “an international agreement, cannot, as such, create direct rights and obligations for private individuals”.176 In considering both principles, the Court decided to apply the interpretative one177 and determined that, despite the inter-State nature of the Danish-Polish Agreement, individuals had rights and obligations under that agreement because the Parties concurred that it regulated “‘the legal relationship between the Railways Administration and its employees’”.178 In other words, it was the Parties’ intention to extend the rights and obligations of the Danish-Polish Agreement to the company and the ­individuals. Although an international agreement could not create direct 171 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12, at 25 (21 Nov.). 172 Ibid. 173 Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 26 (10 Sept.). 174 Ibid. 175 The general principle that the intention of the Parties is decisive is classified under Digest number 142. 176 Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 17 (3 Mar.). The general principle that the international agreement cannot, as such, create direct rights and obligations for private individuals is classified under Digest number 3. 177 Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15, at 18 (3 Mar.) (noting that “[t]his principle of interpretation should be applied by the Court in the present case”). 178 Ibid., at 23.

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rights and obligations for individuals, it could do so when the Parties so intended. In the Serbian Loans case, the Court referred to this general principle as “the familiar principle applicable to ambiguous agreements”,179 but did not apply it to the case because “the loan contracts [we]re not ambiguous [… but] clear and definite”.180 Similarly, the Court in the Brazilian Loans confirmed that in applying “the familiar principle that where a contract is ambiguous, resort may be had to the manner of performance in order to ascertain the intention of the Parties”.181 However, as in Serbian Loans, the Court found the terms of the loan contracts to be clear. The pcij considered the Parties’ intention also in Territorial Jurisdiction of the International Commission, without invoking any particular general principle. The Court merely noted that “[when] the intention of the Parties still remains doubtful, that that interpretation should be adopted which is most ­favourable to the freedom of States”.182 This finding was the Court’s response to Poland invoking the general principle that if the wording of a treaty provision is not clear, in choosing between several admissible interpretations the one which involves the minimum obligations for the Parties should be adopted. 7.5.1.3

General Principle That International Obligations Cannot Transmit to Another International Agreement Unless the International Agreement Expressly Allows The third general principle specific to treaty interpretation considered here is the general principle that international obligations cannot be transmitted to another international agreement unless the international agreement expressly allows. This is an interpretative general principle with a judicial underpinning,183 mentioned in two pcij decisions delivered in 1924 and 1932. The Court in Treaty of Neuilly placed this general principle among the “general principles of interpretation”,184 and noted that (pursuant to this general principle) “an obligation imposed on one Contracting Party cannot be based 179 Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 38 (12 July). 180 Ibid. 181 Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21, at 119 (12 July). 182 Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 26 (10 Sept.). 183 The general principle that international obligations cannot transmit to another international agreement unless the international agreement expressly allows is classified under Digest number 140. 184 Treaty of Neuilly‚ Article 179‚ Annex‚ Paragraph 4 (Interpretation), Judgment [1924] p.c.i.j. (ser.A) No. 3, at 9 (12 Sept.).

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on the fact that it is mentioned in the annex to a section of a Treaty dealing with a different matter”.185 In this decision the Court compared the Treaty of Neuilly with the Treaty of Versailles and noted that the former “differs ­considerably from the corresponding Part of the Treaty of Versailles”.186 Unlike Article 232 of the Versailles Treaty, Article 121 of the Neuilly Treaty did not refer to “the period of belligerency of the respective Allied or Associated Powers against Germany”,187 and the Court concluded that “interpretations which may apply in the case of one Treaty do not necessarily apply in the case of the other”.188 The Court again relied on this general principle in the Interpretation of the Convention of 1919 concerning Employment of Women during the Night advisory opinion. In this advisory opinion, the Court compared the Berne and Washington treaties and noted that [t]he text of the [Washington] Convention as adopted made no reference to the Berne Convention. […] The Washington Convention cannot therefore be said, by reason of the work on which the 1919 Conference was engaged, to be so intimately linked with the Berne Convention as to require that the terms of the Washington Convention should bear the same meaning as the terms of the Berne Convention.189 Therefore – and pursuant to this interpretative general principle – when the two treaties refer to the same notion, the international obligations specific to one treaty do not transmit to another treaty, unless the latter expressly allows for such ‘transplantation’. 7.5.2 General Principles Not Specific to Treaty Interpretation Among the interpretative general principles not specific to treaty interpretation are the general principle that words must be interpreted in the sense which they would normally have in their context unless such interpretation would lead to something unreasonable or absurd and the general principle that the special words overrule the general expression.

185 Ibid. 186 Ibid. (referring to Part vii of the Treaty of Neuilly and “the corresponding Part of the Treaty of Versailles”). 187 Ibid. 188 Ibid. 189 Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 50, at 377 (15 Nov.).

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7.5.2.1

General Principle That Words Must Be Interpreted in the Sense Which They Would Normally Have in Their Context Unless Such Interpretation Would Lead to Something Unreasonable or Absurd The general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd is an interpretative general principle with a judicial underpinning,190 mentioned in the 1925 Polish Postal Service in Danzig advisory opinion. The Court in its 1925 advisory opinion stated that “[i]t is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd”.191 According to the Court, this general principle was one of the “ordinary methods of interpretation”192 that precluded the application of other strict or liberal methods of treaty interpretation. 7.5.2.2

General Principle That the Special Words Override the General Expression The general principle that special words override general expressions (also known as lex specialis derogat legi generali) is also an interpretative general principle with a judicial underpinning,193 ascertained by the pcij in the 1929 Serbian Loans judgment. In Serbian Loans the Court, in interpreting French bondholders’ bonds, merely stated that “[t]he special words, according to elementary principles of interpretation, control the general expressions”.194 The Court found that the references to ‘francs’ in some parts of the bonds had to be understood as not “detracting from the force of the specific provision for gold francs”195 so as to maintain consistency with the other provisions of the bonds. 7.5.3 Other Interpretative General Principles Interpretative general principles also aid the Court’s interpretation of international decisions (as, for example, the general principle of res judicata) and in 190 The general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd is classified under Digest number 144. 191 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 39 (16 May). 192 Ibid. 193 The general principle that special words override the general expresssions (lex specialis derogat legi generali) is classified under Digest number 146. 194 Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 30 (12 July). 195 Ibid.

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distinguishing domestic law from international law (as, for example, the general principle that international law prevails over national law). An interpretative general principle that does not belong in any of these categories is the general principle of ejus est interpretare lege cujus condere.196 7.5.3.1 General Principle of Res Judicata The general principle of res judicata is an interpretative one with a mixed (international and judicial) underpinning.197 The pcij referred to it in four decisions delivered between 1927 and 1939. For example, the Court in the Interpretation of Judgments Nos. 7 and 8 decision confirmed that its 1926 and 1927 decisions had “now [in 1927] indisputably acquired the force of res judicata”.198 The Court said that [t]he interpretation [of judgments Nos. 7 and 8] adds nothing to the decision, which has acquired the force of res judicata, and can only have binding force within the limits of what was decided in the judgment construed.199 The Court in Factory at Chorzów (Merits) noted that ascertaining a breach of an international obligation in a previous decision – in particular, the Court’s finding that Poland had breached the Geneva Convention – had acquired the force of res judicata.200 The Court also observed how is this general principle applied in the jurisprudence of other international tribunals. For example, in Société Commerciale de Belgique, it said that “the Court of Arbitration applied the doctrine of res judicata because not only the Parties but also the matter in dispute was the same”.201 Despite referring to res judicata as a doctrine,202 the Court further noted that “[r]ecognition of an award as res judicata means nothing else than

196 Translated by Fellmeth and Horwitz as “whoever is authorized to establish the law is authorized to interpret it”. Fellmeth and Horwitz, above n. 97, at 86. 197 The general principle of res judicata is classified under Digest number 148. 198 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] p.c.i.j. (ser.A) No. 13, at 20 (16 Dec.). 199 Ibid., at 21. See also Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.) (referring to its 1926 decision in Certain German Interests in Polish Upper Silesia as having the quality of res judicata). 200 Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 29 (13 Sept.) (noting that “[t]he application of the principle [of res judicata] to the present case is therefore evident”). 201 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 30 (16 May). 202 See also ibid., at 21, 30 (referring to res judicata as a ‘doctrine’).

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recognition of the fact that the terms of that award are definitive and obligatory”.203 7.5.3.2

General Principle That International Law Prevails over National Law The general principle that international law prevails over national law is interpretative and has a judicial underpinning.204 This general principle was mentioned in two pcij decisions in 1930 and 1932. In Greco-Bulgarian “Communities” the Court was asked to determine what law – domestic or international – prevails in situations where domestic legislation is at variance with a treaty.205 The Court found that “it is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty”.206 It explained that when the proper application of the treaty would be in conflict with domestic law, the treaty prevails.207 The Court relied on Articles 2(1) and 15 of the Greco-Bulgarian Treaty to confirm that the two Governments have undertaken not to place any restriction on the right of emigration, notwithstanding any municipal laws or regulations to the contrary, and to modify their legislation in so far as may be necessary to secure the execution of the Convention.208 The Court relied again on the general principle that international law prevails over national law in the Treatment of Polish Nationals in Danzig advisory opinion. It noted that among the “generally accepted principles”209 is (the rule) that a State could not hold another State accountable on the basis of “the provisions of the latter’s Constitution [and …] cannot adduce as against another 203 Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78, at 175 (15 June). The Court clarified that only the content of the decision acquires the status of res judicata, while its form of implementation may change. 204 The general principle that international law prevails over national law is classified under Digest number 150. 205 Greco-Bulgarian “Communities”, Advisory Opinion [1930] p.c.i.j. (ser.B) No. 17, at 7 (31 July) (Greece was asking “[i]f the application of the Convention of Neuilly is at variance with a provision of internal law in force in the territory of one of the two signatory Powers, which of the conflicting provisions should be preferred – that of the law or that of the Convention?”). 206 Ibid., at 32. 207 Ibid. (noting that “municipal law cannot prevail over those of the treaty”). 208 Ibid., at 32–33 (emphasis added). 209 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44, at 24 (4 Feb.).

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State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force”,210 thus confirming the general principle’s existence. 7.5.3.3

General Principle That a State Is Bound to Make to Its Legislation Such Amendments as May Be Necessary to Ensure the Fulfilment of the Obligation Undertaken Another interpretative general principle that assists the Court in distinguishing domestic law from international law is the general principle that States are bound to make to their legislation such amendments as may be necessary to ensure the fulfilment of the obligation undertaken. This is an interpretative general principle with an international underpinning,211 ascertained (solely) in the pcij’s Exchange of Greek and Turkish Population advisory opinion. The Court ascertained this general principle on the basis of Article 18 of the 1923 Convention Concerning the Exchange of Greek and Turkish Population, which provided that “‘[t]he High Contracting Parties undertake to introduce in their respective laws such modifications as may be necessary with a view to ensuring the execution of the present Convention’”.212 Although not used in any subsequent decision, this norm in theory continues to exist as a general principle, regardless of the validity of the treaty in which it was embodied. 7.5.3.4

General Principle That the Right to Give an Authoritative Interpretation of a Legal Rule Belongs Solely to the Person or Body Who Has the Power to Amend or Repeal It The last interpretative general principle considered here is that the right to give an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to amend or repeal it (also known as ejus est interpretare lege cujus condere). This general principle has a judicial underpinn­ ing,213 and it appeared in the pcij’s 1923 and 1925 decisions. The Court first ascertained this general principle in the Question on Jaworzina advisory opinion. It noted that 210 Ibid. See also S.S. “Wimbledon”, Judgment [1923] p.c.i.j. (ser.A) No. 1, at 45 (17 Aug.) (Schücking dissenting). 211 The general principle that a State is bound to make to its legislation such amendments as may be necessary to ensure the fulfilment of the obligation undertaken is classified under Digest number 152. 212 Exchange of Greek and Turkish Population, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 10, at 20 (21 Feb.), quoting the Convention Concerning the Exchange of Greek and Turkish Populations, 30 Jan. 1923, art. 18. 213 The general principle that the right to give an authoritative interpretation of a legal rule belongs solely to the person or body who has power to amend or repeal it (ejus est interpretare legem cujus condere) is classified under Digest number 155.

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the letter of November 13th, 1922, from the Conference of Ambassadors […] is the most authoritative and most reliable interpretation of the intention expressed at that time, and that such an interpretation, being drawn from the most reliable source, must be respected by all, in accordance with the traditional principle: ejus est interpretare legem cujus condere.214 The Court further noted that “it is an established principle that the right of ­giving an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it”.215 Pursuant to this general principle, the Court found that the Frontiers Treaty, having been “signed by the same persons as the [1920] decision”,216 amended the initial 1920 declaration.217 The Court in Polish Postal Service in Danzig advisory opinion invoked a variation of this general principle, namely, the general principle that the decisions of the body are to be construed as being in con­formity with the powers conferred upon it. In this advisory opinion, the Court considered the extent of the High Commissioner’s judicial function and noted that the decisions of the High ­Commissioner’s predecessor in office “should, if possible, be construed as being in conformity with the powers conferred upon him”.218 Ultimately, the Court was unable to rely on this general principle because it found that the former High Commissioner’s decision was – as the Treaty of Versailles and the Paris Convention warranted – “confined to the questions submitted by the Parties”.219 The Court in its Question on Jaworzina advisory opinion considered the general principle that the right to give an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to amend or repeal it also in relation to the powers of the arbitrators. As the Court noted, “in the absence of an express agreement between the parties, the Arbitrator is not competent to interpret, still less modify his award by revising it”.220

214 Question on Jaworzina, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 8, at 37 (6 Dec.). 215 Ibid. 216 Ibid., at 38. 217 Ibid. 218 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 26 (16 May). 219 Ibid. The Court also noted that “a general question concerning the activities of the Polish postal service outside its premises was neither submitted to the High Commissioner nor decided by him”. Ibid. 220 Question on Jaworzina, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 8, at 38 (6 Dec.).

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273

‘Other Rules’

Besides ascertaining general principles, the pcij’s jurisprudence contains certain ‘other rules’ that are not prima facie attributed to any of the three traditional sources of international law. For example, the pcij relied on at least three ‘other rules’ specific to treaty interpretation, namely, the ‘other rule’ that the meaning of the treaty evolves over time, the ‘other rule’ that when the text of the treaty is ambiguous the Court should not err on the side of the States, and the ‘other rule’ that when instruments are ambiguous they should be interpreted against the offeror. The ‘other rule’ of the evolution of the treaty meaning over time appears in the Employment of Women during the Night advisory opinion. The Court noted that the ordinary meaning of words may evolve over time, and relied on this ‘other rule’ in deciding whether Article 3 of the Washington Convention applies also to women in management positions (as opposed to being applied solely to men). The Court found that Article 3 neither allowed nor prohibited the application of this provision to women and – by reasoning that “it is necessary to find some valid ground for interpreting the provision otherwise than in accordance with the natural sense of the words”221 – concluded that only because certain situations had not been foreseen at the time of the conclusion of the treaty (but which the terms of the treaty were broad enough to accommodate) did not mean that the treaty could not cover them.222 In other words, the Court acknowledged that the meaning of treaty provisions may change over time, provided the provisions do not expressly preclude such interpretation. Another ‘other rule’ that the Court relied upon was the ‘other rule’ that when instruments are ambiguous they should be interpreted against the offeror. The Court relied on this ‘other rule’ in the Brazilian Loans case when interpreting bonds that had been issued in 1909,223 and stated that “[when the instruments] are found to be ambiguous, they should be taken contra proferentem [against the offeror]”.224 The Court did not clarify whether this rule applied to international instruments or (also) to private law contracts.

221 Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 50, at 373 (15 Nov.). 222 Ibid., at 377. 223 Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21, at 115 (12 July) (noting that “[f]or these reasons, it is concluded that the bonds of the issue of 1909 are to be construed as providing for the payment of principal and interest in gold”). 224 Ibid., at 114. See also Fellmeth and Horwitz, above n. 97, at 66.

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Concluding Observations

Over the course of its 18-year-long jurisprudence, the Court ascertained 64 general principles that regulated States’ freedoms, reparation and international responsibility, the Court’s procedure and its interpretation of international instrument. More than half of these general principles had a judicial underpinning, and the remainder had either an international or a mixed (international and judicial) underpinning. This finding demonstrates that the Court, despite mentioning domestic law on a few occasions in its jurisprudence, did not rely on domestic law in ascertaining the norms classified here under the Article 38(3) of the pcij Statute. The Court’s reference to the word ‘principle’ also indicates that its perception of general principles extended beyond the Roman maxims. Although few general principles, such as res judicata, and ejus est interpretare lege cujus condere, may have originated in Roman law, the vast majority of the pcij’s general principles do not have Latin names (and potentially Roman origins). The icj adopted over half of all the general principles ascertained by the pcij (i.e., 38 general principles) and developed them according to its own understanding, whether referring to the pcij’s contribution in the process or not. What the pcij is least recognised for today is its ascertainment of interpretative general principles. The icj – even before the adoption of the vclt – did not always invoke these general principles’ pcij origins, and after the vclt’s adoption in 1969, the icj omitted to refer to these norms as general principles altogether, referring to them instead in their form of treaty provisions and their customary international law counterparts. The first permanent international tribunal was not as permanent as the League of Nations could have hoped for. The pcij suspended its operations in 1940, dismissed its bench (save for its President) and moved its seat to Geneva.225 The end of the pcij’s functioning represented the end of an era – a very ­successful one for international law and the international judiciary. Although the pcij may not have fulfilled its promise of being a ‘permanent’ international court, it laid the foundations for interpreting and developing international law for the peaceful settlement of disputes, also by relying on general principles within Article 38(3) of its Statute. 225 See, e.g., Permanent Court of International Justice, 16th Report of the Permanent Court of International Justice, 15 June 1939–31 Dec. 1945 (ser.E) No. 16, at 10.

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General Principles Ascertained by the International Court of Justice (1948–2018) The General Assembly [… considers] that it is also of paramount importance that the Court should be utilized to the greatest practicable extent in the progressive development of international law, both in regard to legal issues between States and in regard to constitutional interpretation […]1 8.1 Introduction The International Court of Justice (icj) became the principal judicial organ of the United Nations even before the Permanent Court of International Justice (pcij) was officially dissolved in 1946. The icj ensured that the declaration of acceptance of the compulsory jurisdiction submitted to the pcij, which would otherwise “lapsed and ceased to be in force”,2 had been transferred to it by virtue of Article 36(5) of the icj Statute. As the Court noted, the continuity between the pcij and the icj – in terms of both accepting its jurisdiction and interpreting international law3 – ensured that there was no “backward step in relation to what had been achieved in the way of international jurisdiction”.4 The icj gave its first decision, that on preliminary objections in the Corfu Channel case, in 1948 and it is still in operation today as the longest-serving permanent international tribunal. The last icj decision considered here was 1 G.A. Res. 171(ii), Need for greater use by the United Nations and its Organs of the International Court of Justice, U.N. Doc. A/459 and Corr. 1 (14 Nov. 1947). 2 Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 25 (26 May). See also Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Preliminary Objections [1964] i.c.j. 6, at 29–34 (24 July). Article 37 of the Court’s Statute also provides that “[w]henever a treaty or convention in force provides for reference of a matter to […] the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice”. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 37. 3 See, e.g., Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] i.c.j. 15, at 30 (2 Dec.) (referring to Status of Eastern Carelia advisory opinion). 4 Aerial Incident of 27 July 1955 (Isr. v. Bulg.), Preliminary Objections [1959] i.c.j. 127, at 139 (26 May).

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_010

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its 2018 Obligation to Negotiate Access to the Pacific Ocean decision on preliminary objections.5 This chapter provides an overview of the icj’s reliance on general principles in its 70-year jurisprudence and describes 14 general principles. Out of the total of 130 general principles ascertained in the icj’s jurisprudence, this chapter analyses two substantive, six procedural and six interpretative general principles, five of which the icj ascertained without relying on pcij’s jurisprudence, namely, the general principle of forum prorogatum, the general principle of onus probandi incumbit actori, the general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself, the general principle that a legal text should be interpreted in such a way that a reason and a meaning can be attributed to every word in the text, and the general principle that a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way. The discussion of the selected substantive, procedural and interpretative general principles is followed by a brief overview of ‘other rules’ in the Court’s jurisprudence and some concluding thoughts comparing the icj’s with the pcij’s reliance on general principles. General principles are presented here only as relied upon by the Court and not also as considered in scholarly writings. They were selected as a representative sample of general principles ascertained by the Court. Due to the high volume of general principles and higher rate of recurrence in the icj’s juris­ prudence as compared to the general principles in pcij’s jurisprudence – a ­consequence of 52 years longer functioning – the practical limitation of space ­warranted discussing fewer general principles as in Chapter 7. However, the remaining 116 general principles ascertained by the icj are listed and accompanied by the relevant excerpts of the Court’s jurisprudence in the Digest. 8.2

Overview of the icj’s Reliance on General Principles

Between 1948 and 2018 the icj rendered 156 decisions and ascertained (at least) 130 general principles. Out of the 130 general principles, the icj adopted

5 The Court has since handed down an advisory opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 and a decision on preliminary objections in Certain Iranian Assets (Iran v. U.S.). See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion [2019] i.c.j. (25 Feb.); Certain Iranian Assets (Iran v. U.S.), Preliminary Objections [2019] i.c.j. (13 Feb.).

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GENERAL PRINCIPLES ASCERTAINED BY THE ICJ (1948–2018)

Non-recurrent 56 (56.15%)

Recurrent 74 (43.85%)

Referred to in 2 decisions 19 (26.03%) Referred to in 3 or more decisions 55 (73.97%)

Figure 8.1 General principles’ recurrence (1948–2018)

38 from the pcij’s jurisprudence,6 although it did not always refer to the pcij’s precedents in ascertaining them. The remaining 92 general principles the icj ascertained anew. 74 general principles (or 56.9 per cent) were mentioned in two or more decisions in the icj’s jurisprudence. Out of these 74 recurrent general principles, the Court referred to 19 (25.7 per cent) in two decisions and to 55 (74.3 per cent) in three or more decisions. For example, a recurrent general principle is that the land dominates the sea. The Court ascertained this general principle in the North Sea Continental Shelf and Tunisia/Libya Continental Shelf cases.7 Similarly, the Court in Review of Judgment No. 158 confirmed the existence of the procedural general principle of non ultra petita by referring to its Reinterpretation of the Asylum Case. The Court said that [o]ne must bear in mind the principle previously recalled by the Court, that it is the duty of an international tribunal ‘not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not indicated in those submissions’.8 6 See Western Sahara, Advisory Opinion [1975] i.c.j. 12, ¶23 (16 Oct.) (considering that “it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions”). 7 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶96 (20 Feb.); Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18, ¶73 (24 Feb.). 8 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166, at ¶87 (12 July) (emphasis added), quoting Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.).

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37 (28.46%) 77 (59.23%)

Figure 8.2 General principles’ type (1948–2018)

Substantive Procedural Interpretative

Table 8.1  Recurrent vs. non-recurrent general principles (1948–2018)

General principles of law (icj)

Substantive

Procedural

Interpretative Total

Non-recurrent Recurrent Total

39 (67.2%) 38 (52.8%) 77

14 (24.1%) 23 (31.9%) 37

5 (8.6%) 11 (15.3%) 16

58 72 130

Out of the 130 general principles ascertained in the icj’s jurisprudence, 77 were substantive, 37 procedural and 16 interpretative. The relatively small number of interpretative – compared to substantive and procedural – general principles may be due to the adoption of the 1969 Vienna Convention on the Law of Treaties (vclt), which codified some of the interpretative general principles. The icj prefers relying on the vclt when interpreting treaty provisions rather than on general principles. Out of 72 recurrent general principles, 52.8 per cent were substantive, 31.9 per cent procedural and 15.3 per cent interpretative. 36.7 per cent of all 77 substantive general principles ascertained by the icj, 43.2 per cent of all procedural ones and 56 per cent of all interpretative ones were mentioned in three or more decisions. Of the 77 substantive general principles that regulate the rights and obligations of the members of the international community, the icj borrowed 16 from the pcij’s jurisprudence. In other words, 79 per cent of all substantive general principles relied upon by the icj were identified anew, independently of the pcij.

279

GENERAL PRINCIPLES ASCERTAINED BY THE ICJ (1948–2018) Table 8.2  Recurrent general principles of law (1948–2018)

Recurrent general principles of law

Substantive

Procedural

10 28 38

7 16 23

In two decisions In 3+ decisions Total

Substantive

Interpretative Total 2 9 11

Procedural 58 (44.62%)

53 (40.77%)

19 53 72

14 (37.84%)

16 (43.24%)

19 (14.62%)

7 (18.92%)

Interpretative 5 (31.25%) Not recurrent Mentioned in 2 decisions Mentioned in 3+ decisions

9 (56.25%)

2 (12.5%)

Figure 8.3 Recurrent general principles (1948–2018)

Among the most cited substantive general principles in the icj’s jurisprudence was the general principle of the right to reparation and compensation, referred to in 20 icj decisions. The Court referred to the general principle of uti possidetis in 11 decisions and to that of the international responsibility of States (i.e., State responsibility) in ten decisions. The Court also referred to the general

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16 (20.78%)

61 (79.22%) Figure 8.4 ICJ only Substantive general principles ICJ + PCIJ (adopted from PCIJ) (1948–2018)

principles of State sovereignty (and territorial integrity) and the equitable general principles in seven decisions. Save for the latter (i.e, the equitable general principles), these frequently recurring substantive general principles mentioned here had been previously ascertained also by the pcij. Substantive general principles are classified (including in the Digest) into 11 topics. A list of all substantive general principles classified in each of these 11 topics is provided in the Digest. The icj referred to 37 procedural general principles. Of these, 12 were id­ entified by the pcij. In other words, the icj ascertained anew 68 per cent of all procedural general principles that found their place in the icj’s jurisprudence. The most cited procedural general principle in the icj’s jurisprudence is the one that the jurisdiction of the Court depends on the consent of the Parties. The icj referred to this principle in 28 decisions. The second most-relied-on procedural general principle in the icj’s jurisprudence is the one that a litigant seeking to establish the existence of facts bears the burden of proving them, ­referred to in 19 decisions. The icj referred to the general principle of ­kompetenz-kompetenz in 12 decisions and to those of estoppel and ­reci­procity in ten decisions. The general principle of diplomatic protection was m ­ entioned in nine decisions, that of exhaustion of domestic remedies in eight decisions and the one that the jurisdiction of the Court must be established on the date of filing the application in seven decisions. Only two of the procedural general principles mentioned here were ascertained anew by the icj.9

9 The pcij did not refer to the general principles that a litigant seeking to establish the existence of facts bears the burden of proving them and that the jurisdiction of the Court must be established on the date of filing the application.

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281

Figure 8.5 Substantive general principles by topic (1948–2018)

12 (32.43%)

25 (67.57%) icj only icj + pcij (adopted from pcij)

Figure 8.6 Procedural general principles (1948–2018)

Procedural general principles are classified into six categories, namely, those related to the Court’s jurisdiction, the procedure before the Court, the functioning of the Court, standing before the Court, facts and evidence and other procedural general principles. A list of all procedural general principles classified in each of these six topics is provided in the Digest. The icj identified 16 interpretative general principles, ten of which had already been referred to by the pcij. The most cited interpretative general principle in the icj’s jurisprudence is res judicata, mentioned in 33 decisions. The Court referred to the general principle of good faith in 28 decisions. The general principle that words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context finds its place in 17 icj decisions, while the two general principles that there is no occasion to resort to preparatory work if

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Figure 8.7 Procedural general principles by topic (1948–2018)

6 (37.5%)

10 (62.5%)

icj only icj + pcij (adopted from pcij)

Figure 8.8 Interpretative general principles (1948–2018)

the text of a treaty is sufficiently clear in itself and that the considerations of domestic law cannot in any event relieve the State of its international obligations are each mentioned in seven decisions. Among these, only the general principle that there is no occasion to resort to preparatory work was ascertained anew by the icj. Interpretative general principles are classified into seven topics. As the name suggests, the category of good faith and pacta sunt servanda contains only two general principles. The topic of interpretation of customary

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283

Figure 8.9 Interpretative general principles by topic (1948–2018)

i­ nternational law encompasses only one general principle. A list of all interpretative general principles classified in each of these seven topics is provided in the Digest. Just as the pcij did not, the icj also did not clarify its parameters for ascertaining general principles. On a very few occasions the Court indicated that a general principle was ‘generally accepted’, or ‘well-established’ in the ­international jurisprudence, without referring to domestic law or practices. For example, the Court in Nottebohm referred to a “well-established principle of i­ nternational law”10 that it interpreted based on “the practice of States, […] arbitral and judicial decisions and […] the opinions of writers”.11 However, the majority of the icj-ascertained general principles were not identified on any basis or external evidence. For example, the Court in Corfu 10

11

Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 13 (6 Apr.) (referring to the general principle “that ‘it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection’”, quoting ­Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 16 (28 Feb.). See also ibid., at 23. Ibid., at 23.

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Channel noted that certain general principles were “well-recognized”12 without relying on any other basis or external evidence; and in Right of Passage the Court stated that a general principle was “generally accepted”13 by relying on its Nottebohm decision. The icj did not ascertain any general principle by relying on domestic law, although it referred to domestic law on a few occasions. For example, the Court referred to domestic law in Barcelona Traction in relation to the already-­ ascertained general principle of diplomatic protection. In deciding whether a limited company with shareholders qualifies for diplomatic protection, it consulted the “rules generally accepted by municipal legal systems which recognize the limited company whose capital is represented by shares”,14 without analogising domestic law to international law. This instance could have been considered as an instance of the Court ascertaining a general principle with a mixed (domestic and judicial) underpinning. However, for the purposes of this study, diplomatic protection remains a general principle with a (solely) judicial underpinning. The icj also referred to ‘domestic principles’. For example, in Barcelona Traction it referred to the domestic notion of the “‘lifting of the corporate veil’”15 as a ‘domestic principle’ and pointed to “[t]he wealth of practice already accumulated on the subject in municipal law […] to protect third persons such as a creditor or purchaser, or to prevent the evasion of legal requirements or of obligations”.16 The Court did not consider the domestic principle of ‘lifting the corporate veil’ to be also a general principle, i.e., a norm of international law. It did imply, however, that “there may in principle be special circumstances which justify the lifting of the veil in the interest of shareholders”,17 but stopped 12

Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4, at 22 (9 Apr.) (noting that Albania’s international obligations were not based on the 1907 Hague Convention No. viii). 13 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.) (referring to the “rule of law […] that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its Declaration, in whole or in part, cannot divest the Court of jurisdiction”). See also Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 123 (18 Nov.) (not referring to the same general principle as to a ‘principle’ nor citing any basis in ascertaining it, noting that “the lapse of the Declaration cannot deprive the Court of the jurisdiction which resulted from the combined application of Article 36 of the Statute and the two Declarations”). 14 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶50 (5 Feb.). The Court stated “that international law has had to recognize the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction”. Ibid., at ¶38. 15 Ibid., at ¶56. 16 Ibid. 17 Ibid., at ¶58.

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short of giving examples of such circumstances. An exception to the rule is the Court’s reasoning in Ahmadou Sadio Diallo, where it exceptionally classified a ‘domestic principle’ as a norm of international law because – as the Court ­reasoned – this ‘domestic principle’ had been repeatedly acknowledged in ­international law.18 62.3 per cent of all 130 general principles identified by the icj have a judicial underpinning, 26.1 per cent have an international underpinning, and 11.6 per cent have a mixed (international and judicial) underpinning. In ascertaining general principles with an international underpinning, the Court resorted to the United Nations Charter, its Statute, the Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic Relations, the Convention on the Prevention and Punishment of the Crime of Genocide, the Preamble to the General Act of the 1906 Act of Algeciras,19 the 1958 Geneva Convention on the High Seas,20 and the Convention for Establishment of the Inter-Governmental Maritime Consultative Organization,21 to name but a few. Due to its incorporation in the United Nations Charter, the Court was also able to consider Article 22 of the now-defunct Covenant of the League of Nations.22 15 (11.54%) 34 (26.15%)

81 (62.31%) Domestic internatoinal Judicial Mixed 18 19 20 21 22

Figure 8.10 Underpinning of general principles (1948–2018)

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶155. Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176, at 183, 184, 197 (27 Aug.). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3, at ¶67 (25 July). Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion [1960] i.c.j. 150, at 160–161 (8 June). International Status of South West Africa, Advisory Opinion [1950] i.c.j. 128, at 131–134, 137 (11 July) (finding that South Africa had an international obligation under Article 22, which provided for the general principles of non-annexation and that of the ‘sacred trust of civilization’).

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The Court ascertained general principles also in United Nations (UN) ­ eneral Assembly Resolutions. For example, in Western Sahara it noted that G the UN General Assembly R ­ esolution 1514 (xv) embodies the general principle of self-determination.23 8.3

Selected Substantive General Principles

Over the course of its jurisprudence, the icj relied on 77 substantive general principles. The icj ascertained anew 61 substantive general principles and borrowed 16 from the pcij’s jurisprudence. Half of all substantive general principles ascertained by the icj (77) had a judicial underpinning. 40 per cent of the substantive general principles ­ascertained by the icj had an international underpinning and 9 per cent a mixed (international and judicial) underpinning. None of the substantive general principles ascertained by the icj had a domestic underpinning. This section considers only two substantive general principles, namely, those of rebus sic stantibus and uti possidetis juris. While the former belongs to the realm of the law of treaties, the latter forms part of the law of State succession. Both of these general principles were first ascertained by the pcij before they were relied upon by the icj. 8.3.1 General Principles Related to the Law of Treaties The icj’s jurisprudence refers to a total of six general principles that are related to the law of treaties, namely, the general principles that a treaty between two States cannot affect the rights of a third State (or res inter alios acta24), that a ­multilateral convention is the result of an agreement freely concluded upon its clauses, the principle of continuity of the boundary and territorial treaties, the general principle that regulates the termination of a treaty relationship on account of breach and that of rebus sic stantibus. Only the general principle of rebus sic stantibus is discussed here.

23 24

Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶68 (16 Oct.). Fellmeth and Horwitz translate the term ‘res inter alios acta’ as “a matter between others”, meaning “[a] matter or rule not legally relevant to a specific person or entity: a matter creating no third-party rights or duties [or …] [a] maxim meaning that treaties, agreements, or other legal instruments cannot derogate from the rights of, or create obligations for, non-parties to the instrument”. Fellmeth and Horwitz, Guide to Latin in International Law (­Oxford: Oxford University Press, 2009), at 252.

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8.3.1.1 General Principle of Rebus Sic Stantibus Rebus sic stantibus (or the general principle of fundamental change of circumstances)25 is one of the general principles related to the termination of treaties. It is also encompassed in Article 62 vclt. This is a substantive general principle with an international underpinning,26 which appears in two pcij and three icj decisions. Considered already in the pcij’s Nationality Decrees issued in Tunis and Morocco and Free Zones of Upper Savoy and District of Gex, the icj confirmed its existence in its 1973 Fisheries Jurisdiction decision by noting that “[i]n these statements the Government of Iceland is basing itself on the principle of ­termination of a treaty by reason of change of circumstances”.27 The Court continued by stating that [i]nternational law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty.28 The vclt, which provides for the same obligation in Article 62 vclt, was not yet in force at the time of that decision in 1973. However, the Court applied the norm codified in Article 62 by noting that it embodies the general principle of rebus sic stantibus and reflects a norm of customary international law.29 ­Ultimately, the Court did not apply rebus sic stantibus in its Fisheries Jurisdiction case because it found that there was no change in circumstances. As it explained, in order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to 25

Fellmeth and Horwitz translate the term ‘clausula rebus sic stantibus’ as “by the clause the situation thus remaining” and interpret this phrase to mean that “international instruments […] cease to be obligatory when the facts that were a necessary precondition to the agreement have fundamentally changed so as to undermine the intent of the parties”. Ibid., at 55. 26 The general principle of rebus sic stantibus is classified under Digest number 7. 27 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶36 (2 Feb.). 28 Ibid. 29 Ibid.

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be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken. […] [T]he jurisdictional obligation [has] not been radically transformed in its extent; it has remained precisely what it was in 1961.30 The Court in its 1978 Aegean Sea Continental Shelf clarified that rebus sic stantibus does not apply to land and maritime boundary agreements,31 and in its 1997 Gabčíkovo-Nagymaros Project that [a] fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty.32 Furthermore, the Court observed that the general principle of rebus sic stantibus “applie[s] only in exceptional cases”,33 because of its potential effect on the stability of treaty relations among States. 8.3.2 General Principles Related to State Succession Among the general principles ascertained by the icj in the realm of State succession is the general principle of State succession, general principle of uti possidetis juris, general principle of ‘automatic succession’ in the case of certain types of treaties and general principle of the stability of boundaries. The section below considers only the general principle of uti possidetis juris. 8.3.2.1 General Principle of Uti Possidetis Juris The general principle of uti possidetis juris34 is a substantive one with a mixed underpinning.35 This general principle appears in two pcij and in 11 icj decisions. 30 Ibid., at ¶43. 31 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶85 (19 Dec.). 32 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶104 (25 Sept.). 33 Ibid. 34 Fellmeth and Horwitz translate the ‘uti possidetis’ as “so that you may possess” and explain it to mean that “change in sovereignty over a territory, especially due to independence following decolonization, does not ipso facto alter that territory’s administrative boundaries as established by colonial authorities out of respect for succession to legal title by the new sovereign”. Fellmeth and Horwitz, above n. 24, at 287. 35 The general principle of uti possidetis juris is classified under Digest number 36.

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Uti possidetis juris played an important role in the icj’s jurisprudence, especially in the context of decolonisation, as “part of the ordinary operation of the machinery of State succession”.36 The Court, for example, in Frontier Dispute (Burkina Faso/Mali), said that this general principle is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the ­independence and stability of new States being endangered by fratricidal ­struggles provoked by the challenging of frontiers following the withdrawal of the administering power.37 Uti possidetis juris confers legal title over effective possession and secures ­borders.38 The icj’s reliance on it “[gave] rise to th[e] respect for intangibility of frontiers”39 and transformed administrative boundaries into international boundaries.40 Pursuant to this general principle, “[b]y becoming indepen­ dent, a new State acquires sovereignty with the territorial base and ­boundaries left to it by the colonial power”.41 The Court also noted that “a key aspect of the principle is the denial of the possibility of terra nullius”.42 However, uti ­possidetis juris allows for boundaries to change over time with a decision of a domestic court or with an agreement between the Parties.43 The pcij, although not referring to this general priciple as uti possidetis juris, took note of its content, namely, that transfer of public property resulting from a cession of territory had to be interpreted according to the law at the time when the transfer of sovereignty took place.44 And the icj in Land, Island and Maritime Frontier Dispute affirmed that “uti possidetis juris is essentially a ­retrospective principle, investing as international boundaries administrative 36

37 38 39 40 41 42 43 44

Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶30 (22 Dec.). The Court said that “[t]here is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis”. Ibid., at ¶24. Ibid., at ¶20. Ibid., at ¶23. Ibid., at ¶20. Ibid., at ¶23. Ibid., at ¶30. Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶42 (11 Sept.). See, e.g., ibid., at ¶¶67, 80. See, e.g., Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 41 (25 May) (ascertaining the ownership of one of the factories in Chorzow and noting that “Oberschlesische is a company controlled by German nationals”).

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l­imits intended originally for quite other purposes”.45 However, although requiring the Court to consider historical laws, the general principle of uti possidetis juris forms part of positive international law and is not derived from or related to colonial law.46 The Court in Frontier Dispute (Benin/Niger) also clarified that the application of uti possidetis juris “must be assessed in relation to present-day physical realities”.47 The Court acknowledged that uti possidetis juris had been relied upon by international arbitral tribunals48 and was also included in some treaties that pre-dated the establishment of the icj. For example, the Court noted that an 1895 treaty “reaffirmed the principle of the uti possideits juris”49 – “the timehallowed principle”.50 Despite “hav[ing] been first invoked and applied in Spanish America”,51 uti possidetis juris is a general principle that applies to the entire international community. As the Court noted, the principle [of uti possidetis juris] is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.52 However, the Court in Territorial and Maritime Dispute in the Caribbean Sea noted that it could not apply it to islands that had “no connection with the mainland coast”.53 This general principle is also not applicable to disputing Parties who are original Parties to treaties rather than their successors.54 45 46 47 48 49 50 51 52 53

54

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶43 (11 Sept.). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶149 (22 Dec.) (noting that uti possidetis is “fully in conformity with contemporary international law”). Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90, at ¶25 (12 July). See, e.g., Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶28 (11 Sept.). Ibid., at ¶34. Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶25 (22 Dec.). Ibid., at ¶20. See also ibid., at ¶21. Ibid., at ¶20. See also ibid., at ¶21. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659, at ¶157 (8 Oct.). The parties could not rely on uti possidetis because neither had “established that [… they] had title to these islands by virtue of uti possidetis”. Ibid., at ¶167. See also Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624, at ¶¶64–65 (19 Nov.) (noting that “in the present case the principle of uti possidetis juris affords inadequate assistance in determining sovereignty over the maritime features in dispute”). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶75 (3 Feb.).

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291

Selected Procedural General Principles

Between 1948 and 2018, the icj relied on 37 procedural general principles, 12 of which were already ascertained by the pcij. The vast majority of the procedural general principles ascertained by the icj (29 out of 37) have a judicial underpinning, followed by six with a mixed (international and judicial) and two with an international underpinning. None of the procedural general principles had a domestic underpinning. This section considers six procedural general principles related to the Court’s jurisdiction and its evidentiary proceedings, namely, the principles that the Court’s jurisdiction depends on the Parties’ consent, forum prorogatum, non ultra petita, kompetenz-kompetenz, the general principle that the Court must not exceed the jurisdiction conferred upon it by the Parties but must exercise its jurisdiction to the maximum, and onus probandi incumbit ­actori. Half of these general principles appear already in the pcij ­jurisprudence. Out of these six general principles, three have a mixed underpinning and three a judicial underpinning. 8.4.1 General Principles Related to the Court’s Jurisdiction In total, the icj ascertained nine general principles that relate to its jurisdiction, two of which were previously mentioned by the pcij. The text below ­considers five general principles, namely, the general principles that the jurisdiction of the Court depends on the consent of the Parties, forum prorogatum, non ultra petita and kompetenz-kompetenz and the general principle that the Court must not exceed the jurisdiction conferred upon it by the Parties but must exercise its jurisdiction to the maximum. The Court referred to the general principles related to the Court’s jurisdiction in conjunction with Article 36 of its Statute.55 However, its reference to the general principles allowed it on occasions to consider situations that are not necessarily covered by Article 36. Even before the icj began operating, the pcij foresaw that it could create rules additional to those provided in its Statute and Rules, when it noted that [n]either the Statute nor the Rules of Court contain any rule regarding the procedure to be followed in the event of an objection being taken in limine litis to the Court’s jurisdiction. The Court therefore is at liberty to adopt the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international 55

Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 36.

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tribunal and most in conformity with the fundamental principles of international law.56 8.4.1.1

General Principle That the Jurisdiction of the Court Depends on the Parties’ Consent The general principle that the jurisdiction of the Court depends on the consent of the Parties is a procedural one with a mixed (international and judicial) underpinning.57 This general principle not only appeared in five pcij decisions (discussed in Chapter 7), but it is also one of the most cited general principles in the icj’s jurisprudence, referred to by the Court in 28 decisions. The general principle that the Court’s jurisdiction depends on the Parties’ consent is also embodied in Article 36(2) of the Court’s Statute, which provides that [t]he states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning […].58 The Court referred to Article 36 when ascertaining this principle;59 however, the Court’s reliance on it expanded Article 36’s scope. For example, unlike Article 36 which enables the States to accept the Court’s jurisdiction by means of a declaration,60 the general principle that the Court’s jurisdiction depends on the Parties’ consent allows States to accept that jurisdiction also by means of ‘mere declarations’ and conclusive acts.61 56 57 58 59 60

61

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 16 (30 Aug.). The general principle that the jurisdiction of the Court depends on the consent of the Parties is classified under Digest number 95. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 36(2). See, e.g., Aerial Incident of 27 July 1955 (Isr. v. Bulg.), Preliminary Objections [1959] i.c.j. 127, at 142 (26 May). See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶45 (26 Nov.); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶44 (27 June) (noting that the “Court’s jurisdiction […] is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute”). Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No.15, at 23–25 (16 Apr.) (noting that “the Court has accepted as sufficient for the purpose of establishing its jurisdiction a mere declaration made by the Respondent in the course of the proceedings. […] And there seems to be no doubt that the consent of a State to the

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The Court also extended the application of this general principle to Article 37 of its Statute, which facilitated the transition between the pcij and the icj. As the Court observed in the Barcelona Traction case, Article 37 provided an example of “the familiar principle of consent given generally and in advance”.62 The general principle that the Court’s jurisdiction depends on the consent of the Parties protects States from being compelled to appear before the Court. This general principle was also formulated as “the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”,63 and ensures that States are not bound by decisions handed down in proceedings to which they did not consent.64 As the Court said in Land, Island and Maritime Frontier Dispute, [t]hose States [consenting to Court’s jurisdiction] are the ‘parties’ to the proceedings, and are bound by the Court’s eventual decision because they have agreed to confer jurisdiction on the Court to decide the case, the decision of the Court having binding force as provided for in Article 59 of the Statute.65 The icj limited the possibilities of creating exceptions to this general principle by noting that exceptions may be established only based on a specific provision in its Statute.66 According to the Court, States may subject their consent

62

63 64 65 66

submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it”; without referring to Article 36 of its Statute). Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Preliminary Objections [1964] i.c.j. 6, at 36 (24 July). Cf. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶46 (26 Nov.). Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶33 (16 Oct.). See also Applicability of Article iv, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] i.c.j. 177, at ¶38 (15 Dec.). Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240, at ¶53 (26 June) (noting that unlike the national courts, “the Court may not compel a State to appear before it, even by way of intervention”). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92, at ¶95 (13 Sept.). Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] i.c.j. 3, at ¶23 (21 Mar.) (noting that Article 62 of its Statute did not exempt this general principle, “[t]hose principles would be violated if intervention was made exempt from the requirement of a common and mutual consent of the three States”). The pcij identified an exception to this general principle when noting that it does not apply to instances when another authority has exclusive jurisdiction. See Rights of Minorities in Upper Silesia

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to the Court’s jurisdiction “to whatever pre-conditions, consistent with the Statute, as may be agreed between them”,67 however, no automatic exceptions to this general principle are possible by “the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute”.68 As the Court said in its 1998 Fisheries ­Jurisdiction decision, [t]he fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations.69 The Court considered the general principle of consent to the Court’s jurisdiction also alongside the so-called ‘Monetary Gold’ principle,70 which provides that when the rights and interests of a third State form the subject-matter of any decision, the Court will decline to exercise jurisdiction. The ‘Monetary Gold’ principle allowed the Court to decline its jurisdiction despite the Parties’ consent. As the Court said, [t]o adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.71

67 68

69 70

71

(Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15, at 23 (26 Apr.); Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 37 (13 Sept.). Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192, at ¶43 (10 Dec.). Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6, at ¶125 (3 Feb.). See also ibid., at ¶78 (noting that “the fact that a dispute concerns non-compliance with a peremptory norm of general international law cannot suffice to found the Court’s jurisdiction to entertain such a dispute”). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶54 (4 Dec.). The general principle that the Court should decline to exercise jurisdiction if the rights and interests of a third State would form the subject-matter of any decision which the Court might take (also known as the ‘Monetary Gold’ principle) is classified under Digest number 101. Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19, at 32 (15 June).

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Once the Court determines that it has jurisdiction pursuant to the general principle that its jurisdiction depends on the Parties’ consent, subsequent unilateral actions or changes in circumstances cannot influence the Court’s decision. For example, in Nottebohm the Court said that the fact that a declaration expired after the Court had already established jurisdiction does not have an effect on the Court’s juridiction.72 Similarly, the Court in Monetary Gold noted that Italy could not undermine its consent to jurisdiction by raising pre­ liminary objections to the Court’s jurisdiction.73 Based on these findings, the Court identified another general principle, namely, that once it establishes ­jurisdiction, unilateral action by a Party cannot have an effect on that jurisdiction.74 Athough this general principle is not applicable to the Court’s advisory proceedings,75 the Court said that “[it nevertheless] continues to be relevant [in advisory opinions], not for the Court’s competence, but for the appreciation of the propriety of giving an opinion”.76 72

73

74

75

76

Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 122–124 (18 Nov.) (noting “that the expiry […] of the five-year period for which the Government of ­Guatemala subscribed to a Declaration accepting the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute, does not affect any jurisdiction which the Court may have to deal with claim presented in the Application [by Liechtenstein]”). Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19, at 29 (15 June) (noting that “[i]t cannot be inferred from the making of the Preliminary Objection that Italy’s acceptance of jurisdiction has become less complete or less positive than was contemplated in the Washington Statement”). Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 123 (18 Nov.); Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412, at ¶95 (18 Nov.). See also Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶36 (27 June). The general principle that once the Court establishes jurisdiction, unilateral action of the Party cannot have effect on the Court’s jurisdiction is classified under Digest number 96. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192, at ¶43 (10 Dec.); Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 65, at 71 (30 Mar.); Western Sahara, ­Advisory Opinion [1975] i.c.j. 12, at ¶21 (16 Oct.); Applicability of Article vi, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] i.c.j. 177, at ¶31 (15 Dec.). Western Sahara, Advisory Opinion [1975] i.c.j. 12, at ¶32 (16 Oct.). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶50 (9 July) (“consider[ing] that to give an opinion would [not] have the effect of circumventing the principle of consent to judicial settlement”).

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8.4.1.2 General Principle of Forum Prorogatum The general principle of forum prorogatum77 (also known as the general principle that the jurisdiction of the Court is limited to the extent accepted by the Parties) is a procedural one with a mixed (international and judicial) underpinning.78 The icj relied on this general principle in three decisions, while the pcij did not refer to it in its jurisprudence. The general principle of forum prorogatum enables the respondent State that has not consented to the jurisdiction of the Court at the time of the filing of the application to subsequently accept Court’s jurisdiction.79 The Court ­referred to this general principle in tandem with the one that the Court’s jurisdiction depends on the consent of the Parties.80 The icj confirmed the existence of forum prorogatum in Anglo-Iranian Oil Co., but could not apply it to that case because Iran’s actions did not signal any consent to the Court’s jurisdiction.81 The icj invoked this general principle also in Certain Questions of Mutual Assistance in Criminal Matters by stating that “great care must be taken regarding the scope of the consent as circumscribed by the respondent State”.82 Along the same lines, the Court in the 1996 Application of the Genocide Convention decision noted that it could not extend its jurisdiction beyond Article ix of the Genocide Convention because the R ­ espondent “has [not] given ‘voluntary and indisputable’ consent”83 that would allow the Court to rely on the general principle of forum prorogatum.

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Fellmeth and Horwitz translate ‘forum prorogatum’ as “the deferred forum” and explain the term as the Parties’ default forum when the Parties acquiesce to the Court’s jurisdiction with an ad hoc agreement. Fellmeth and Horwitz, above n. 24, at 112. The general principle of forum prorogatum (or the general principle that the jurisdiction of the Court is limited to the extent accepted by the Parties) is classified under Digest number 97. Website of the International Court of Justice, Basis of the Court’s jurisdiction (‘Forum prorogatum’) (last visited on 20 May 2019). See, e.g., Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161, at ¶42 (6 Nov.); Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶48 (4 June); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70, at ¶131 (1 Apr.). Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 114 (22 July). Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶87 (4 June). See also ibid., at ¶83. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595, at ¶40 (11 July).

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8.4.1.3 General Principle of Non Ultra Petita The general principle of non ultra petita84 is a procedural one with a judicial underpinning.85 This general principle appears in one pcij and six icj decisions. Non ultra petita is a well-established principle in the Court’s jurisprudence,86 which provides that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions.87 Although limiting the Court to points indicated in States’ submissions, this general principle does not limit the Court’s task.88 As the Court noted in the Arrest Warrant case, “[w]hile the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning”.89 For example, the general principle of non ultra petita did not prevent the Court in Frontier Dispute (Burkina Faso/Niger) from attributing the territory to one of the Parties also when the Special Agreement tasked the Court only with determining the boundary between the States.90 Similarly, the Court in Arrest Warrant observed

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Fellmeth and Horwitz translate ‘non ultra petita’ as “not beyond the pleadings” and note that this expression means that “a tribunal should not unnecessarily decide questions of law or fact not raised by the parties to a dispute, on the theory that the tribunal’s jurisdiction is limited to deciding matters raised by the parties”. Fellmeth and Horwitz, above n. 24, at 200. The general principle of non ultra petita is classified under Digest number 117. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶43 (14 Feb.); Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281, at ¶71 (11 Nov.). Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395, at 402 (27 Nov.). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶126 (11 Sept.); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶43 (14 Feb.); Frontier Dispute (Burk. Faso/Niger), Judgment [2013] i.c.j. 44, at ¶74 (16 Apr.). Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶43 (14 Feb.). Frontier Dispute (Burk. Faso/Niger), Judgment [2013] i.c.j. 44, at ¶74 (16 Apr.).

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that it “may […] deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable”.91 8.4.1.4

General Principle That the Court Must Not Exceed the Jurisdiction Conferred upon It by the Parties, but Must Exercise Its Jurisdiction to the Maximum The general principle that the Court must not exceed the jurisdiction conferred upon it by the Parties, but must exercise its jurisdiction to the maximum is a procedural one with a judicial underpinning.92 This general principle did not appear in the pcij’s jurisprudence. Thus far, the icj has mentioned it in two decisions handed down in 1985. This general principle enables the Court to expand its jurisdiction while respecting the limits posed by the general principle of non ultra petita. As the Court noted in Continental Shelf (Libya/Malta), “[t]he Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent”.93 By citing to the Continental Shelf case, the Chamber in the Frontier Dispute (Burkina Faso/Mali) stated that “[it] has recently confirmed [this] principle”.94 8.4.1.5 General Principle of Kompetenz-Kompetenz The general principle of kompetenz-kompetenz is a procedural one with a mixed underpinning.95 This general principle appears in one pcij decision and in 12 icj decisions. The Court in its jurisprudence between 1922 and 2018 did not name this general principle as ‘kompetenz-kompetenz’ and instead ­referred to it by describing its content. The expression ‘kompetenz-kompetenz’ does, however, appear in a few judges’ individual opinions.96 Besides existing as a general principle, kompetenz-kompetenz is also embodied in Article 36(6) of the Court’s Statute, which provides that “[i]n the event of 91 92 93 94 95 96

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶43 (14 Feb.). The general principle that the Court must not exceed the jurisdiction conferred upon it by the Parties, but must exercise its jurisdiction to its maximum is classified under Digest number 98. Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13, at ¶19 (3 June) (omitting to refer to this norm as a ‘principle’). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554, at ¶45 (22 Dec.). The general principle of kompetenz-kompetenz is classified under Digest number 94. See, e.g., Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 3, at ¶¶42–47 (17 Mar.) (Cançado Trinidade separate opinion).

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a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court”.97 The Court ascertained the general principle of kompetenz-kompetenz in the 1953 Nottebohm case by referring to Article 36(6) of its Statute, the Alabama arbitration, its earlier precedents, and the 1899 and 1907 Hague Conventions. Without referring to ‘kompetenz-kompetenz’, the Court said that in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. […] The judicial character of the Court and the rule of general international law referred to above [kompetenz-kompetenz] are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.98 The norm reflected in the general principle of kompetenz-kompetenz and in Article 36(6) predates the adoption of the Court’s Statute. However, according to the icj, this general principle assumed an even more significant role when applied to “an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation”.99 The Court in the Appeal Relating to the Jurisdiction of the icao Council noted that ‘compétence de la compétence’ becomes material only when jurisdictional clauses within treaties “[do] not suffice, and […] the Court’s jurisdiction must be sought outside them”.100 The Court also noted that “if on other grounds it appears that these [jurisdictional] decisions must be held appealable, this principle could not be permitted to prevail without defeating a priori all possibility of appeal”.101 The Court again considered this “judicial principle enshrined in Article 36, paragraph 6, of the Court’s Statute”102 in the 1973 Fisheries Jurisdiction case. In this case, the Court considered the general principle of kompetenz-kompetenz 97 98 99 100

Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 36(6). Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111, at 119, 120 (18 Nov.). Ibid., at 119. Appeal Relating to the Jurisdiction of the icao Council (India v. Pak.), Judgment [1972] i.c.j. 46, at ¶15 (18 Aug.). The Court concluded that this was not the case in this decision and it did not apply the general principle of compétence de la compétence because the jurisdictional clause within the treaties sufficed. Ibid. 101 Ibid. Pakistan claimed that the “principle of the ‘compétence de la compétence’ [i]s making the [icao] Council’s jurisdictional decisions conclusive and unappealable”. Ibid. 102 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶45 (2 Feb.).

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alongside Article 53 of its Statute, which “both entitles the Court and, in the present proceedings, requires it to pronounce upon the question of its jurisdiction”.103 Article 53 provides that (1) [w]henever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim[;] [and that] (2) [t]he Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.104 Article 53 allowed the Court to rely on this general principle proprio motu, regardless of whether the States requested the Court to do so. The Court finding that the general principle of kompetenz-kompetenz applies proprio motu resulted after a series of non-appearances before it, when between 1973 and 1980 Iceland, France, Turkey and Iran refused to participate in the proceedings.105 In relation to Turkey’s absence from the proceedings, for example, the Court noted that [i]t is to be regretted that the Turkish Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings. […] Nevertheless, the Court, in accordance with its Statute and its settled jurisprudence, must examine proprio motu the question of its own jurisdiction [pursuant to the general principle of kompetenz-kompetenz].106 The general principle of kompetenz-kompetenz allows the Court to continue its proceedings despite the States’ reluctance to participate in them, and binds the non-participating State with its decision. As the Court stated in Military

103 Ibid. 104 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 53. 105 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶¶5, 7, 10 (2 Feb.); Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶15 (20 Dec.); Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶14 (19 Dec.); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶¶33, 82 (24 May). 106 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3, at ¶15 (19 Dec.).

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and Paramilitary Activities, its decisions on jurisdiction are as binding and final as are its decisions on the merits.107 The Court emphasised that deciding whether or not it has jurisdiction over a particular case depends solely on its own interpretation.108 In the 1998 Fisheries Jurisdiction case it confirmed that “the establishment […] of jurisdiction is not a matter for the parties but for the Court itself”.109 The Court in the same decision noted that “[a]lthough a party seeking to assert a fact must bear the burden of proving it […] this has no relevance for the establishment of the Court’s jurisdiction”.110 This confirms that the ordinary rules of evidence and burden of proof do not apply in the Court’s establishment of its jurisdiction pursuant to the general principle of kompetenz-kompetenz. 8.4.2 General Principles Related to Evidentiary Proceedings The icj ascertained three general principles that relate to establishing the facts and producing evidence before the Court: the general principle that maps have only informational value and are not evidence of a frontier except when they are the physical expression of the will of the State, the general principle that the facts on which its judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case, and the general principle that a litigant seeking to establish the existence of facts bears the burden of proving them.111 Only the last general principle is considered in the section below. None of these general principles found their place in the pcij’s jurisprudence. 8.4.2.1

General Principle That the Litigant Seeking to Establish the Existence of Facts Bears the Burden of Proof The general principle that the litigant seeking to establish the existence of facts bears the burden of proof (also known as the general principle of onus

107 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14, at ¶27 (27 June) (noting that “the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment”). 108 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶86 (4 Dec.) (noting that “[t]he Court has had full freedom to interpret the text of the reservation”). 109 Ibid., at ¶37. 110 Ibid. 111 The general principles included under the sub-category ‘Facts and Evidence’ are classified under Digest numbers 126 to 128.

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probandi incumbit actori112) is a procedural general principle with a judicial underpinning.113 The icj referred to it in 19 decisions. The icj first ascertained this general principle in its 1984 Military and Paramilitary Activities decision, by noting that it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved, but is not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof.114 Neither the Court’s Statute nor its Rules provide a basis for this general principle; in ascertaining it the Court did not cite any external evidence or basis, save for its precedent.115 For example, the Court in Sovereignty over Pedra Branca observed that “[i]t is a general principle of law, confirmed by the jurisprudence of this Court”,116 while in Avena and Other Mexican Nationals the Court noted that this is a “well-settled principle in international law”117 on account of its jurisprudence. In Pulp Mills on the River Uruguay, the Court confirmed that in accordance with the well-established principle of onus probandi incumbit actori, it is the duty of the party which asserts certain facts to ­establish the existence of such facts. This principle […] has been consistently upheld by the Court.118

112 Fellmeth and Horwitz translate ‘onus probandi incumbit actori’ as “the burden of proving weights on the plaintiff” and note that it “allocate[es] the burden of proof to the party bringing a charge or instigating a legal action”. Fellmeth and Horwitz, above. n. 24, at 13. 113 The general principle that the litigant seeking to establish the existence of facts bears the burden of proof (onus probandi incumbit actori) is classified under Digest number 128. 114 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶101 (26 Nov.). 115 See, e.g., Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶37 (4 Dec.). 116 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./ Sing.), Judgment [2008] i.c.j. 12, at ¶45 (23 May). 117 Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12, at ¶55 (31 Mar.) (acknowledging that both Parties recognise this general principle). See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶204 (26 Feb.) (noting that “it is well established in general that the applicant must establish its case and that a party asserting a fact must establish it”). 118 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14, at ¶162 (20 Apr.).

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The general principle of the burden of proof outlines what is expected of States in proceedings before the Court.119 For example, the Court in Application of the Interim Accord noted that pursuant to this general principle the now-North Macedonia bore the burden of establishing those facts that supported its allegation that Greece “failed to comply with its obligation under the Interim Accord”.120 When the Court is asked “to make findings of fact […] one or other Party bear[s] the burden of proof as regards claimed facts”.121 The general principle of the burden of proof “applies to the assertions of fact both by the Applicant and the Respondent”122 and is valid for both the claims and counter-claims.123 When the burden of proof is on the applicant, the Court expects from the respondent mainly cooperation in the provision of evidence in its possession.124 The Court, however, “has recognized that this general rule may be applied flexibly in certain circumstances, where, for example, the respondent may be in a better position to establish certain facts”.125 When assessing compensation, the Court applied the general principle of onus probandi incumbit actori flexibly and reversed the burden of proof. As it stated in Ahmadou Sadio Diallo, as a general rule, it is for the party which alleges a particular fact in support of its claims to prove the existence of that fact. […] The Court also recognized that this general rule would have to be applied flexibly in this

119 Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644, at ¶159 (5 Dec.) (concluding that “the Respondent […] has not discharged its burden to demonstrate a breach of Article 7, paragraph 3 [the Interim Accord], by the Applicant”). 120 Ibid., at ¶72. 121 Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment [2009] i.c.j. 61, at ¶68 (3 Feb.). 122 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14, at ¶162 (20 Apr.). 123 “The same principles [including onus probandi incumbit actori] are applicable, mutatis mutandis, in respect of the counter-claim”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶176 (3 Feb.). 124 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14, at ¶163 (20 Apr.); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶¶172, 173 (3 Feb.). See also Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶54 (24 May). 125 Certain Activities carried out by Nicaragua in the Border Area, Compensation [2018] i.c.j., at ¶33 (2 Feb.).

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case and, in particular, that the Respondent may be in a better position to establish certain facts.126 In the 2007 Application of the Genocide Convention case, the Court noted that “[it] has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive”.127 The Court also clarified that the applicant should not be “required to prove a negative fact”,128 meaning that the applicant was not required to prove that “certain procedural guarantees to which he was entitled” were not conferred by the respondent.129 In the 2015 Application of the Genocide Convention case, the Court clarified that “[t]his principle is not an absolute one”.130 The Court explained that [t]he determination of the burden of proof is in reality dependent on the subject-matter and the nature of each dispute brought before the Court; [and that] it varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case.131 For example, the Court places the burden of proof in questions concerning the exhaustion of domestic remedies on both Parties. As the Court noted in Ahmadou Sadio Diallo, “[i]t is for the respondent to convince the Court that there were effective [and available] remedies in its domestic legal system that were not exhausted”,132 while the applicant in this case “must establish that Mr. ­Diallo exhausted any available local remedies or, if not, must show that

126 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324, at ¶15 (19 June). 127 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43, at ¶209 (26 Feb.). 128 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶174 (3 Feb.). 129 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶55 (30 Nov.). 130 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Judgment [2015] i.c.j., at ¶172 (3 Feb.). See also ibid., at ¶¶173–176. 131 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639, at ¶54 (30 Nov.). 132 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶44 (24 May).

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exceptional circumstances justified the fact that he did not do so”.133 Similarly, when considering a challenge to a regulation, the Court noted that “[i]t will not be enough […] simply to assert in a general way that it is unreasonable. Concrete and specific facts will be required to persuade a court to come to that conclusion”.134 When the Party (or Parties) does not meet the standard posed by the general principle of the burden of proof and “‘in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved’”.135 For example, the Court in Land and Maritime Boundary between Cameroon and Nigeria was “unable to form any ‘clear and precise’ picture of the events taking place in Bakassi in February 1996”,136 meaning that “Cameroon has not established the facts which it bears the burden of proving”,137 and the Court, consequently, rejected Cameroon’s submissions.138 8.5

Selected Interpretative General Principles

The icj’s jurisprudence refers to a total of 16 interpretative general principles, six of which do not appear also in the pcij’s jurisprudence. The majority of the interpretative general principles relied upon by the icj have a judicial underpinning (13 out of 16), two have a mixed underpinning and one has an international underpinning. There is no interpretative general principle that the Court ascertained by reference to domestic laws. 133 Ibid., referring to Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15, at ¶59 (20 July). 134 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213, at ¶101 (13 July). 135 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303, at ¶321 (10 Oct.), quoting Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, ¶101 (26 Nov.). 136 Ibid., at ¶322. 137 Ibid. 138 See also Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161, at ¶¶57, 59, 61 (6 Nov.) (noting that the United States did not meet “the burden of proof of the existence of an armed attack by Iran on the United States”); Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644, at ¶¶138, 159 (5 Dec.) (noting that “the Respondent [Greece] has not met its burden of demonstrating that the Applicant breached its obligation to negotiate in good faith [… and] has not discharged its burden to demonstrate a breach of Article 7, paragraph 3, by the Applicant”).

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Out of the total of the 16 interpretative general principles ascertained in the icj’s jurisprudence, six are considered in the text below. Two of these relate to treaty interpretation, three may be applied to the interpretation of instruments other than treaties. The last considered is the general principle of good faith – a general principle that is between the interpretative and the substantive type. Four of the general principles considered here were already mentioned by the pcij, while the icj ascertained the remaining two anew. Several interpretative general principles ascertained by the pcij and in the early icj jurisprudence were drafted into the vclt. The 1966 report of the International Law Commission – the drafter of the vclt – notes that Sir G. Fitzmaurice, the previous Special Rapporteur on the law of treaties, in his private writings deduced six principles from the jurisprudence of the Permanent Court and the International Court which he regarded as the major principles of interpretation.139 However, ever since the adoption of the vclt in 1969 (and even before it entered into force in 1980), the Court in interpreting treaty provisions has preferred to rely on Articles 31 and 32 vclt and its customary counterparts,140 rather than referring to the interpretative general principles it previously ­relied upon. On occasions, the Court has failed to specify what source the rules of treaty interpretation come from. For example, in Land, Island and Maritime Frontier Dispute it invoked “the normal rules of treaty interpretation”141 although El Salvador (a Party to the dispute) only signed but did not also ratify the vclt. In that instance, the Court has relied either on the norm of customary international law that is reflective of Article 31 or on the interpretative general principles. 139 Int’l L. Comm’n, Documents of the second part of the seventeenth session and of the eighteenth session including the reports of the Commission to the General Assembly, U.N. Doc. A/CN.4/SER.A/1966/Add.1, at 218 (emphasis added). The report also notes that “[m]ost cases submitted to international adjudication involve the interpretation of treaties, and the jurisprudence of international tribunals is rich in reference to principles and maxims of interpretation”. Ibid. 140 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.) (acknowledging for the first time that “Articles 31 and 32 of the Vienna Convention on the Law of Treaties […] may in many respects be considered as a codification of existing customary international law on the point”). See also Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66, at ¶19 (8 July). 141 Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶373 (11 Sept.). See also ibid., at ¶380 (“considering the ordinary meaning to be given to the terms of the treaty”); Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, at 474.

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Similarly, the Court in the Dispute regarding Navigational and Related Rights referred to “the principles of interpretation set forth in Articles 31 and 32 of the Vienna Convention”,142 which could represent the Court’s reference to all three sources of international law, including to general principles that had provided the basis for the vclt’s interpretative provisions. Not all general principles that provided the basis for the vclt are here considered to be treaty-specific. In fact, the general principle of the natural and ordinary meaning of the words in their context – the very principle codified in Article 31(1) vclt143 – is not specific to treaty interpretation and may be applied to the interpretation of other international instruments. In comparison, Article 31(1) vclt and its customary counterparts regulate only the interpretation of treaty provisions. 8.5.1 General Principles Specific to Treaty Interpretation The two general principles specific to treaty interpretation discussed below are the general principle that a legal text should be interpreted in such a way that a reason and a meaning be attributed to every word in the text and the general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself. Both are newly-ascertained in the icj’s jurisprudence. 8.5.1.1

General Principle That There Is No Occasion to Resort to Preparatory Work If the Text of a Treaty Is Sufficiently Clear in Itself The general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself is an interpretative one with a judicial underpinning,144 mentioned in two pcij and three icj decisions. A parallel to this general principle may be found in Article 32 vclt.145

142 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213, at ¶47 (13 July) (emphasis added). 143 Article 31(1) provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 31(1). 144 The general principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself is classified under Digest number 139. 145 Article 32 provides that “[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or

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The Court ascertained this general principle in the 1950 Admission of a State to the United Nations advisory opinion. Without referring to a ‘principle’, the Court noted that because it had “no difficulty in ascertaining the natural and ordinary meaning of the words in question [in the United Nations Charter] and no difficulty in giving effect to them”,146 the Court did not need to rely on the preparatory work of the Charter. The Court in 1973 noted that “[it] would normally apply the principle it reaffirmed in its 1950 Advisory Opinion […] according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself”.147 In the four subsequent decisions that refer to this general principle, delivered between 1994 and 2002, the Court uses the same exact wording in describing it, namely, that [i]nterpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.148 The Court confirmed this also in its Application of cerd decision, when it noted that “the Court need not resort to supplementary means of interpreta­ tion such as the travaux préparatoires of cerd and the circumstances of its

­ nreasonable”. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, u art. 32. 146 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.). Cf. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70, at ¶142 (1 Apr.) (noting that “[it] need not resort to supplementary means of interpretation such as the travaux préparatoires of cerd” but concluding that since “both Parties have made extensive arguments relating to the travaux préparatoires […] and the further fact that in other cases, the Court had resorted to the travaux préparatoires in order to confirm its reading of the relevant texts […] the Court considers that in this case a presentation of the Parties’ positions and an examination of the travaux préparatoires is warranted”). 147 Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3, at ¶17 (2 Feb.) (emphasis added). The Court in this case “undert[ook] a brief review of the negotiations that led up to that exchange”. Ibid. 148 Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶41 (3 Feb.). See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), ­Jurisdiction and Admissibility [1995] i.c.j. 6, at ¶33 (15 Feb.); Kasikili/Sedudu Island (Bots./ Namib.), Judgment [1999] i.c.j. 1045, at ¶20 (13 Dec.); Sovereignty over Pulau Ligitan and ­Pulau Sipadan (Indon. /Malay.), Judgment [2002] i.c.j. 625, at ¶18 (17 Dec.).

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conclusion, to determine the meaning of Article 22”.149 However, the Court in this case resorted to cerd’s preparatory work “to confirm its reading of the ­relevant texts”.150 8.5.1.2

General Principle That a Legal Text Be Interpreted in Such a Way That a Reason and a Meaning Can Be Attributed to Every Word in the Text The general principle that a legal text be interpreted in such a way that a reason and a meaning can be attributed to every word in the text is an interpretative one with a judicial underpinning.151 This general principle was mentioned in only one icj decision. Although specific to treaty interpretation, this general principle was not codified into the vclt. The icj considered this general principle in Anglo-Iranian Oil Co. on the suggestion of the United Kingdom. The United Kingdom “argued that the ­Declaration would contain some superfluous words if it is interpreted as contended by Iran”.152 However, the Court noted that this principle [that a legal text be interpreted in such a way that a reason and a meaning can be attributed to every word in the text] should in general be applied when interpreting the text of a treaty.153 Because Iran’s declaration of the acceptance of the Court’s jurisdiction was a unilateral statement rather than a treaty, the Court was unable to apply this general principle in interpreting it. 8.5.2 General Principles Not Specific to Treaty Interpretation The icj ascertained three general principles not specific to treaty interpretation, namely, the principle of effectiveness, the principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context unless such interpretation would lead to something unreasonable or absurd, and the principle that a reservation to a

149 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70, at ¶142 (1 Apr.). 150 Ibid. 151 The general principle that a legal text be interpreted in such a way that a reason and a meaning can be attributed to every word in the text is classified under Digest number 137. 152 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 105 (22 July). 153 Ibid.

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declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way. The text below discusses all three general principles. 8.5.2.1

General Principle of the Natural and Ordinary Meaning of the Words in Their Context The general principle of the natural and ordinary meaning of the words in their context (or in its longer form, the general principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context unless such interpretation would lead to something unreasonable or absurd) is an interpretative one with a judicial underpinning.154 This general principle is reflected in Article 31(1) vclt.155 The general principle of the natural and ordinary meaning of the words in their context was already ascertained by the pcij in one decision, and was relied upon in eight icj decisions up to 1991; the Court began referring to this norm in its post-1991 jurisprudence solely as part of the vclt or customary ­international law. First ascertained in the 1925 Polish Postal Service in Danzig advisory opinion, the pcij referred to it as “a cardinal principle of interpretation”.156 The icj confirmed the pcij’s findings in its 1950 Competence of the General Assembly advisory opinion by noting that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the ­relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter.157 In Temple of Preah Vihear, the Court referred to the general principle of natural and ordinary meaning as the first among the “normal canons of

154 The general principle that words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd is classified under Digest number 144. 155 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 31(1). 156 Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11, at 39 (16 May). 157 Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.). See also Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.).

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interpretation”.158 In this case, the Court said that this general principle “does not entail that words and phrases are always to be interpreted in a purely literal way; and [… it does] not apply where it would lead to ‘something unreasonable or absurd’”.159 The Court in its earlier 1952 Anglo-Iranian Oil Co. decision similarly stated that [it] cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory ­jurisdiction of the Court.160 The Court in the Constitution of the Maritime Safety Committee advisory opinion added that “[t]he language employed […] in its natural and ordinary meaning conveys this intent of the draftsmen”.161 In the 1962 South West Africa case, the Court clarified that this general principle “is not an absolute one”,162 because it does not apply when the “interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained”.163 The Court in the Arbitral Award of 31 July 1989 confirmed that it had a duty to interpret the words of the text “‘in their natural and ordinary meaning in the context in which they occur’”,164 by relying on its 1950 Competence of the General Assembly advisory opinion. However, in all subsequent decisions, the Court referred either to Article 31 vclt or its customary counterpart, without mentioning its jurisprudence referring to this norm as a general principle. For example, the Court in Land, Island and Maritime Frontier Dispute referred solely to Article 31 vclt, without referring to the general principle of the natural and ordinary meaning of the words in their context, when noting that 158 Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 32 (26 May). 159 Ibid., at 32–33. 160 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 104 (22 July). 161 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion [1960] i.c.j. 150, at 160–161 (8 June). 162 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections [1962] i.c.j. 319, at 336 (21 Dec.). 163 Ibid. 164 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53, at ¶48 (12 Nov.), quoting Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4, at 8 (3 Mar.).

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[i]f account be taken of the basic rule of Article 31 of the Vienna Convention on the Law of Treaties, according to which a treaty shall be interpreted ‘in accordance with the ordinary meaning to be given to the terms’.165 Unlike Article 31 vclt (and its customary counterpart166), this general principle is not limited to treaty interpretation as the provisions of the vclt are. For example, the Court in Right of Passage applied this general principle to States’ unilateral declarations – to which the vclt treaty provisions and its customary counterparts are not applicable. In this case, the Court interpreted the expression ‘with the effect from the moment of such notification’ (which was part of Portugal’s declaration of acceptance of the Court’s jurisdiction) and said that [c]onstrued in their ordinary sense, these words mean simply that a notification under the Third Condition [limiting the application of Article 36 of the Court’s Statute] applies only to disputes brought before the Court after the date of the notification.167 Had this norm been only part of the vclt and its customary counterpart, the Court would not have been able to apply it to Portugal’s unilateral declaration. Its existence as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute allowed the Court to apply it to international instruments other than treaties.168 The Court’s preference for relying on Article 31(1) vclt (and its 165 Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351, at ¶373 (11 Sept.). See also Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶41 (3 Feb.); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility [1995] i.c.j. 6, at ¶33 (15 Feb.); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66, at ¶19 (8 July); Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045, at ¶20 (13 Dec.); LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466, at ¶99 (27 June); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] i.c.j. 625, at ¶18 (17 Dec.); Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403, at ¶94 (22 July). 166 See, e.g., Oil Platforms (Iran v. U.S.), Preliminary Objections [1996] i.c.j. 803, at ¶23 (12 Dec.) (referring only to the customary counterpart to the vclt). 167 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.) (concluding that declarations of acceptance of the Court’s jurisdiction under Article 36(3) do not have a retroactive effect). 168 See also Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17, at 17 (abstract) (26 May) (referring to “[r]ules of interpretation of the legal instruments [not solely treaties]”).

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customary counterpart) does not remove the general principle of the natural and ordinary meaning of the words in their context from international law.169 8.5.2.2 General Principle of Effectiveness The general principle of effectiveness (also known, among other names, as ut res magis valeat quam pereat170) is an interpretative general principle with a judicial underpinning.171 It appears in two pcij and nine icj decisions. This general principle is not codified in the vclt. According to this general principle, “instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes”.172 The Court in South West Africa referred to it as the “teleological principle of interpretation”173 and in Territorial Dispute (Libya/Chad) it observed that this is “one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness”.174 The Court in Fisheries Jurisdiction confirmed that “this principle has an important role in the law of treaties and in the jurisprudence of this Court”.175 The pcij defined the general principle of effectiveness as “look[ing] to [measures’] practical effect rather than to the predominant motive that may be conjectured to have inspired it”176 and as “enabling the clauses [of a special agreement …] to have appropriate effects”.177 The icj in Corfu Channel, by relying on the pcij’s jurisprudence, confirmed that clauses of a special agreement should have an effect.178 169 See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber Judgment [1999] Int’l Crim. Trib. for the former Yugoslavia, at ¶287 (15 July). 170 Fellmeth and Horwitz translate ‘ut res magis valeat quam pereat’ as “so that the matter may flourish rather than perish” and note that it provides that “one should avoid reading the instrument in a manner that would render language in the instrument redundant, void, or ineffective”. Fellmeth and Horwitz, above n. 24, at 286. 171 The general principle of effectiveness (also known as the general principle according to which statements must be given their maximum effect in order to ensure the achievement of their underlying purposes, ut res magis valeat quam pereat, and the general principle of appropriate effect) is classified under Digest number 143. 172 South West Africa (Eth. v. S. Afr.; Liber. v. S Afr.), Second Phase [1966] i.c.j. 6, at ¶91 (18 July). 173 Ibid. 174 Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6, at ¶51 (3 Feb.). 175 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶52 (4 Dec.). 176 Competence of the ilo to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] p.c.i.j. (ser.B) No. 13, at 13 (23 July). 177 Free Zones of Upper Savoy and the District of Gex, Order [1929] p.c.i.j. (ser.A) No. 22, at 13 (19 Aug.). 178 Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4, at 24 (9 Apr.).

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The general principle of effectiveness – like the general principle of natural and ordinary meaning – does not apply solely to the interpretation of international agreements. For example, the Court in the 1998 Fisheries Jurisdiction case relied on this general principle in interpreting the effect of a reservation to a unilateral declaration and noted that the principle of effectiveness meant that a reservation must be interpreted by reference to the object and purpose of the declaration [accepting the Court’s jurisdiction …] and in a manner compatible with the effect sought by the reserving State.179 The exact scope of this general principle “is highly controversial”180 and it therefore comes with certain limitations. For example, the Court in Interpretation of Peace Treaties noted that this general principle “cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit”.181 The Court also limited the application of the general principle of effectiveness in Right of Passage over Indian Territory to “effects [that are] in accordance with existing law and not in violation of it”.182 The Court in the 1966 South West Africa case also noted that this general principle can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of ­interpretation, and would have to engage in a process of rectification or revision.183 In its 2011 Application of the cerd Convention decision, the Court referred to the general principle of effectiveness as “the principle that words should be

179 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶¶43, 52 (4 Dec.). See also ibid., at ¶66 (concluding that disregarding the reserving State’s intention would “­deprive the reservation of its effectiveness”). 180 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶91 (18 July). 181 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 221, at 229 (18 July). 182 Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125, at 142 (26 Nov.). 183 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6, at ¶91 (18 July).

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given appropriate effect whenever possible”.184 The Court reasoned that the Parties’ Special Agreement should have at least some effect, the “introduction [of negotiations and the resort to special procedures under cerd] into the text of Article 22 would otherwise be meaningless and no legal consequences would be drawn from them”.185 8.5.2.3

General Principle That a Reservation to a Declaration of Acceptance of the Compulsory Jurisdiction of the Court Is Interpreted in a Natural and Reasonable Way The general principle that a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is interpreted in a natural and reasonable way is an interpretative general principle with a judicial underpinning,186 and was referred to by the icj in four decisions. This general principle assists the Court in interpreting State declarations (and their reservations) in accepting the Court’s jurisdiction, made pursuant to Article 36(2) of the Court’s Statute.187 Besides confirming this general principle in the Land and Maritime Boundary between Cameroon and Nigeria case,188 the Court in Fisheries Jurisdiction described it as the principle of interpretation whereby a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be i­ nterpreted in a natural and reasonable way, with appropriate regard for the intentions of the reserving State and the purpose of the reservation.189 184 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70, at ¶134 (1 Apr.) (emphasis added). 185 Ibid. 186 The general principle that a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is interpreted in a natural and reasonable way, with appropriate regard for the intentions of reserving state and the purpose of the reservation is classified under Digest number 145. 187 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶46 (4 Dec.). See also Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 36(2). ­Article 36(2) of the Court’s Statute provides that “[t]he states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court”. Ibid. 188 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶45 (11 June). 189 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶54 (4 Dec.) (also noting that “[t]he holding of the Court [in the Right of Passage over Indian Territory …] does not detract from this principle”). See also ibid., at ¶¶47–49, 76.

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The Court in Anglo-Iranian Oil Co. observed that “[it] cannot base itself on a purely grammatical interpretation of the text [of the reservation]”.190 Instead, it sought to interpret the reservation “in harmony with a natural and reasonable way of reading the text [of the reservation]”,191 besides considering the intention of the reserving State and the time of the acceptance of the Court’s compulsory jurisdiction.192 The Court in the Fisheries Jurisdiction case also said that that “[e]very declaration ‘must be interpreted as it stands, having regard to the words actually used’ [… and that] [e]very reservation must be given effect ‘as it stands’”.193 Based on these considerations, the Court in Fisheries Jurisdiction concluded that a declaration of acceptance of the Court’s jurisdiction should be read as a whole, meaning that all elements of unilateral declarations “are to be interpreted as a unity, applying the same legal principles of interpretation throughout”,194 and that reservations should not be interpreted restrictively.195 The Court also observed that the vclt can only apply analogously (and not directly) to the “sui generis character of the unilateral acceptance of the Court’s jurisdiction”.196 In the Certain Norwegian Loans case the Court was not able to rely on this general principle because “both Parties to the dispute regarded [the reservation] as constituting an expression of their common will relating to the ­competence of the Court”.197 However, this general principle applies also when “a State may lack confidence as to the compatibility of certain of its actions with international law”.198 190 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 104 (22 July). 191 Ibid. 192 See also Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶49 (4 Dec.) (noting that the intention of the Canadian government – the reserving State – would be established with “Canadian ministerial statements, parliamentary debates, legislative proposals and press communiqués”). 193 Ibid., at ¶47, quoting Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 105 (22 July) and Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9, at 27 (6 July). 194 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶44 (4 Dec.). See also ibid., at ¶¶47, 54. 195 Ibid., at ¶¶44, 45. 196 Ibid., at ¶46. 197 Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9, at 27 (6 July). 198 Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432, at ¶54 (4 Dec.) (noting that this fact “does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations”).

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8.5.3 General Principles of Good Faith and Pacta Sunt Servanda The general principles of good faith and pacta sunt servanda,199 unlike other interpretative general principles, exhibit the characteristics of two types, namely, the interpretative and the substantive types. Good faith and pacta sunt servanda both regulate State conduct and aid the Court in its interpretation of international law; however, their predominate type is interpretative. As the Court stated in Border and Transborder Armed Actions, “[good faith] is not in itself a source of obligation where none would otherwise exist”.200 The Court considered the general principles of good faith and pacta sunt servanda separately until the adoption of Article 26 vclt, when both norms were joined under the same treaty provision. Article 26 vclt provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.201 The Court in the 1974 Nuclear Tests case noted that “the very rule of pacta sunt servanda in the law of treaties is based on good faith”,202 and in 2010, it declared Article 26 vclt to be reflective of customary international law.203 The general principles of good faith and pacta sunt servanda are part of international law despite the Court’s preference for relying on Article 26 vclt in its jurisprudence. However, while Article 26 and its customary counterpart cover only obligations arising from treaties, these two general principles apply to the Court’s consideration of international obligations that do not arise from treaties, namely, those related to negotiations or arising from unilateral declarations and from other international instruments. The text below considers only the general principle of good faith. 199 Fellmeth and Horwitz translate the term ‘pacta sunt servanda’ as “treaties are observed”, meaning that “every treaty in force binds the parties to that treaty to perform their obligations […] until their adherence to the treaty has been lawfully terminated”. Fellmeth and Horwitz, above n. 24, at 212. The general principle of pacta sunt servanda is classified under Digest number 136. 200 Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶94 (10 Dec.). See also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶39 (11 June). 201 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 u.n.t.s. 331, art. 26. Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶145 (4 June) (observing that “the obligation of good faith [is] codified in Article 26 of the 1969 Vienna Convention on the Law of Treaties”). 202 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶46 (20 Dec.). 203 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14, at ¶145 (20 Apr.) (referring to the principle of good faith and “customary international law, as reflected in Article 26 of the 1969 Vienna Convention on the Law of Treaties”).

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8.5.3.1 General Principle of Good Faith The general principle of good faith is predominantly an interpretative general principle with a mixed (international and judicial) underpinning,204 referred to by the Court as providing the basis for other (procedural) general principles.205 The general principle of good faith is one of the most cited general principles, referred to in 28 icj decisions and three pcij decisions. The Court considered the principle of good faith to be a “basic”206 (i.e., fundamental) and a well-established general principle, to be applied “in a reasonable way and in such a manner that its purpose can be realized”.207 The Court noted that this general principle “was mentioned as early as the beginning of this century in the Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case. […] It was moreover upheld in several judgments of the Permanent Court of International Justice [and the International Court of Justice]”.208 The general principle of good faith finds its basis also in international instruments (e.g., in Article 26 vclt, Article vi of the Treaty on the Non-­ Proliferation of Nuclear Weapons, Article 2(2) of the United Nations Charter, General Assembly Resolution 2625 (xxv) and the Final Act of the Helsinki Conference)209 and in customary international law. For example, the Court in Certain Questions of Mutual Assistance in Criminal Matters when noting that France’s “exercise of discretion is still subject to the obligation of good faith”,210 referred to Article 26 vclt. The Court declared Article 26 vclt in its ­subsequent 204 The general principle of good faith is classified under Digest number 135. 205 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶109 (25 Sept.) (noting that “certain procedural principles […] are based on an obligation to act in good faith”); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶130 (12 Oct.) (stating that the “concepts of acquiescence and estoppel [both procedural general principles …] follow from the fundamental principles of good faith and equity”). See also Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶51 (26 Nov.) (considering estoppel in relation to good faith and equity). 206 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶46 (20 Dec.); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶38 (11 June). 207 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶142 (25 Sept.). 208 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶38 (11 June). 209 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226, at ¶102 (8 July); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶38 (11 June). 210 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177, at ¶145 (4 June).

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Pulp Mills on the River Uruguay decision to reflect a customary ­obligation.211 However, despite belonging to several international instruments and being reflective of a norm of customary international law, the requirement of good faith retains its separate existence (also) as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. The Court considered good faith alongside a few other concepts, such as ‘reasonableness’, ‘justice’, ‘equity’ and even ‘co-operation’. For example, in Rights of Nationals of the United States of America in Morocco, the Court stated that “[t]he power of making the valuation rests with the Customs authorities, but it is a power which must be exercised reasonably and in good faith”.212 Similarly, in North Sea Continental Shelf it noted that rules governing the delimitation of adjacent continental shelves are grounded in the “very general precepts of justice and good faith”.213 The Court considered good faith alongside the concept of ‘equity’ in Delimitation of the Maritime Boundary in the Gulf of Maine Area214 and in Military and Paramilitary Activities in and against Nicaragua.215 In Interpretation of the Agreement between the who and Egypt, the Court considered side-by-side the “mutual obligations of co-operation and good faith incumbent upon Egypt and upon the Organization”.216 Good faith, despite its interpretative aspect, also provides an obligation of conduct.217 As the Court noted in Nuclear Tests, the general principle of good faith is “[o]ne of the basic principles governing the creation and performance of legal obligations, whatever their source”.218 For example, the Court 211 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14, at ¶145 (20 Apr.). 212 Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176, at 212 (27 Aug.) (emphasis added). See also Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] i.c.j. 57, at 63 (28 May) (noting that “Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article”; emphasis added). 213 North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3, at ¶85 (20 Feb.) (emphasis added). 214 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246, at ¶130 (12 Oct.) (noting that “the concepts of acquiescence and estoppel […] both follow from the fundamental principles of good faith and equity”). 215 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶51 (26 Nov.). 216 Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶43 (20 Dec.). 217 Ibid., at ¶47 (noting that the International Law Commission’s draft articles on treaties between States and international organizations or between international organizations “are based on an obligation to act in good faith”). 218 Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253, at ¶46 (20 Dec.).

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c­ onsidered that States are under an obligation to seek a settlement in good faith in accordance with the United Nations Charter,219 whether they are willing “to discuss in good faith actual and potential environmental risk”220 or ready to accept a third Party’s assistance, which “would be evidence of the good faith with which they conduct bilateral negotiations in order to give effect to the Judgment of the Court”.221 The Court also considered that “each party must fulfil in good faith the obligation which all States have to respect the territorial integrity of all other States”222 and whether “the Parties considered in good faith a certain possibility of a negotiated settlement to exist or not to exist”.223 When considering cases of significant transboundary harm, the Court also invoked the States’ obligation “to notify and consult in good faith with the potentially affected State [i.e., State risking significant transboundary harm]”.224 At least once the Court even required the Parties to produce “substantive evidence to demonstrate that they considered in good faith that their dispute could or could not be settled by direct negotiations through the usual diplomatic channels”.225 The Court “emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms”.226 The general principle of good faith “relate[s] only to the fulfilment of existing obligations”,227 and “obliges the Parties to apply [them] in a reasonable way and in such a

219 Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] i.c.j. 12, at ¶52 (21 June) (noting that States are “under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 2, of the Charter”). 220 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶112 (25 Sept.). 221 Ibid., at ¶143. 222 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281, at ¶105 (11 Nov.). 223 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 3, at ¶99 (17 Mar.) (emphasis added). 224 Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665, at ¶104 (16 Dec.) (emphasis added). See also Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Judgment [2015] i.c.j. 665, at ¶104 (16 Dec.). 225 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 3, at ¶93 (17 Mar.). 226 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶60 (26 Nov.). 227 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶59 (11 June).

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­ anner that its purpose can be realized”.228 For example, the Court in the m South West Africa advisory opinion noted that “member States have undertaken to fulfil in good faith [relevant obligations emanating from the United ­Nations Charter] in all their international relations”.229 Similarly, in the Wall advisory opinion, the Court applied the general principle of good faith to States’ implementation of United Nations Security Council Resolutions.230 In Avena and Other Mexican Nationals, the Court observed that it is noteworthy that the United States has been making good faith efforts to implement the obligations incumbent upon it under Article 36, paragraph 1, of the Vienna Convention [on Consular Relations], through such measures as a new outreach programme launched in 1998.231 However, good faith is not just linked to the performance of treaty obligations. The Court considered good faith also in relation to States’ compliance with its decisions.232 As the Court stated in Reinterpretation of Temple of Preah Vihear, the parties to a case before the Court have an obligation to implement the judgment of the Court in good faith. It is of the essence of that obligation that it does not permit either party to impose a unilateral solution.233 The Court sometimes applied the general principle of good faith to States’ domestic regulations. For example, in Right of Passage over Indian Territory, the 228 Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7, at ¶142 (25 Sept.). 229 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16, at ¶90 (21 June). See also Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73, at ¶50 (20 Dec.) (noting that States are “to fulfil in good faith the mutual obligations which the Court has set out”). 230 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136, at ¶162 (9 July) (referring to resolutions 242 (1967) and 338 (1973) in particular). 231 Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12, at ¶149 (31 Mar.). 232 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412, at ¶58 (18 Nov.) (noting that the State is “to comply in good faith with the decisions of the Court”). 233 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281, at ¶99 (11 Nov.).

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Court noted that the (domestic) regulation of India over the passage “must be exercised in good faith”,234 meaning that India would “not […] prevent the transit necessary for the exercise of Portuguese sovereignty over the enclaves”.235 Good faith is presumed. As the Court said in Questions relating to the Seizure and Detention of Certain Documents and Data, “[o]nce a State has made such a commitment concerning its conduct, its good faith in complying with that commitment is to be presumed”.236 As the Court said in Dispute regarding Navigational and Related Rights, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed.237 Pursuant to this finding, the Court in Construction of a Road in Costa Rica reasoned that “assurances and guarantees of non-repetition [of the internationally wrongful act] will be ordered only ‘in special circumstances’”.238 State conduct is presumably in accordance with the general principle of good faith until bad faith has been proven.239 However, the absence of good faith does not necessarily imply bad faith.240 For example, the pcij in its ­Certain German Interests in Polish Upper Silesia (Merits) case noted that Germany by alienating certain property promised under the Treaty of Versailles that had not yet entered into force, did not violate the general principle of good faith, because the treaty did not “impose on Germany such obligation to

234 Right of Passage over Indian Territory (Port. v. India), Merits [1960] i.c.j. 6, at 28 (12 Apr.). 235 Ibid. 236 Questions relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v. Austl.), Order [2014] i.c.j. 147, at ¶44 (3 Mar.). 237 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213, at ¶150 (13 July). See also Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99, at ¶138 (3 Feb.). 238 Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665, at ¶141 (16 Dec.). 239 Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644, at ¶132 (5 Dec.) (defining “bad faith” as “a circumstance which would justify either Party in claiming to be discharged from performance”). 240 See, e.g., Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7, at 38–39 (25 May) (noting that Germany ceding territory that was subject to a treaty which had not yet entered into force “cannot suffice to justify the view that the alienation was contrary to the obligations arising under the Treaty of Versailles and that it was even null and void or contrary to the principles of good faith”).

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refrain from alienation”.241 The Court concluded that Germany’s transaction was made in good faith.242 8.6 ‘Other Rules’ The icj began increasingly to resort to ‘other rules’ in the 1960s, if not earlier. These ‘other rules’ – mainly procedural and interpretative – are part of the Court’s settled jurisprudence from which it departs only when cogent reasons so require. One example of a procedural ‘other rule’ identified in the icj’s jurisprudence is the rule that the critical date for determining the admissibility of the application is the date on which it is filed. The Court first identified this rule in 1988, without referring to it as to a ‘principle’ or attributing it to the other two traditional sources of international law. Instead, it merely said that “[t]he critical date for determining the admissibility of an application is the date on which it is filed”.243 The Court referred to the same ‘other rule’ in six decisions (without attributing it to any of the three sources) and confirmed in the Arrest Warrant case that this ‘other rule’ is part of its “settled jurisprudence”.244 Another example of a procedural ‘other rule’ is that the freedom to present additional facts and legal considerations not included in the application is subject to the limitation that the dispute must not be transformed. This rule was already ascertained by the pcij in the 1939 Société Commerciale de B ­ elgique case, and referred to by the icj in the 1984 Military and Paramilitary Activities, 1998 Land and Maritime Boundary between Cameroon and Nigeria and the 1999 Reinterpretation of Land and Maritime Boundary cases. In none of these decisions did the Court attribute this rule to the category of general principles, treaties (including its Statute) or customary international law.245 The Court did 241 Ibid., at 39. 242 Ibid., at 42; Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9, at 15 (holding) (26 July); Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] p.c.i.j. (ser.A) No. 13, at 17 (16 Dec.). 243 Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69, at ¶66 (10 Dec.). 244 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3, at ¶40 (14 Feb.). See also Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] i.c.j. 115, at ¶43 (27 Feb.). 245 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392, at ¶80 (26 Nov.); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections

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note, however, that the application of this ‘other rule’ “ultimately has to be decided by the Court in each individual case in which the question arises”.246 8.7

Concluding Observations

Regardless of whether or not the Court is substituting general principles with the ‘other rules’ of international law, general principles still feature prominently in its jurisprudence. In its 70-year history, the icj relied on general principles on average in 93.6 per cent of all of its decisions and in 85.3 per cent of its decisions handed down in between 2008 and 2018. In comparison, the pcij relied on general principles in 64.4 per cent of its decisions. However, the icj ascertained relatively fewer general principles than the pcij did. For example, while the pcij ascertained on average 3.6 general principles in each year of its operation (64 general principles ascertained between 1922 and 1940), the icj ascertained on average only 1.8 general principles in each year of its operation (130 general principles ascertained between 1948 and 2018). The icj considered relatively more general principles (as compared to the pcij’s jurisprudence) in the field of the law of treaties, diplomatic and consular law, State sovereignty and responsibility, international maritime law and international humanitarian law. The icj also considered relatively more procedural rules relating to its jurisdiction, the procedure before the Court and evidentiary questions. Interestingly, the pcij – with its much shorter life-span – ­ascertained more procedural general principles (as compared to the icj) on questions of the Parties’ standing, and more interpretative general principles specific to treaty interpretation and the delineation between international and domestic law. The pcij and the icj share the same number of general ­principles in the field of State succession and economic relations, and in relation to the interpretation of ­international instruments (beyond treaty interpretation) and customary international law.

[1998] i.c.j. 275, at ¶99 (11 June); Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31, at ¶15 (25 Mar.) (referring to this ‘other rule’ as a principle in the abstract to the decision, but not also in its text). 246 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31, at ¶15 (25 Mar.).

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Since the dissolution of the pcij, the international community has seen an expansion of its membership,247 which in turn “increased the possibilities of legal disputes capable of being submitted to the Court”.248 However, general principles – despite the absence of a scholarly agreement as to their definition and role – remain a relevant source of international law that is relied upon by the Court in solving inter-State disputes and interpreting international law. 247 See, e.g., Website of the International Court of Justice (last visited on 20 May 2019; noting that “membership of the United Nations has grown from 51 in 1945 to 193 [States] in 2018”). 248 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275, at ¶35 (11 June).

Chapter 9

Case Study: The Evolution of the General Principle of Diplomatic Protection through the Court’s Jurisprudence (1924–2012) 9.1 Introduction This chapter discusses the general principle of diplomatic protection as it evolved from the first decision in which the Court relied upon it – the 1924 Mavrommatis Palestine Concessions decision of the Permanent Court of International Justice (pcij) – to the 2012 Ahmadou Sadio Diallo decision of the ­International Court of Justice (icj). After providing a general overview of the Court’s reliance on the general principle of diplomatic protection, the chapter proceeds to discuss the evolution of diplomatic protection’s elements, namely, from requirements of the bond of nationality and prior exhaustion of domestic remedies, to its application to companies and international organisations, and concludes with a simple formula. The case study centres around the general principle of diplomatic protection for several reasons. Firstly, both the pcij and icj have invoked it in a ­number of their decisions, which points to the continuity between both jurisprudences. The repeated reliance on diplomatic protection in the Court’s jurisprudence also allowed for a more detailed study of the content of this p ­ articular general principle. Secondly, the general principle of diplomatic protection demonstrates how a few general principles may form a ‘cluster’ (­diplomatic protection is applied together with two additional general principles, namely, the general principle of the bond of nationality and that of the exhaustion of domestic remedies). Thirdly, the analysis of this general principle confirms that despite its inconsistent usage of the term ‘principle’, the Court was relying on the same general principle over the course of its jurisprudence. Fourthly, the evolution of the various elements of the general principle of diplomatic protection demonstrates the ability of the Court to develop and mould international law and its capacity to adapt a particular general principle to the changing needs of international society, largely by relying on its own judicial discretion. And lastly, considering the general principle of diplomatic ­protection – and not its customary counterpart – challenges a scholarly conception that diplomatic protection is (s0lely) a norm of customary international law, when it originated (and remains) a general principle.

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Diplomatic protection is a procedural general principle that confers on States the right of standing before the Court when an internationally wrongful act by another State affected their nationals.1 From being “originally limited to the alleged violations of the minimum standard of treatment of aliens”,2 “the scope ratione materiae of diplomatic protection […] has subsequently widened to include, inter alia, internationally guaranteed human rights”.3 The Court considered diplomatic protection (and its two aiding general principles) in 13 decisions (four pcij and nine icj decisions) delivered between 1924 and 2012. However, only once did the Court refer to it as a ‘principle’, in 1924.4 The Court in 1939 referred to it as “the rule of international law”5 and used the term ‘diplomatic protection’ to describe this general principle – a name that is in use to this day. The general principle of diplomatic protection has a judicial underpinning; neither the Court’s Statute nor its Rules of Procedure provide for such possibility. Although some arbitral proceedings pre-dating the establishment of the pcij might have referred to diplomatic protection, the text of the Court’s decisions does not refer to such awards. The Court did not rely on any external basis or evidence in ascertaining this general principle, although it did on a few occasions refer to them. For example, in the 1924 Mavrommatis Palestine Concessions case the Court referred to Article 26 of the Mandate after ascertaining diplomatic protection. However, the Court referred to Article 26 only to confirm that it had jurisdiction because Greece was a member of the League of Nations and not by way of basing the existence of the general principle on that provision. The Mandate agreement did not provide for the right of members to espouse their subjects’ claims ­before the Court.6 1 The general principle of diplomatic protection is classified under Digest number 122. See also Chapter 7, at 258–260. 2 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶39 (24 May). 3 Ibid. (noting that this was due “to the substantive development of international law over recent decades in respect of the rights it accords to individuals”). 4 But see Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 17 (12 July). The Court chose to rely on “principles [in plural] which the Court, in previous judgments, has laid down with regard to the conditions under which a State may bring before it cases relating to the private rights of its nationals” instead relying on a principle of diplomatic protection, without providing an explanation. Ibid. (emphasis added). 5 Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 16 (28 Feb.). 6 Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 12 (30 Aug.) (noting that Article 26 of the Mandate gave jurisdiction to the Court and provided “that the dispute must be between the Mandatory and another Member of the League of Nations”).

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In the 1929 Serbian Loans case, the Court referred again to international instruments that could have been considered as possible bases for the general principle of diplomatic protection, namely, Article 34 of its Statute and ­Article 14 of the Covenant of the League of Nations. While Article 34 of the pcij Statute provided that “[o]nly States or Members of the League of Nations can be parties in cases before the Court”,7 the relevant section of Article 14 of the Covenant of the League of Nations stated that “[t]he Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it”.8 These two provisions, although establishing that only States (and not individuals) may be Parties before the Court, did not also outline the possibility of a State espousing a claim on behalf of its subjects, as the general principle of diplomatic protection allows.9 9.2

Evolution of the Elements of Diplomatic Protection

The section below considers the elements of diplomatic protection, namely, its initial formulation as provided in the Court’s 1924 Mavrommatis reasoning and its subsequent amendments, the requirements of the bond of nationality and the exhaustion of domestic remedies (both also general principles in their own right), its application to juridical persons and its role in ­ questions of reparation. 9.2.1 Initial Formulation The Court ascertained the general principle of diplomatic protection for the first time in its 1924 Mavrommatis Palestine Concessions case. The Court stated that [i]t is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law

7 Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 34. 8 Covenant of the League of Nations, 28 Apr. 1919, art. 14. 9 See also Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 17 (12 July) (noting that “if the dispute referred to the Court by the Special Agreement between France and the Serb-CroatSlovene State were to be regarded as a dispute between the Government of the Serb-CroatSlovene Kingdom and certain bondholders of the loans, one of the essential conditions of procedure before the Court, namely, the legal capacity of the Parties, would be unfulfilled”).

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committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.10 The Court in its initial formulation of diplomatic protection noted that States are entitled to bring a case to the Court for their subjects under two conditions, namely, that their subjects were injured by internationally wrongful acts by another State and that they were unable to obtain any redress from the breaching State. In Mavrommatis Palestine Concessions, this general principle allowed Greece to continue its proceedings before the Court against the United Kingdom for treating Mr. Mavrommatis (a Greek subject) “in a manner incompatible with certain international obligations which they were bound to observe”.11 The Court in the same decision further clarified this general principle by stating that a State, [b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf […] is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.12 The Court considered diplomatic protection also in the 1929 Serbian Loans case. The Court substituted the reference to ‘its subjects’ with that of ‘its nationals’.13 However, the Court was unable to apply this general principle in the Serbian Loans case ­because the dispute was not between the French bondholders and the Kingdom of the Serbs, Croats and Slovenes, but – as the Special Agreement submitted to the Court outlined – between France and the Kingdom. France and the Kingdom of the Serbs, Croats and Slovenes disagreed on how the Kingdom had treated the French nationals and, therefore, the

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Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 12 (30 Aug.). The International Law Commission (ilc) also refers to Mavrommatis Palestine Concessions in its commentary to article 1 of the Draft articles on diplomatic protection. See, e.g., Int’l L. Comm’n, Draft articles on Diplomatic Protection with Commentaries, Rep. of the Int’l L. Comm’n (2006), reprinted in (2006) 2 Y. Int’l L. Comm’n, U.N.Doc. A/61/10, at 25. Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2, at 12 (30 Aug.). Ibid. The ilc also refers to Mavrommatis Palestine Concessions in its commentary to article 1 of the Draft articles on diplomatic protection. See, e.g., Int’l L. Comm’n, Draft articles on Diplomatic Protection with Commentaries, Rep. of the Int’l L. Comm’n (2006), reprinted in (2006) 2 Y. Int’l L. Comm’n, U.N.Doc. A/61/10, at 25. Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 16 (12 July) (emphasis added).

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claim did not concern allegations of a breach that affected the French bondholders.14 The Court continued to expand on the requirement of nationality in its Panevezys-Saldutiskis Railway and Nottebohm decisions. By restricting the application of the general principle of diplomatic protection only to the States’ own nationals, the Court gave rise to a general principle that aids the general principle of diplomatic protection, namely, the general principle of the bond of nationality. 9.2.2 General Principle of the Bond of Nationality The general principle of the bond of nationality is a procedural general principle with a mixed (international and judicial) underpinning,15 mentioned in one pcij and two icj decisions. The Court in its 1939 Panevezys-Saldutiskis Railway decision clarified that diplomatic protection applies only when a State espouses the claim of its own – but not also foreign – nationals. According to the Court, this general principle provides that it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged.16 The Court added that “[w]here the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection”.17 The Court again considered the requirement of the bond of nationality in relation to diplomatic protection in its 1955 Nottebohm case. There, the Court 14

Ibid., at 17–18. Similarly, the Court in the 2005 Armed Activities on the Territory of the Congo case found that there was no question of diplomatic protection because “Uganda [wa]s not exercising diplomatic protection on behalf of the victims but vindicating its own rights under [Article 29 of] the Vienna Convention [on Diplomatic Relations]”. Therefore, Uganda did not have to espouse its nationals’ claims to establish that it had standing before the Court. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168, at ¶330 (19 Dec.). Article 29 vcdr requires the host State to protect the physical integrity and inviolability of diplomatic agents of the sending State. Vienna Convention on Diplomatic Relations, 18 Apr. 1961, 500 u.n.t.s. 95, art. 29. 15 The general principle of the bond of nationality is classified under Digest number 124. 16 Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 16 (28 Feb.). 17 Ibid.

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clarified that nationality, as determined in international law, does not necessarily correspond to the nationality conferred to the individual by a particular State’s domestic law.18 It noted that [a]ccording to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.19 Besides referring to the Mavrommatis Palestine Concessions and PanevezysSaldutiskis Railway decisions,20 the Court noted that arbitrators have given their preference to real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved.21 Accordingly, in determining Mr. Nottebohm’s nationality, the Court considered his habitual residence, the centre of his interests, his family ties, his participation in public life and the attachment to a particular State by his children.22 The Court’s findings resulted in determining that Mr. Nottebohm had stronger connections with Guatemala than with Liechtenstein. Although Mr. Nottebohm was a Liechtenstein national pursuant to Liechtenstein’s domestic law, the Court determined that Liechtenstein was not entitled to exercise diplomatic protection vis-à-vis Guatemala and rejected Liechtenstein’s claim as inadmissible.23 The Court in its 1970 Barcelona Traction case outlined the content of the general principle of the bond of nationality as it is applied to companies. It noted that “in the particular field of the diplomatic protection of corporate 18

Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4, at 20–21, 23 (6 Apr.) (noting that “international law leaves it to each State to lay down the rules governing the grant of its own nationality. [… However,] a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States”). 19 Ibid., at 23. 20 Ibid., at 13, 24. 21 Ibid., at 22. 22 Ibid. 23 Ibid., at 26 (holding).

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entities, no absolute test of the ‘genuine connection’ has found general acceptance”.24 The Court determined that Barcelona Traction, Light and Power Company, Ltd., due to its multiple links to Canada (i.e., its incorporation and a registered office in Canada) had a Canadian nationality.25 .

9.2.3 General Principle of the Exhaustion of Domestic Remedies The general principle of the exhaustion of domestic remedies is a procedural one with a judicial underpinning,26 mentioned in two pcij and eight icj decisions. Unlike the general principle of the bond of nationality, the requirement of the exhaustion of domestic remedies emerged as a general principle unrelated to the question of diplomatic protection and was associated with the general principle of diplomatic protection later in the Court’s jurisprudence. The Court first ascertained this general principle in the Prince von Pless Administration order by noting that “the Court [did] not consider it necessary to pass upon the question of the applicability of the principle as to the exhaustion of internal means of redress in the present Order”.27 In its later PanevezysSaldutiskis Railway decision, the Court explained that domestic remedies do not have to be exhausted if they are also not effective. It stated that [t]here can be no need to resort to the municipal courts if those courts have no jurisdiction to afford relief; nor is it necessary again to resort to those courts if the result must be a repetition of a decision already given.28 In Panevezys-Saldutiskis Railway, the Court rejected Estonia’s claim and did not consider the case further because Estonia omitted to put forward any argument against Lithuania’s objection concerning the non-exhaustion of domestic remedies.29 Estonia’s omission demonstrates that in 1939, States did not 24 25 26 27 28 29

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶70 (5 Feb.). Ibid., at ¶¶71–72 (5 Feb.) (noting that “Barcelona Traction’s links with Canada are thus manifold”). The general principle of the exhaustion of domestic remedies is classified under Digest number 123. See also Chapter 7, at 260–261. Prince von Pless Administration, Order [1933] p.c.i.j. (ser.A/B) No. 52, at 16 (4 Feb.). Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76, at 18 (28 Feb.). Ibid., at 7, 16, 22 (noting that Estonia “has endeavoured to discredit this rule of international law [i.e., diplomatic protection], if not to deny its existence” and holding that “the objection regarding the non-exhaustion of the remedies afforded by municipal law [a]s well founded”).

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consider the prior exhaustion of domestic remedies to be a requirement for invoking diplomatic protection. The Court in the 1959 Interhandel case referred to the general principle of the exhaustion of domestic remedies as “a well-established rule of customary international law”.30 Besides noting that this (aiding) general principle is generally applied in instances of diplomatic protection, the Court additionally observed that [b]efore resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system. A fortiori the rule must be observed when domestic proceedings are pending.31 The question of the exhaustion of domestic remedies in relation to diplomatic protection was considered again in the 2004 Avena and Other Mexican Nationals decision. In this case, however, the Court determined that in instances where both the nationals’ and the State’s rights were violated, the requirement of the exhaustion of domestic remedies did not apply. The Court said that [i]n these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1(b) [of the Vienna Convention on Consular Relations].32 The Court further clarified this general principle in the elsi33 and LaGrand34 decisions, among others; however, in these cases the Court did not consider 30 Interhandel (Switz. v. U.S.), Preliminary Objections [1959] i.c.j. 6, at 27 (21 Mar.). 31 Ibid. 32 Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12, at ¶40 (31 Mar.). 33 The Court in elsi clarified that the requirements of the exhaustion of domestic remedies on the international level and in domestic law differ – for the former requirement to be satisfied “it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success”. Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15, at ¶59 (20 July). 34 In LaGrand, the Court precluded the United States from relying on the requirement of the exhaustion of domestic remedies as a way of precluding “the admissibility of Germany’s first submission, [because] it was the United States itself which had failed to carry our

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the general principle of the exhaustion of domestic remedies as a requirement to the general principle of diplomatic protection. 9.2.4 Diplomatic Protection and Companies The Court began applying the general principles of diplomatic protection to States’ claims on behalf of their companies (as opposed to natural persons) in the 1952 Anglo-Iranian Oil Co. case, when it allowed the United Kingdom to espouse the claim of its company, the Anglo-Iranian Oil Company, Ltd., against Iran.35 The Court confirmed that diplomatic protection allows a State to act against another State for injury caused to its company also in its 1970 Barcelona Traction case. In this case, the Court clarified that diplomatic protection applies to States whose companies are their nationals, but not also to States whose companies’ shareholders are its nationals.36 In this case, Belgian shareholders suffered loss done to a Canadian company (Barcelona Traction, Ltd.) due to an alleged internationally wrongful act done by Spain. Because diplomatic protection does not extend to the companies’ shareholders, Belgium – a State whose nationals suffered loss as the shareholders of Barcelona Traction, Ltd. – was precluded from continuing the international proceedings against Spain before the Court.37 The Court took up the question of diplomatic protection in relation to companies also in its 2007 Ahmadou Sadio Diallo case, where it confirmed that “only the State of nationality may exercise diplomatic protection on behalf of the company when its rights are injured by a wrongful act of another State”,38 as the Court already noted in the Anglo-Iranian Oil Co. and Barcelona Traction cases. The Court added that “[i]n determining whether a company possesses independent and distinct legal personality, international law looks to the rules of the relevant domestic law”.39 In the same 2007 decision, the Court considered the possibility of diplomatic protection ‘by substitution’, which would allow the “protection of the [sic] its obligation under the Convention to inform the LaGrand brothers”. LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466, at ¶60 (27 June). 35 Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93, at 102, 112 (22 July). 36 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶¶52–53, 81 (5 Feb.). 37 Ibid., at ¶103 (holding). 38 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶61 (24 May). 39 Ibid.

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shareholders by their own national State”.40 The Court defined protection ‘by substitution’ as [seeking] to offer protection to the foreign shareholders of a company who could not rely on the benefit of an international treaty and to whom no other remedy is available, the allegedly unlawful acts having been committed against the company by the State of its [i.e., company’s] nationality.41 However, in 2007 diplomatic protection did not yet encompass protection by substitution.42 The Court said that [s]ince its dictum in the Barcelona Traction case […] the Court has not had occasion to rule on whether, in international law, there is indeed an exception to the general rule ‘that the right of diplomatic protection of a company belongs to its national State’ […] which allows for protection of the shareholders by their own national State ‘by substitution’.43 The Court found that at the time of the handing down of its decision, there was no “exception in customary international law allowing for protection by substitution, such as is relied on by Guinea”.44 Protection by substitution would, however, be allowed as a means of last resort, when the company was harmed by the State of its nationality (and when no treaty régime covering the situation was in place).45 In Ahmadou Sadio Diallo case, Guinea did not gain standing ‘by substitution’ that would allow it to intervene for breaches done to Diallo’s companies because the companies held the nationality of the violating State (the drc).46 40 41 42

43 44 45 46

Ibid., at ¶87. Ibid., at ¶88 (emphasis added). Ibid., at ¶¶87, 89. In the 2007 Ahmadou Sadio Diallo case, the Court noted that art. 1 of the ilc Draft articles on Diplomatic protection is reflective of customary international law, but did not state the same for article 11(b), which provides for diplomatic protection by substitution. Ibid., at ¶¶39, 91–92 (noting that “the question of whether or not this paragraph [b] of Article 11 reflects customary international law does not arise in this case”). Ibid., at ¶87. Ibid., at ¶89. Ibid., at ¶88. Guinea was, however, able to intervene before the Court – pursuant to the general principle of diplomatic protection – for the injury done to Diallo as a natural person and the employee of its companies. Ibid., at ¶98 (holding).

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9.2.5 Diplomatic Protection and Questions of Reparation The Court considered the general principle of diplomatic protection in relation to reparation in its 1928 Factory at Chorzów, 1949 Reparation for Injuries and 2012 Ahmadou Sadio Diallo decisions. In the 1928 Factory at Chorzów decision, the Court clarified that the State that espoused its national’s claim is claiming its own (i.e., State’s) right to reparation (in this case Germany’s right to reparation), because the Court may consider only inter-State disputes, although it was the injury done to the individual that gave rise to the claim. The Court nevertheless calculated the reparation in relation to the damage suffered by the individual and noted that [t]he damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.47 The Court in the 2012 Ahmadou Sadio Diallo case, however, implied that reparation should be given to Mr. Diallo, although it had determined that the State claiming diplomatic protection was actually claiming its own right to reparation. The Court in Ahmadou Sadio Diallo reminded “that the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury”.48 The Court considered reparation also in relation to an international organisation’s claim instituted for an injury done to its agents. In the 1949 Reparation for Injuries Suffered in the Service of the United Nations case, the Court con­ sidered whether the United Nations (and not a particular State) could claim ­reparation for the injury suffered by one of its civil servants against another State. The Court applied a modality of the general principle of diplomatic protection, namely, functional protection. As with diplomatic protection, functional protection ensures that the international organisation “is asserting its own right”49 and obtains the reparation on its own behalf and not on behalf of an individual.50

47 48 49 50

Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17, at 28 (13 Sept.). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324, at ¶57 (19 June). Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174, at 184 (11 Apr.). Ibid., at 188 (holding; noting that “respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent’s national State may possess, and thus bring about a reconciliation between their claims”).

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Diplomatic Protection and International Organisations (i.e., Functional Protection) In the first decision in which the icj considered the question of diplomatic protection, i.e., the 1949 Reparation for Injuries Suffered in the Service of the United Nations advisory opinion, the Court analogised the general principle of diplomatic protection to a situation where an international organisation – and not a State – is claiming a right of standing for an injury done to one of its civil servants. The Court referred to the modified version of diplomatic protection that could apply to an international organisation as “functional protection”.51 While diplomatic protection allows a State to claim compensation for the injuries caused to its nationals, functional protection enables the international organisation to claim reparation for the injury suffered by its agents. In comparing the general principle of diplomatic and functional protection, the ­former considers the nationality of the individual, while the latter instead of considering individuals’ (State) nationality takes into account the status of the agents vis-à-vis the international organisation.52 The rationale behind the adoption of the modified version of diplomatic protection applicable to an international organisation stemmed from the Court’s concerns regarding any potential States’ influence over their nationals who were also agents of the international organisation. By empowering the international organisation to claim reparation on behalf of its staff, the Court effectively removed any potential State claims on behalf of the agents for injuries suffered as employees of international organisations. Indicative of this reasoning is the Court’s ascertainment of an ‘aiding’ “principle applied by Article 100 of the Charter”,53 namely, the general principle of independence of international civil servants.54 Embodied (also) in the United Nations Charter, this general principle ensures the independence of the United Nations agents by prohibiting them from seeking or receiving instructions from any State and, thus, preventing States from interfering with the agents discharging their responsibilities.55 9.2.6

51 52 53 54 55

Ibid., at 184, 185. Ibid., at 185–186. Ibid., at 183. General principle of independence of international civil servants is classified under the Digest number 11. It is a substantive general principle with an international underpinning. Charter of the United Nations, 26 June 1945, art. 100.

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Concluding Observations

The evolution of the general principle of diplomatic protection through the Court’s jurisprudence demonstrates that the Court-ascertained general principles are not static and they continually evolve, together with the remaining rules and principles of international law,56 case-by-case. By identifying the general principle of diplomatic protection, the Court in Mavrommatis Palestine Concessions also attracted to its jurisprudence “cases relating to the private rights of [States’] nationals”57 – a subject-matter that is otherwise not accessible to a Court whose function is to decide on inter-State matters – and widened the spectrum of disputes that would later come before it. Ever since it was first outlined in the Mavrommatis Palestine Concessions case, the Court has refined and clarified the various elements of diplomatic protection, i.e., the requirements of the bond of nationality and exhaustion of domestic remedies, its role in questions of reparation, and its application to companies and international organisations. A simple ‘formula’ that visually presents the elements of diplomatic protection (save for its variation as ‘functional protection’) is as follows: Diplomatic protection natural æ ö protection of persons ÷ juridical = çç ÷ ç - shareholders of the juridical persons ÷ è ø æ ö ç effective nationality ÷ + Bond of Nationality ç ÷ çç place of incorporation ÷÷ business ø è + Prior Exhaustion of ( effective & available ) Domestic Remedies Figure 9.1 Formula of diplomatic protection

The formula describes the general principle of diplomatic protection as a norm that applies to the States’ protection of both individuals (natural persons) and 56

57

See, e.g., Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3, at ¶37 (5 Feb.) (noting that “[i]n seeking to determine the law applicable to this case, the Court has to bear in mind the continuous evolution of international law”). Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20, at 16 (12 July).

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companies (juridical persons), but does not apply to States ­espousing claims of the companies’ shareholders. There are two additional requirements in establishing the States’ rights of diplomatic protection, namely, the general principles of the bond of nationality and the exhaustion of domestic remedies. The bond of nationality, at least as determined on the international level, is the ­effective nationality of individuals and the place of incorporation and (or) ­operation or business of companies. The element of the exhaustion of domestic remedies requires that the domestic remedies are effective and available to the individuals and companies whose claims their (national) State later espouses. The Court’s reliance on the general principle of diplomatic protection demonstrates its ability to develop international law with the help of general principles that are based neither in domestic law nor international instruments; and vice versa, the general principle’s ability to adapt to the evolving international reality. There is no indication that the Court considered State practice and their opinio juris in ascertaining the general principle of diplomatic protection. In fact, the Court explicitly limited States’ participation in developing these ‘general rules’ of diplomatic protection because [d]iplomatic protection deals with a very sensitive area of international relations, since the interest of a foreign State in the protection of its nationals confronts the rights of the territorial sovereign, a fact of which the general law on the subject has had to take cognizance in order to prevent abuses and friction.58 Although in 2005 the Court stated that it considered the general principle of diplomatic protection to belong to general international law,59 the Court did not openly consider this general principle as reflective of a norm of customary international law, at least not until 2007, when the Court declared Article 1 of the International Law Commission’s Draft articles on Diplomatic Protection – a provision that corresponds to the general principle of diplomatic 58 Ibid. 59 The Court stated that for Uganda to invoke its right to diplomatic protection “[it] would need to meet the conditions necessary for the exercise of diplomatic protection as recognized in general international law, namely the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies”. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168, at ¶333 (19 Dec.).

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protection – to be reflective of customary international law.60 However, despite its (newer) existence also in customary international law, diplomatic protection retains its status as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. 60

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582, at ¶39 (24 May). See also Int’l L. Comm’n, Draft articles on Diplomatic Protection with Commentaries, Rep. of the Int’l L. Comm’n (2006), reprinted in (2006) 2 Y. Int’l L. Comm’n, U.N. Doc. A/61/10, at 25 (art. 1).

Conclusion [T]he edifice of law [was] carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and wellbeing of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected.1 Almost a century after the adoption of the Court’s Statute, scholars seem to agree to disagree on the nature and content of Article 38(1)(c). There is no consensus on the definition, method of ascertainment and role of general principles.2 Some even deprive general principles of their status as a source of international law.3 Those who acknowledge general principles as a source of international law consider them to be “of a lesser importance”4 when compared to treaties and customary international law and wonder “how such a source of law [general principles] actually operates”.5 Despite the doctrinal uncertainty, general principles are ‘alive and well’ at least as far as the Court’s 1 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3, at ¶92 (24 May). 2 Cf. Redgwell, ‘General Principles of International Law’, in Vogenauer and Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford: Hart Publishing, 2017), at 5 (noting that “it is only a slight exaggeration to state that there is agreement on little else” than on the fact that general principles are a source of international law); Pellet, ‘Article 38’, in Zimmerman, Oellers-Frahm, Tomuschat and Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012), at 766 (noting that “international lawyers have never reached agreement on the definition of the general principles mentioned in Art. 38”); Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 Mich. J. Int’l L. 768 (1990), at 771–772. 3 Parry, The Sources and Evidences of International Law (Manchester: Manchester University Press, 1965), at 88, 91 (considering general principles to be a ‘method’ rather than a source of international law); Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013) (referring to Koskeniemmi). 4 Malgosia Fitzmaurice, ‘Customary Law, General Principles, Unilateral Acts’, in Sobenes ­Obregon and Samson (eds), Nicaragua Before the International Court of Justice: Impacts on International Law (Cham: Springer, 2018), at 260. See also Berry, Caribbean Integration Law (Oxford: Oxford University Press, 2014), at 174 (noting that “there is a disagreement amongst international lawyers about whether general principles are subsidiary to custom and treaties”). 5 D’Aspremont, ‘What was not meant to be: General Principles of Law as a Source of International Law’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018), at 176.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_012

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jurisprudence is concerned. Between 1922 and 2018 the Court ascertained 156 general principles in 171 of its decisions, as evidenced in the Digest. This book may help in dispelling certain misconceptions surrounding general principles. For example – and contrary to the overwhelming agreement among scholars that general principles derive from domestic legal systems6 (mostly due to the expression “recognized by civilized nations”7) – the Court referred to domestic laws in very few decisions, and only once when ascer­ taining a general principle. The Court’s jurisprudence could have referred to domestic laws in ascertaining general principles, as other international tribunals sometimes do, but it chose not to. By omitting to include any reference to domestic law in the text of its decisions, the Court did not attach domestic underpinning to general principles (and other norms) it considered, although they may well have been derived from domestic law. The Court’s reliance on domestic law is not a precondition to ascertaining general principles. Although some acknowledge that general principles may indeed be identified in already-existent international instruments or other sources of international law,8 the possibility of a judicial underpinning of general principles seems not yet to have caught scholarly attention. The research findings demonstrate that the majority of general principles that the Court ascertained had a judicial underpinning, meaning that it did not rely on any external basis or evidence in ascertaining them. The discussion among scholars whether the expression “general principles of law”9 in the Article 38(1)(c) formulation refers to domestic or international law is irrelevant. All general principles, regardless of their underpinning, when used by the Court become (if they are not already) norms of international law. In other words, whatever their underpinning – domestic, international or judicial – general principles are norms of international law. Scholars tend to agree that general principles may be substantive or procedural. However, the Court ascertained an additional third (interpretative) type of general principles. Unlike the substantive general principles that set the standard for States’ conduct outside the international courtroom, and the procedural general principles that regulate the Court’s procedure, interpretative general principles aid the Court in interpreting and ascertaining the

6 Pellet, above n. 2, at 766; Bassiouni, above n. 2, at 779 (observing that this is a “pragmatic approach”). 7 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). 8 Bassiouni, above n. 2, at 772 (noting that general principles may “emerge from the customary practice of States or from treaties”). 9 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c) (emphasis added).

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a­ pplicable international law, while not also themselves forming part of the applicable law. There are, however, certain similarities when comparing the scholarship and the Court’s jurisprudence concerning general principles. Both the scholars and the Court seem to prefer to rely on the norms’ customary character rather than on their (additional) existence as general principles. Like the scholars, the Court does not clearly define general principles, nor does it outline its method for their ascertainment. Although the Court is a judicial body and not a parliament or an entity tasked with defining notions of international law, an increased level of awareness about how it relies on general principles and a glimpse into its in camera process in ascertaining the applicable law would certainty expedite any scholarly agreement consensus its reliance on Article 38(1)(c) of the Court’s Statute. In 1990, Bassiouni predicted that general principles would become “the most important and influential source of international law” before the turn of the 21st century.10 His prediction, although not entirely implausible, was premature given the lack of consensus as to what general principles are. In addition, there are two emerging trends in the Court’s jurisprudence that may be detrimental to the recognition of the value and importance of general principles in the future. Firstly – and most likely a result of years of uncertainty and discord as to the various aspects, including the very existence of general principles as a source – the Court has begun to attribute retroactively the status of customary international law to norms it originally ascertained as general principles. Although a norm may simultaneously exist both as a general principle and as a customary international norm (for example, the existence of customary norms that are reflected in the Vienna Convention on the Law of Treaties (vclt) demonstrates that this is indeed possible), the Court’s express preference for relying on the norms’ customary nature rather than on their existence as general principles could indicate that Article 38(1)(c) may have fallen into judicial disfavour. Secondly, the Court frequently relies on ‘other rules’, i.e., norms of international law that prima facie do not belong to any of the three traditional sources of international law. The Court’s reliance on ‘other rules’ may again be to the detriment of the general principles, and in particular to those of the procedural type. The research findings indicate that although the general principles feature prominently in the icj’s jurisprudence, the Court’s reliance on general principles is perhaps waning. Between 1948 and 2018, for example, the icj ­ascertained 10

Bassiouni, above n. 2, at 769.

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on average relatively fewer general principles each year of its operation (1.86 general principal per year) when compared to the pcij (3.6 general principle per year). How can the contribution of general principles – a source of international law that was not part of positive international law before 192011 – be acknowledged, and its continued relevance in international law ensured? Bassiouni suggests that the findings concerning the Article 38(1)(c) source be codified as part of a treaty.12 However, codifying the essence of general principles in a (draft) treaty might not be the most prudent of solutions. Codifying the essence of Article 38(1)(c) into a treaty would subject the evolution of general principles to a particular treaty, and make it indirectly contingent on Article 38(1)(a) of the Court’s Statute (to the extent that general principles are not already subject to treaties, as the Court’s Statute is a treaty). Retaining each of the sources as separate and true to its own Article 38(1) provisions may be better than allowing Article 38(1)(c) to be governed by Article 38(1)(a) of the Court’s Statute. A more sustainable idea, and one supported by Bin Cheng,13 is to outline the essence of the general principles in a non-binding written agreement or a code.14 Agreeing on a non-binding draft Code that would ideally see in its drafting the participation of scholars of all legal traditions (beyond the membership of the International Law Commission) is more suited to the nature of the general principles whose ‘rules’ and ‘principles’ reflect (or at least should reflect) the implied consensus of the international community. The four Conclusions provided in Chapter 3 (see also Appendix i) provide some ideas as to what this agreement could encompass. Among the steps towards demystifying Article 38(1)(c) for the international community would also be amending the “archaic”15 1920 formulation of “the 11

Pellet, above n. 2, at 686 (noting that several members of the 1920 Advisory Committee of Jurists (acj) considered only treaties and custom to be positive international law). 12 Bassiouni, above n. 2, at 818. 13 Cheng, General Principles of Law as Applied by International Courts and Tribunals (London: Stevens and Sons, 1953; reprinted by Cambridge University Press, 1987), at 22 (referring to “some future Code of International Law”), 397–399. See also Cheng, ‘General Principles of Law as Subjects for International Codification’, 4 Current Legal Problems 1, 35 (1951), at 35. 14 See also Int’l L. Comm’n, First report on general principles of law by Marcelo VázquezBermúdez, Special Rapporteur, Rep. of the Int’l L. Comm’n (2019), U.N. Doc. A/CN.4/732, at ¶34 (proposing adopting draft conclusion with commentaries as the final outcome of the project on General Principles of Law). 15 Spiermann, ‘The History of Article 38 of the Statute of the International Court of Justice: “A Purely Platonic Discussion”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017), at 166.

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general principles of law recognized by civilized nations”.16 A statement that more accurately describes the application of the third source in the Court’s jurisprudence, as compared to the current one, is the legal principles and rules recognised by the Court for the entire international community or, simply, norms ascertained by the Court. Despite the well-meaning scholarly scepticism towards the Court’s international law-making that is implied in the suggested new formulation, some judicial innovation – which is part of the current ­reality – is necessary for a sustained development of international law. Replacing “general principles” with ‘principles and rules’ aids the understanding that Article 38(1)(c) encompasses two modalities of norms – both ‘principles’ and ‘rules’. This would dispel the myth that general principles are only ‘principles’, as many of the general principles ascertained by the Court are very concrete and directly applicable ‘rules’ of international law. Adding the word ‘legal’ before ‘principles’ distinguishes the ‘principles’ based in law from moral, social and other non-legal ‘principles’. The Court may or may not rely on non-legal principles as part of Article 38(2) in ex aequo et bono decisions but not when deciding in accordance with Article 38(1) of the Court’s Statute. As the chapeau of Article 38(1) confirms, “[the Court’s] function is to decide in accordance with international law”.17 Along the same lines, ­adding the words ‘of international law’ to the new formulation might be redundant, because – as the chapeau of Article 38(1) evidences – all ‘rules’ and ‘(­legal) principles’ ascertained by the Court are (or become after the Court has used them) part of international law. The word ‘general’ is referring to this source’s applicability rather than ­describing its content. In other words, Article 38(1)(c) norms apply to the interna­tional community as part of general international law, while their ­content may be general or specific. To avoid further disagreements as to its ­meaning, the term ‘general’, which does not add to the content of Article 38(1) (c), although present in the original wording, is omitted from the new Article 38(1)(c) formulation. Who ‘recognises’ general principles? The current formulation of Article 38(1)(c) provides that general principles are “recognized by civilized nations”.18 However, and as the Court’s jurisprudence attests, general principles are ascertained (and recognised) by the Court. In addition to the Court’s jurisprudence being devoid of any comparative analysis of domestic (or nations’) laws in its ascertainment of general principles, the Court is the entity that is supposed to represent the “the main forms of civilization and […] the principal legal 16 17 18

Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). Ibid., art. 38(1) (emphasis added). Ibid., art. 38(1)(c).

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Conclusion

systems of the world”.19 As such, the Court is entitled to recognise general principles on behalf of the international community. Or, in other words, the Court recognises general principles – a task conferred on it by the Advisory Committee of Jurists (acj) in 192020 – on behalf of the so-called ‘civilized nations’. The expression “civilized”21 in the current formulation of Article 38(1)(c) is redundant. When equated with ‘law-abiding’, the word ‘civilized’ applies to the entire international community, because all States and other international actors are (or are expected to be) law-abiding. In other words, no member of the international community is officially considered to be ‘uncivilised’. This term’s relevance has, therefore, expired. Similarly, the expression ‘nations’ may be omitted from the Article 38(1)(c) formulation, as it was omitted from Article 38(1)(b).22 The text of Article 38(1) uses the word ‘nations’ only in relation to the general principles, but not also in describing treaties and customary international law. In fact, Article 38(1)(a) ­expressly refers to ‘States’. Thus, it follows that ‘nations’ and ‘States’ are not to be equated. The 1920 acj might have equated ‘nations’ to the then-existing international community of peoples, nations and States that extended beyond the League of Nations’, then 49-member States. The expression “nations”23 in Article 38(1)(c) probably stands for what is now understood by the expression ‘the entire international community’, rather than referring only to States. The change in the Article 38(1)(c) wording from “the general principles of law recognized by civilized nations”24 to the legal principles and rules ­recognised by the Court for the international community is in reality highly unlikely to ­occur. However, the adoption of a clearer definition of the nature and role of 19 Ibid., art. 9. 20 The acj drafted the general principles as a source to be ascertained by the Court when no treaty or customary international law would be available. See. e.g., Procès-Verbaux of the Proceedings of the Committee, 16 June–24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 296 (Hagerup). 21 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). 22 Although the 1920 draft by the acj included the word ‘nations’ in relation to customary international law (“international custom, being recognised practice between nations accepted by them as law”), it was removed by the League of Nations. See Procès-Verbaux of the Proceedings of the Committee, above n. 20, at 344 (Annex no. 1; emphasis added). The pcij Statute, adopted by the League, referred only to “[i]nternational custom, as evidence of a general practice accepted as law” and did not refer to ‘nations’. Statute of the Permanent Court of International Justice, League of Nations (ser.D) No. 1, 16 Dec. 1920, art. 38(2). Art. 38(1)(d) of the icj Statute still refers to “the teachings of the most highly qualified publicists of the various nations”. Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(d) (emphasis added). 23 Statute of the International Court of Justice, 24 Oct. 1945, 1491 u.n.t.s. 199, art. 38(1)(c). 24 Ibid.

Conclusion

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general principles would be useful not only for its future development as a selfstanding source of international law but also for the development of international law in general. Whether or not the contribution of general principles is acknowledged in one way or the other, the Court could nevertheless take steps to increase its transparency when ascertaining norms of international law and attributing them to each of the three traditional sources of international law. Clearly indicating its reliance on general principles in the Court’s jurisprudence would aid scholars in following the Court’s cues and providing in-depth research of norms so ascertained. Such scholarly output would not only assist in decyphering the rules and principles of international law and contribute to filling the void created by the absence of an international parliament, but it would also increase the trust of the international community in the international legal structure and its functioning. However, general principles are not only for scholars to debate and theorise. They are the very elements the international legal system is made of. The Court’s jurisprudence between 1922 and 2018 provides an insight into the past and present state of the general principles and reveals that – although seemingly the ‘smallest’ of the elements of international law – general principles are nevertheless one of the building blocks of the international legal system. In 1921, Oppenheim wrote that “[h]e [or she] who would portray the future of international law must first of all be exact in his attitude towards its past and present”.25 As the centenary of the adoption of the Court’s Statute approaches in 2020, scholars and practitioners of various backgrounds could come ­to­gether and – based on objective data and transparent (if not already exact) research m ­ ethodologies – finally agree on general principles’ definition, content, and their future role in international law. 25 Oppenheim, The Future of International Law (New York: Humphrey Milford, 1921), at 1.

Part 3 Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018)

∵

Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018) This Digest, preceded here by the List of General Principles, details the 156 general principles ascertained by the Court in its 171 decisions and ten orders handed down between 1922 and 2018. The Digest classifies the general principles according to their types into 93 substantive (numbers 1 to 93), 41 procedural (numbers 94 to 134) and 22 interpretative (numbers 135 to 156) general principles. Substantive general principles are sub-divided into 11 topics, procedural ones into six and interpretative into seven topics. Each of the 156 entries describes the general principle’s type, underpinning and recurrence, and is followed by one or more excerpts of the Court’s jurisprudence (the pcij’s jurisprudence spans from 1923 to 1939, and the icj’s from 1948 to 2018), from the earliest to the latest decision in which the Court referred to a particular general principle. Not all of the Court’s excerpts assigned to a particular general principle contain a reference to a ‘principle’. Due to this study’s research method (see Chapter 6), one mention of the word ‘principle’ in the entire Court jurisprudence sufficed to classify a particular norm as a general principle within the meaning of Article 38(1)(c) of the Court’s Statute. Reference to ‘principle’ in the excerpts of the Court’s decisions are marked in bold. The rare Court references to principles (in plural), rather than to ‘principle’ (e.g., humanitarian principles, at number 80) are here considered as forming one unit (i.e., as one general principle). This Digest encompasses only those general principles that appear in the jurisprudence of the Court. Any inadvertent omissions of general principles that were mentioned by the Court but were not also included in the Digest is the responsibility of the author alone.1 General principles ascertained by other international courts and tribunals or those listed by other scholars were – ­unless also referred to in the Court’s jurisprudence as ‘principles’ – outside the scope of this study and, consequently, not included in the Digest.

1 See also Chapter 6, at 193–233.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_013

352 1.1 i a 1 2 3 4 5 6 7 b 8 9 10 11 12 c 13 14 15 16 17 18 19 20

Digest of General Principles

List of General Principles Substantive General Principles Law of Treaties General principle that a treaty between two States cannot affect the rights of a third State | General principle of res inter alios acta General principle that a multilateral convention is the result of an agreement freely concluded upon its clauses General principle that the international agreement cannot, as such, create direct rights and obligations for private individuals General principle that treaties with a territorial character are not affected by the succession of States General principle of continuity of the boundary and territorial treaties General principle regulating the termination of a treaty relationship on account of breach General principle of rebus sic stantibus Diplomatic and Consular Law General principles governing diplomatic and consular relations General principle to negotiate in good faith General principle of the inviolability of the person of diplomatic agents and the premises of diplomatic missions General principle of independence of international civil servants General principle of consular protection Law of State Sovereignty General principle of State independence | General principle of State sovereignty | General principle of territorial sovereignty (integrity) General principle of sovereign equality General principle of the freedom of States to regulate their own legislation General principle of the freedom of States to regulate their currency General principle of the territoriality of domestic criminal law General principles governing decolonisation General principle of non-annexation General principle of non-encroachment (on the natural prolongation of the land territory of the other)

361 362 362 363 363 364 365 368 368 375 375 376

376 380 381 382 382 383 383 384

Digest of General Principles

353

21 22 23

385 387

24 25 26 d 27 28 29

30 31

32 e 33 34 35 36

General principle of non-intervention General principle on the non-use of force General principle that every State has an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States General principle that although all States are equal before the law and are entitled to equal treatment, equity does not imply equality General principle that all States, including coastal States, in exercising their freedom of fishing, must pay reasonable regard to the interests of other States General principle of permanent sovereignty over a State’s natural resources Law of State Responsibility General principle of the international responsibility of States (State responsibility) General principle that only the right, and not the interest, infringed involves responsibility (in relation to diplomatic protection) General principle that recognising the immunity of the State does not amount to recognising as lawful a serious breach of an obligation and aid or assistance to maintain that situation should not be offered General principle that the compatibility of an act of international law can be determined only by reference to the law in force at the time when the act occurred General principle that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse or some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question General principle of ex injurira jus non oritur Law of State Succession General principle of State succession General principle of ‘automatic succession’ in case of certain types of treaties General principle of subrogation General principle of uti possidetis juris

390 392 392 392

393 398

398 399

399 400 401 403 404 405

354 37 38

f 39 40

Digest of General Principles

General principle that in the case of change of sovereignty, private rights acquired under existing law do not cease to exist General principle of the stability of boundaries | General principle that a territorial regime established by a treaty achieves a permanence which the treaty itself does not enjoy Law of Economic Relations General principle of freedom of trade General principle of economic equality

g Reparation 41 General principle of (the right to) reparation and/or compensation 42 General principle of restitutio in integrum 43 General principle of lump sum payments h 44 45 46 47 48 49 50 51 52 53

54 55 56

Individuals, Peoples, and International Organisations General principle that rights cannot be derived from the mere fact of membership of the organisation in itself General principle of self-determination of peoples General principle of humanity General principle that the well-being and development of peoples not yet able to assume a full measure of self-government form a ‘sacred trust of civilization’ General principle of speciality General principle of implied powers General principle of equal rights of members to the functioning of the League of Nations General principle of unanimity General principle of majority General principle that the rights of member States must be derived from and depend on the particular terms of the instrument constitutive of the organisation, and of the other instruments relevant in the context General principle with regard to recourse to tribunals accessible to private persons General principle of respect for vested rights | General principle of acquired rights General principle of equality | General principle of equal treatment

414 414 415 417

417 434 437

438 438 442 442 443 444 445 445 446

447 447 448 450

Digest of General Principles

i 57 58 59 60 61 62 63 64 65 66 67 68 69 70

71 72 73 74 75 76 77 78 79

International Maritime and River Law General principles of maritime delimitation General principle of freedom of the seas General principle that in the case of the delimitation of the continental shelf, delimitation must be the object of agreement between the States concerned General principle of freedom of navigation General principle of non-navigational uses of international watercourses General principle of innocent passage General principle that the belt of territorial waters must follow the line of the coast General principle that a delimitation agreement must be arrived at in accordance with equitable principles Equitable general principles General principle that there is to be no question of refashioning geography or compensating for the inequalities of nature General principle of respect due to all such relevant circumstances General principle of natural prolongation General principle that the land dominates the sea General principle that the coast, in order to be considered relevant for the purpose of the delimitation, must generate projections which overlap with projections from the coast of the other Party General principle that a costal State possesses sovereignty over the sea bed and water column in its territorial sea General principle that an island generates the same maritime rights as other land territory General principle of conservation of fish stocks General principle of freedom of maritime communication General principle of proximity General principle of equidistance General principle of strict proportionality (avoiding significant disproportionality) General principles concerning the régime of ports General principle that the two parts of the Danube are wholly subject to the authority of the Commissions

355 454 454 455 455 458 459 460 460 461 465 465 466 468

470 470 471 471 472 472 473 474 475 475

356 j 80 81 82 83 84 85 k 86 87 88 89 90 91 92 93 ii a 94 95 96 97 98

Digest of General Principles

International Humanitarian Law Humanitarian principles General principle of neutrality General principle of distinction General principle of prohibition on causing unnecessary suffering to combatants General principle of necessity and proportionality General principle of status quo ante bellum Other Substantive General Principles General principle that there can be no question of distributive justice General principle of legal security General principle that a Party which disowns or does not fulfil its own obligations cannot be recognised as retaining the rights which it claims to derive from the relationship General principles of peaceful settlement of disputes General principle that the description of offences and of the applicable legal defences is reserved to domestic law General principle governing the exercise by the Governor of the right to dismiss the President of the Directorate at Memel General principle that concessionaries, who were authorised to collect lighthouse dues, were to be remunerated by the receipts from this source General principle of the responsibility of the Agrarian Fund Procedural General Principles Court’s Jurisdiction General principle of kompetenz-kompetenz General principle that the jurisdiction of the Court depends on the will/consent of the Parties General principle that once the Court establishes jurisdiction, unilateral action of the Party cannot have an effect on the Court’s jurisdiction General principle that the jurisdiction of the Court is limited to the extent accepted by the Parties | General principle of forum prorogatum General principle that the Court must not exceed the jurisdiction conferred upon it by the Parties, but must exercise its jurisdiction to its maximum

475 478 479 479 480 482

482 483 483 484 485 486 486 487

488 492 506 507 509

Digest of General Principles

99

General principle that the jurisdiction of the Court must be established on the date of filing the applications 100 General principle that subsequent withdrawal of the jurisdictional instruments, after the Court has already established jurisdiction, is without effect 101 General principle that the Court should decline to exercise jurisdiction if the rights and interests of a third State would form the subject-matter of any decision which the Court might take | ‘Monetary Gold’ principle 102 General principle that the jurisdiction of the Court derives from a treaty b Procedure before the Court 103 General principles governing the judicial process 104 General principle of equality of the Parties (in judicial proceedings) 105 General principle of audi alteram partem 106 General principle that a Party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established 107 General principle of estoppel 108 General principle that a question referred to the Court for an advisory opinion is communicated to governments likely to be able to supply relevant information 109 General principle that the Court should not penalise a defect in a procedural act which the applicant can easily remedy 110 General principle that a party to legal proceedings must abstain from any measure which might aggravate or extend the dispute (provisional measures) 111 General principle of reciprocity 112 General principle of distinguishing the preliminary objections phase from the merits phase 113 General principle that usually each Party bears its cost of the contentious proceedings before international tribunals 114 General principle that a Party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established 115 General principle that immunity has to be expeditiously decided in limine litis

357 509 511

512 513 514 514 517

517 518 521 522 523 524 531 531

533 534

358

Digest of General Principles

c Functioning of the Court | Court’s Competence 116 General principle that the Court is not required to decline its judicial task merely because the question before the Court is intertwined with a political question 117 General principle of non ultra petita 118 General principle of the sound administration of justice 119 General principle that the Court (as a judicial body) is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions 120 General principle of jura novit curia 121 General principle that the role of the Court in review proceedings is not to retry the case d 122 123 124 125

Standing before the Court General principle of diplomatic protection General principle of exhaustion of domestic remedies General principle of the bond of nationality General principle that only States or Members of the League of Nations can be Parties in cases before the Court

e Facts and Evidence 126 General principle that maps have only informational value, and are not evidence of a frontier, except when they are the physical expression of the will of the State 127 General principle that the facts on which its judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case 128 General principle that litigant seeking to establish the existence of facts bears the burden of proving it | General principle of burden of proof | General principle of onus probandi incumbit actori f Other Procedural General Principles 129 General principle that an organ which intervenes in a procedure which, taken as a whole, is judicial in nature must observe the rules governing its composition and its functioning 130 General principle that the requirements of the judicial process should be observed not only during the two sets of judicial proceedings but also during the operation of the political organ with quasi-judicial functions

535 535 537 540 542 543 543 552 557 559

560 560

561

567

568

Digest of General Principles

359

131 General principle that denial of justice is not established unless the rights of private citizens have been refused judicial protection 132 General principle of equality of access to courts and tribunals 133 General principles governing the validity of arbitral awards 134 General principle for keeping the Court’s General List

568 568 570 571

iii Interpretative General Principles a Good Faith and Pacta Sunt Servanda 135 General principle of good faith 136 General principle of pacta sunt servanda

571 582

b General Principles Specific to Treaty Interpretation 137 General principle that a legal text should be interpreted in such a way that a reason and a meaning be attributed to every word in the text 138 General principles generally applicable to treaty interpretation 139 General principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself 140 General principle that international obligations cannot transmit to another international agreement unless the international agreement expressly allows 141 General principle that if the wording of a treaty provision is not clear, in choosing between several admissible interpretations the one which involves the minimum of obligations for the Parties should be adopted 142 General principle that the intention of the Parties in concluding an agreement is decisive

584 585 587 589

589 590

c General Principles Not Specific to Treaty Interpretation 143 General principle of effectiveness | General principle according to which statements must be given their maximum effect in order to ensure the achievement of their underlying purposes | General principle of ut res magis valeat quam pereat | General principle of appropriate effect 591 144 General principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd 596

360

Digest of General Principles

145 General principle that a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with appropriate regard for the intentions of the reserving State and the purpose of the reservation 602 146 General principle that special words override the general expressions (lex specialis derogat legi generali) 605 d General Principle of Interpreting Customary International Law 147 General principle that only if State abstentions are based on their being conscious of having a duty to abstain is it possible to speak of international custom 605 e General Principles of Interpreting International Decisions 148 General principle of res judicata 606 149 General principle that reliance on the principle that a decision in a judgment or an arbitral award can only be opposed to the Parties 626 f General Principles Delineating International Law from Domestic Law 150 General principle that international law prevails over national law 151 General principle that the considerations of domestic law cannot in any event the State of its international obligations 152 General principle that a State is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligation undertaken g Other Interpretative General Principles 153 General principle of intertemporal law 154 General principle that a limitation of sovereignty must be construed restrictively 155 General principle that the right of giving authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it | General principle of ejus est interpretare legem cujus condere 156 General principle that the law should not be applied retrospectively to determine matters of legality and responsibility | General principle that the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred

626 627 631 631 632

633

634

Digest of General Principles

361

1.2 Digest of General Principles Ascertained by the Permanent Court of International Justice and the International Court of Justice (1922–2018) I a 1

Substantive General Principles Law of Treaties General principle that a treaty between two States cannot affect the rights of a third State | General principle of res inter alios acta Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Honduras for Permission to Intervene [2011] i.c.j. 420 (4 May) 2011 In the 2011 decision the Court referred to the ‘principle of res inter alios acta’ (abstract, at 442). “Such bilateral treaties, under the principle res inter alios acta, neither confer any rights upon a third State, nor impose any duties on it. Whatever concessions one State party has made to the other shall remain bilateral and bilateral only, and will not affect the entitlements of the third State. In conformity with the principle of res inter alios acta, the Court in the 2007 Judgment did not rely on the 1986 Treaty” (at ¶72). The effect of this general principle was that the Court did not take the 1986 treaty into consideration, but based its determination of the maritime boundary between Colombia and Nicaragua on “the coastline and maritime features of the two Parties” (at ¶73). Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 The Court referred to this general principle as a ‘fundamental principle of international law’. The Court said that “[i]t is a fundamental principle of international law that a treaty between two States cannot, by itself, affect the rights of a third State” (at ¶227). In ascertaining this general principle, the Court relied on the arbitral award in the Island of Palmas case by citing the Reports of International Arbitral Awards (riaa), Vol. ii, at 842. The Court in its 2012 case said that “[i]n accordance with that p ­ rinciple [of res inter alios acta], the treaties which Colombia has ­concluded with Jamaica and Panama and the treaty which it has signed with Costa Rica cannot confer upon Colombia rights against ­Nicaragua and, in

362

Digest of General Principles

particular, cannot entitle it, vis-à-vis Nicaragua, to a greater share of the area in which its maritime entitlements overlap with those of Nicaragua than it would otherwise receive” (at ¶227). 2

1951

3

General principle that a multilateral convention is the result of an agreement freely concluded upon its clauses This general principle originated in the icj’s jurisprudence, in the 1951 Reservations to the Genocide Convention advisory opinion. The Court interpreted this general principle together with that of the ­majority. By relying on both general principles, Court said that “[i]t is well established that in its treaty relations a State cannot be bound ­without its consent” (at 21). Type: Substantive Underpinning: Judicial Recurrence: none Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15 (28 May). The Court said that “it is […] a generally recognized principle that a multilateral convention is the result of an agreement freely concluded upon its clauses and that consequently none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’être of the convention. To this principle was linked the notion of the integrity of the convention as adopted, a notion which in its traditional concept involved the proposition that no reservation was valid unless it was accepted by all the contracting parties without exception, as would have been the case if it had been stated during the negotiations” (at 21). General principle that the international agreement cannot, as such, create direct rights and obligations for private individuals Type: Substantive Underpinning: Judicial Recurrence: none

Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15 (3 Mar.) 1928 “[A]ccording to a well established principle of international law, the Beamtenabkommen [1921 Danzig-Polish Agreement], being an international agreement, cannot, as such, create direct rights and obligations for private individuals” (at 17).

Digest of General Principles

4

363

General principle that treaties with a territorial character are not ­affected by the succession of States Type: Substantive Underpinning: International Recurrence: none

Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 “In its Commentary on the Draft Articles on Succession of States in respect of Treaties […] the International Law Commission identified ‘treaties of a territorial character’ as having been regarded both in traditional doctrine and in modern opinion as unaffected by a succession of States […] The draft text of Article 12, which reflects this principle, was subsequently adopted unchanged in the 1978 Vienna Convention. The Court considers that Article 12 reflects a rule of customary international law; it notes that neither of the Parties disputed this” (at ¶123). The Court explained this general principle by saying that “this formulation was devised rather to take account of the fact that, in many cases, treaties which had established boundaries or territorial régimes were no longer in force […] Those that remained in force would nonetheless bind a successor State” (at ¶123). 5

1982

General principle of continuity of the boundary and territorial treaties Type: Substantive Underpinning: International Recurrence: none Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18 (24 Feb.) “The boundary remained unchanged [between the two World Wars], and it exemplifies the principle declared in the 1964 Cairo Resolution of the Organization of African Unity, according to which ‘all Member States pledge themselves to respect the borders existing on their achievement of national independence’. This rule of continuity ipso jure of boundary and territorial treaties was later embodied in the 1978 Vienna Convention on Succession of States in respect of ­Treaties. Thus the permanence and stability of the land frontier is one of the points where the Parties are in full agreement” (at ¶84).

364 6

Digest of General Principles

General principles regulating the termination of a treaty relationship on account of breach Type: Substantive Underpinning: International, Judicial Recurrence: 2 icj decisions

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 “In examining this action of the General Assembly it is appropriate to have regard to the general principles of international law regulating termination of a treaty relationship on account of breach. For even if the mandate is viewed as having the character of an institution, as is maintained, it depends on those international agreements which created the system and regulated its application […] The rules laid ­down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted ­without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject. In the light of these rules, only a material breach of a treaty justifies termination” (at ¶94). “For this objection to prevail it would be necessary to show that the mandates system. as established under the League, excluded the application of the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character (as indicated in Art. 60, para. 5, of the Vienna Convention). The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded” (at ¶96). “That this special right of appeal was not inserted in the Covenant cannot be interpreted as excluding the application of the general principle of law according to which a power of termination on account of breach, even if unexpressed, must be presumed to exist as inherent in any mandate, as indeed in any agreement” (at ¶98).

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“To contend, on the basis of the principle of unanimity which applied in the League of Nations, that in this case revocation could only take place with the concurrence of the Mandatory, would not only run contrary to the general principle of law governing termination on account of breach, but also postulate an impossibility. For obvious reasons, the consent of the wrongdoer to such a form of termination cannot be required” (at ¶101). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 In this decision, the Court referred to Articles 60–62 vclt (including treaty termination on account of a breach) and declared them to be customary international law. “The Court takes the view that in many respects this applies to the ­provisions of the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in Articles 60 to 62” (at ¶46). “As the Court has already stated above (see paragraph 46), this is the case, in many respects, with Articles 60 to 62 of the ­Vienna Convention, relating to termination or suspension of the operation of a treaty. On this, the Parties, too, were broadly in agreement” (at ¶99). The Court clarified that a state of necessity (within State responsibility) does not provide a ground for termination of a treaty (at ¶101); and that a dormant treaty that is ineffective can be ended only by mutual consent of the Parties (ibid.). “[T]he Court is of the view that it is only a material breach of the treaty itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured State, but it does not constitute a ground for termination under the law of treaties” (at ¶106). 7

General principle of rebus sic stantibus Type: Substantive Underpinning: International Recurrence: 2 pcij and 3 icj decisions

366

1923

1932

Digest of General Principles

Nationality Decrees Issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 4 (7 Feb.) “According to the French contention, as developed in the course of the oral statements, these Treaties, which were concluded for an indefinite period, that is to say, in perpetuity, have lapsed by virtue of the principle known as the clausula rebus sic stantibus because the establishment of a legal and judicial regime in conformity with French legislation has created a new situation which deprives the capitulatory regime of its raison d’étre. It is clearly not possible to make any p ­ ronouncement upon this point without recourse to the principles of international law concerning the duration of the validity of treaties” (at 29). Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46 (7 June) In the abstract, the Court referred to this notion as ‘the rebus sic stantibus clause’ (at 96; abstract). The Court did not consider this question in this decision. “As the French argument fails on the facts, it becomes unnecessary for the Court to consider any of the questions of principle which arise in connection with the theory of the lapse of treaties by reason of change of circumstances, such as the extent to which the theory can be regarded as constituting a rule of international law, the occasions on which and the method by which effect Cali be given to the theory if recognized, and the question whether it would apply to treaties establishing rights such as that which Switzerland derived from the treaties of 1815 and 1816” (at 158).

1973

Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3 (2 Feb.) The Court in this decision referred to rebus sic stantibus as a ‘principle’ and a ‘doctrine’, and a notion that belongs to international law. “In these statements the Government of Iceland is basing itself on the principle of termination of a treaty by reason of change of circumstances. International law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty.

Digest of General Principles

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This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances” (at ¶36). “[I]n order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken” (at ¶43). “While changes in the law may under certain conditions constitute valid grounds for invoking a change of circumstances affecting the duration of a treaty, the Icelandic contention is not relevant to the present case” (at ¶32). “In the present case, the procedural complement to the doctrine of changed circumstances is provided for in the 1961 Exchange of Notes, which specifically calls upon the parties to have recourse to the Court in the event of a dispute relating to Iceland’s extension of fisheries jurisdiction” (at ¶45).

1978

1997

Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) The Court identified the rule that boundary agreements are excluded from the scope of rebus sic stantibus. “Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances” (at ¶85). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) “A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s

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conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty” (at ¶104). “The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases” (at ¶104). b 8

Diplomatic and Consular Law General principles governing diplomatic and consular relations The Court mentioned these general principles without further explanation. Type: Substantive Underpinning: International Recurrence: none

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3 (24 May) 1980 “The frequency with which at the present time the principles of international law governing diplomatic and consular relations are set at naught by individuals or groups of individuals is already deplorable” (at ¶92). 9

General principle to negotiate in good faith Type: Substantive Underpinning: International Recurrence: 19 icj decisions

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 “[T]he United Nations, which undoubtedly conducted the negotiations in good faith” (at ¶84). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3 (25 July) 1974 “In the fresh negotiations which are to take place on the basis of the present Judgment, the Parties will have the benefit of the above appraisal of their respective rights, and of certain guidelines defining

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their scope. The task before them will be to conduct their negotiations on the basis that each must in good faith pay reasonable regard to the legal rights of the other in the waters around Iceland outside the 12-mile limit” (at ¶78). The Court in the holding decided “that the Government of Iceland and the Government of the United Kingdom are under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences concerning their respective fishery rights in the areas specified in subparagraph 2” (at ¶79; holding). Fisheries Jurisdiction (Germ. v. Ice.), Judgment [1974] i.c.j. 175 (25 July) 1974 “In the fresh negotiations which are to take place on the basis of the present Judgment, the Parties will have the benefit of the above appraisal of their respective rights, and of certain guidelines defining their scope. The task before them will be to conduct their negotiations on the basis that each must in good faith pay reasonable regard to the legal rights of the other in the waters around Iceland outside the 12-mile limit” (at ¶69). “Negotiations in good faith, which are ordered by the Court in the present Judgment, involve in the circumstances of the case an obligation upon the Parties to pay reasonable regard to each other’s rights and to conservation requirements pending the conclusion of the nego­tiations. While this statement is of course a re-affirmation of a self-evident principle, it refers to the rights of the Parties as indicated in the present Judgment” (at ¶70). The Court held “that the Government of Iceland and the Government of the Federal Republic of Germany are under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences concerning their respective fishery rights in the areas specified in subparagraph 2” (at ¶77). Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73 (20 Dec.) 1980 “In principle […] it is for the parties in each case to determine the length of those periods by consultation and negotiation in good faith” (at ¶49).

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Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246 (12 Oct.) 1982 “The same principle also entails application of the related rules as to the duty to negotiate with a view to reaching agreement, and to do so in good faith, with a genuine intention to achieve a positive result” (at ¶87). “What general international law prescribes in every maritime delimitation between neighbouring States could therefore be defined as follows [… maritime] delimitation [between States with opposite or adjacent coasts] must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result” (at ¶112). Application for Revision and Interpretation of the Judgment of 24 ­February 1982 in the Case concerning the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192 (10 Dec.) 1985 In this decision, the Court did not refer to the good faith in negotiations; however, it did state that “[a]n obligation to negotiate entails for the parties to it ‘an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it’” (at ¶67). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) 1996 “[T]he Court appreciates the full importance of the recognition by Article vi of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament […] The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith” (at ¶99). In the holding, the Court noted that “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to

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nuclear disarmament in all its aspects under strict and effective international control” (at ¶105; holding). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 The Court found in the holding that “Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977, in accordance with such modalities as they may agree upon” (at ¶155; holding). The Court also referred to its 1980 advisory opinion (at ¶109). Land and Maritime Boundary between Cameroon and Nigeria (Cam­ eroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) 2002 “Articles 74 and 83 of the United Nations Law of the Sea Convention do not require that delimitation negotiations should be successful; like all similar obligations to negotiate in international law, the negotiations have to be conducted in good faith” (at ¶244). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 “It is not for the Court to determine the final result of these negotiations to be conducted by the Parties. In such negotiations, the Parties should seek in good faith an agreed solution based on the findings of the present Judgment” (at ¶261). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) 2007 The Court found “that the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line of that portion of the territorial sea located between the endpoint of the land boundary as established by the 1906 Arbitral Award” (at ¶321; holding). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) 2010 The abstract of this decision notes that the Court considered the “[o]bligation to negotiate in good faith” (at 19; abstract).

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Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644 (5 Dec.) 2011 “[T]he Court notes that although Article 5, paragraph 1, contains no express requirement that the Parties negotiate in good faith, such obligation is implicit under this provision” (at ¶131). “The Court notes that the meaning of negotiations for the purposes of dispute settlement, or the obligation to negotiate, has been clarified through the jurisprudence of the Court and that of its predecessor, as well as arbitral awards. As the Permanent Court of International ­Justice already stated in 1931 in the case concerning Railway Traffic between Lithuania and Poland, the obligation to negotiate is first of all ‘not only to enter into negotiations, but also to pursue them as far as possible, with a view to concluding agreements’ […] However, States must conduct themselves so that the ‘negotiations are mean­ ingful’. This requirement is not satisfied, for example, where either of the parties ‘insists upon its own position without contemplating any modification of it’ […] or where they obstruct negotiations, for example, by interrupting communications or causing delays in an un­ justified manner or disregarding the procedures agreed upon […] ­Negotiations with a view to reaching an agreement also imply that the parties should pay reasonable regard to the interests of the other […] As for the proof required for finding of the existence of bad faith (a circumstance which would justify either Party in claiming to be ­discharged from performance), ‘something more must appear than the failure of particular negotiations’ […] The Court turns to examine whether the obligation to negotiate in good faith was met in the present case in light of the standards set out above” (at ¶ 132–133). “The Court observes that the failure of the Parties to reach agreement, 16 years after the conclusion of the Interim Accord, does not itself establish that either Party has breached its obligation to negotiate in good faith. Whether the obligation has been undertaken in good faith cannot be measured by the result obtained. Rather, the Court must consider whether the Parties conducted themselves in such a way that negotiations may be meaningful” (at ¶134). “[T]he Court emphasizes that the 1995 Interim Accord places the Parties under a duty to negotiate in good faith under the auspices of the

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Secretary-General of the United Nations pursuant to the pertinent Security Council resolutions with a view to reaching agreement on the difference described in those resolutions” (at ¶166). Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections [2018] i.c.j. (1 Oct.) 2015 “The Court concludes that the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean, and, if such an obligation exists, whether Chile has breached it” (at ¶34). “[T]he subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean, and, if such an obligation exists, whether Chile has breached it” (at ¶50). Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Judgment [2016] i.c.j. 255 (5 Oct.) 2016 “The Nayarit statement is insufficient to bring into existence, between the Marshall Islands and India, a specific dispute as to the existence or scope of the asserted customary international law obligations to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control, as well as to cease the nuclear arms race at an early date, or as to India’s compliance with any such obligations” (at ¶47). “The questions of the existence of and extent of customary international law obligations in the field of nuclear disarmament, and India’s compliance with such obligations, pertain to the merits” (at ¶55). Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pak.), Judgment [2016] i.c.j. 552 (5 Oct.) 2016 “[T]he Applicant maintains is a customary law obligation to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control” (at ¶25). The Court said that “[t]he Nayarit statement is insufficient to bring into existence, between the Marshall Islands and Pakistan, a specific dispute as to the existence or scope of the asserted customary international law obligations to pursue in good faith, and to bring to a conclusion” (at ¶47).

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Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. U.K.), Preliminary Objections [2016] i.c.j. 833 (5 Oct.) 2016 In this case, although the Marshall Islands argued that the United Kingdom breached the obligation to negotiate in good faith, the Court did not directly address this contention. “Given its very general content and the context in which it was made, that statement did not call for a specific reaction by the United Kingdom. Accordingly, no opposition of views can be inferred from the absence of any such reaction. The Nayarit statement is insufficient to bring into existence, between the Marshall Islands and the United Kingdom, a specific dispute as to the scope of Article vi of the npt [obligation to negotiate in good faith] and the asserted corresponding customary international law obligation, or as to the United Kingdom’s compliance with such obligations […] In all the circumstances, on the basis of those statements – whether taken individually or ­together – it cannot be said that the United Kingdom was aware, or could not have been unaware, that the Marshall Islands was making an allegation that the United Kingdom was in breach of its obligations” (at ¶50 and 52). Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections [2017] i.c.j. 3 (2 Feb.) 2017 “The Court notes that Article 83, paragraph 1, of unclos, in providing that delimitation shall be effected by way of agreement, requires that there be negotiations conducted in good faith, but not that they should be successful” (at ¶90). “[R]ead in light of Article 83, paragraph 1, of unclos […] the use of the phrase ‘shall be agreed’ in the sixth paragraph does not mean that the Parties have an obligation to conclude an agreement on a continental shelf boundary; it rather means that the Parties are under an obligation to engage in negotiations in good faith with a view to reaching an agreement” (at ¶95). Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections [2018] i.c.j. (1 Oct.) 2018 “While States are free to resort to negotiations or put an end to them, they may agree to be bound by an obligation to negotiate. In that case, States are required under international law to enter into negotiations and to pursue them in good faith. As the Court recalled in the North

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S­ea Continental Shelf cases, States ‘are under an obligation so to ­conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification’” (at ¶86). “In its Judgment on Chile’s preliminary objection, the Court determined ‘that the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean’ (ibid., para. 34). As the Court observed, this alleged obligation does not include a commitment to reach an agreement on the subjectmatter of the dispute” (at ¶89). 10

1980

11

General principle of the inviolability of the person of diplomatic agents and the premises of diplomatic missions Type: Substantive Underpinning: International Recurrence: none United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3 (24 May) “[T]he principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established régime, to the evolution of which the traditions of Islam made a substantial contribution. The fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 of the Convention of 1961 […] Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State. Naturally, the observance of this principle does not mean – and this the Applicant Government expressly acknowledges – that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime. But such eventualities bear no relation at all to what occurred in the present case” (at ¶86). General principle of independence of international civil servants Type: Substantive Underpinning: International Recurrence: none

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Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] i.c.j. 174 (11 Apr.) 1949 “To ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organisation (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, lie should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter” (at 183). 12

General principle of consular protection Type: Substantive Underpinning: International Recurrence: none

LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) 2001 “Article 36, paragraph 1, establishes an interrelated régime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection: the right of communication and access (Art. 36, para. 1 (a))” (at ¶74). c 13

Law of State Sovereignty General principle of State independence | General principle of State sovereignty | General principle of territorial sovereignty (integrity) The Court in Status of Eastern Carelia defined it as a ‘fundamental’ principle; in Customs Regime between Germany and Austria it explained its content, namely, that State independence encompasses economic, political and financial independence (at 45). Type: Substantive Underpinning: International Recurrence: 3 pcij and 7 icj decisions

Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5 (23 July) 1923 In Status of Eastern Carelia, the Court referred to it as to a “fundamental principle of international law” (at 27), relating to Article 17 of the Covenant of the League of Nations.

Digest of General Principles

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Customs Regime between Germany and Austria, Advisory Opinion [1931] p.c.i.j. (ser.A/B) No. 41 (5 Sept.) 1931 In Customs Regime between Germany and Austria the Court said that “[a] State […has] the sole right of decision in all matters economic, political, financial or other with the result that the independence is violated, as soon as there is any violation thereof, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible” (at 45). The Court observed that the violation of Austria’s economic independence (pursuant to Article 88 of the Peace Treaty) would also violate its independence (at 47). In this advisory opinion, the Court identified this general principle as embodied in three international instruments, namely, the Protocol of March 19, 1931, the Treaty of Saint Germain, and Protocol No. 1 of the Treaty of Germain (at 42–45). Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46 (7 June) 1932 The Court said that “[i]t follows from the principle that the sovereignty of France is to be respected in so far as it is not limited by her international obligations” (at 166). The Court said that France cannot be restrained “from establishing at her political frontier a police cordon for the control of traffic” (at 166). In this case, the Court also said that “[l]imitation of sovereignty must be construed restrictively” (at 167). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) 1984 The Court mentioned this general principle together with others, by stating that “[p]rinciples such as […] respect for the independence and territorial integrity of States […] continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated” (at ¶73). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 In this decision, the general principle of State independence was referred to not as a ‘principle’ but a ‘right’. In the abstract to the decision, it is stated as the “right of States to choose political system, ideology and alliances” (at ¶15; abstract).

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“The Court should now mention the principle of respect for State sovereignty, which in international law is of course closely linked with the principles of the prohibition of the use of force and of ­non-intervention. The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory” (at ¶212). The Court referred to Article 18 of the Organization of American States Charter, which provides for State independence together with the general principle of non-intervention (at ¶55). The Court further related the general principle of sovereignty to non-intervention, by noting that “[a] prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy” (at ¶205). The Court seemed to consolidate the right to territorial and political integrity under the general principle of independence of States (at ¶202). The Court explained that it is on the notion of State sovereignty that “the whole of international law rests, and the freedom of choice of the political social, economic and cultural systems of a State (at ¶263). The Court confirmed that State sovereignty also “extends to the area of its foreign policy” (at ¶265). The State is also “sovereign for the purpose of accepting a limitation of its sovereignty” (at ¶261). In this case, the “United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely” (at ¶241). The Court decided that the United States violated Nicaragua’s sovereignty (at ¶292; holding). “The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention” (at ¶251).

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Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 The Court did not refer to State sovereignty as a ‘principle’. The Court merely concluded that “Uganda has violated the sovereignty and also the territorial integrity of the drc” (at ¶165). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] i.c.j. 12 (23 May) 2008 “[T]he Court observes that sovereignty comprises both elements, personal and territorial. In any event, it need not deal with this matter any further as the Court has already found that Johor had territorial sovereignty over Pedra Branca/Pulau Batu Puteh” (at ¶79). Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403 (22 July) 2010 The Court referred to it as a ‘principle’ of territorial sovereignty or territorial integrity, and related it to the right of self-determination and the United Nations Charter. “The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4” (at ¶80). Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 The Court considered the general principle of sovereign equality of States in tandem with the general principle of territorial sovereignty: “[t]his principle [of sovereign equality of States] has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory […] Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it” (at ¶57). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665 (16 Dec.) 2015 The Court referred to territorial sovereignty without using the word ‘principle’ (at ¶69).

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General principle of sovereign equality Type: Substantive Underpinning: International Recurrence: 6 icj decisions

Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] i.c.j. 3 (21 Mar.) 1984 The Court considered the general principle of equality of States as a jurisdictional principle. It stated that “[i]t appears to the Court that if it were to apply this argument to an intervention having the object which, as explained above, is that of Italy, it would be admitting that the procedure of intervention under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction: primarily the principle of consent, but also the principles of reciprocity and equality of States. The Court considers that an exception of this kind could not be admitted unless it were very clearly expressed” (at ¶35). Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) 1985 The Court in this decision recognised the existence of this general principle, but it did not consider it to be part of the applicable law in the case at hand (at ¶54). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court noted that the general principle of sovereign equality could be a corollary to that of non-intervention. It noted that “[the general principle of non-intervention…] has moreover been presented as a corollary of the principle of the sovereign equality of States. A particular instance of this is General Assembly resolution 2625 (xxv), the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States” (at ¶202). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 The Court did not refer to it as a ‘principle’. The Court cited its decision in Territorial Jurisdiction of the International Commission of the River Oder, which stated that “[the] community of interest in a navigable river becomes the basis of a common legal right, the essential features

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of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others” (at ¶85, citing the pcij’s 1929 Territorial Jurisdiction of the International Commission of the River Oder). Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 The Court noted that the “principle of sovereignty equality of States […] is one of the fundamental principles of the international legal order” (at ¶57). The Court related this general principle to that of territorial sovereignty. It stated that “[it] has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory” (at ¶57). The Court also noted that the rule of State immunity “derives from the principle of sovereign equality of States” (at ¶57). It added that “[e]xceptions to the immunity of the State represent a departure from the principle of sovereign equality” (at ¶57). Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Austl.), Order [2014] i.c.j. 147 (3 Mar.) 2014 In this case, the Court confirmed that this “is one of the fundamental principles of the international legal order and is reflected in Article 2, paragraph 1, of the Charter of the United Nations” (at ¶27). The Court noted that the general principle of sovereign equality provides for the right “to communicate with its counsel and lawyers in a confidential manner with regard to issues forming the subject-matter of pending arbitral proceedings and future negotiations between the Parties” (at ¶27). 15

General principle of the freedom of States to regulate their own legislation Type: Substantive Underpinning: Judicial Recurrence: none

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Digest of General Principles

“Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10 (7 Sept.) 1927 “According to one of these stand-points, the principle of freedom, in virtue of which each State may regulate its legislation at its discretion, provided that in so doing it does not come in conflict with a restriction imposed by international law, would also apply as regards law governing the scope of jurisdiction in criminal cases” (at 20). 16

General principle that a State is entitled to regulate its own currency Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) 1929 The Court referred to it as to a “[g]enerally accepted principle that a State is entitled to regulate its own currency” (at 44). “The application of the laws of such State involves no difficulty so long as it does not affect the substance of the debt to be paid and does not conflict with the law governing such debt” (ibid.). Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21 (12 July) 1929 “For, as the Court has explained in its judgment in the case of the Serbian loans, it is a generally accepted principle that a State is entitled to regulate its own currency […] The application of the laws of such State involves no difficulty so long as it does not affect the substance of the debt to be paid and does not conflict with the law governing such debt” (at 122–123). 17

General principle of the territoriality of domestic criminal law The Court in “Lotus” implied that this general principle exists in international law, although “[it] is not absolute” (at 20). Type: Substantive Underpinning: Domestic Recurrence: none

“Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10 (7 Sept.) 1927 “The territoriality of criminal law […] is not an absolute principle of international law and by no means coincides with territorial sovereignty […] the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly

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provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers” (at 20). The Court also wrote about the potential exceptions to this general principle. It noted that “the exceptions in question, which include for instance extraterritorial jurisdiction over nationals and over crimes directed against public safety, would therefore rest on special permissive rules forming part of international law” (at 20). The Court explained domestic underpinning by noting that “[t]hough it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State” (at 20). 18

General principles governing decolonisation Type: Substantive Underpinning: Judicial Recurrence: none

Western Sahara, Advisory Opinion [1975] i.c.j. 12 (16 Oct.) 1975 The Court mentioned ‘basic principles governing decolonization’ in its abstract (at 12; abstract) and said that “the applicable principles of decolonization call for examination by the Court, in that they are an essential part of the framework of the questions contained in the request” (at ¶52). The Court considered those general principles that relate to the decolonisation policy of the General Assembly and related them to the general principles of equal rights and of self-determination of peoples (see, e.g., at ¶¶53–60). 19

General principle of non-annexation The Court did not adduce much content to this general principle; it merely stated (and reaffirmed) that “it is of paramount importance” (International Status of South West Africa, at 131). Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

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International Status of South West Africa, Advisory Opinion [1950] i.c.j. 128 (11 July) 1950 The Court in this case said that “two principles were considered to be of paramount importance: the principle of non-annexation and the principle that the well-being and development of such peoples form “a sacred trust of civilization” (at 131). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1970 The Court repeated its pronouncement in International Status of South West Africa (at 43). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) 2004 The Court repeated its pronouncement in International Status of South West Africa (at ¶70). 20

1969

1985

General principle of non-encroachment (on the natural prolongation of the land territory of the other) Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) The Court in this case referred to this general principle as a rule. The Court noted that “the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State” (at ¶85). Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) The Court referred to this principle as related to the equitable principles. The Court said that the “principle of non-encroachment by one party on the natural prolongation of the other […] is no more than the negative expression of the positive rule that the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances” (at ¶46). The Court stated in the holding that the “delimitation is to be effected by agreement in accordance with equitable principles […] without encroachment on the natural prolongation of the land territory of the other” (at ¶101; holding).

Digest of General Principles

1993

21

385

Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] i.c.j. 38 (14 June) The Chamber confirmed its finding in North Sea Continental Shelf by stating that “maritime boundary claims have the particular feature that there is an area of overlapping entitlements, in the sense of overlap between the areas which each State would have been able to claim had it not been for the presence of the other State; this was the basis of the principle of non-encroachment enunciated in the North Sea Continental Shelf cases” (at ¶59, referring to North Sea Continental Shelf at ¶¶57, 101). General principle of non-intervention Type: Substantive Underpinning: International Recurrence: 3 icj decisions

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) 1984 The Court mentioned the general principle of non-intervention as one among the principles that have been codified in treaties, but that nevertheless “apply as principles of customary law” (at ¶73). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court mentioned the ‘principle of intervention’ in its abstract (at 15; abstract). As to its content, the Court noted that “in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States” (at ¶205). “The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the interna1 affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching […] The Court therefore finds that the support given by the United States […] to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of n ­ on-intervention” (at ¶¶241, 242, 247).

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Digest of General Principles

The Court said that the general principle of non-intervention “would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State […] Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal ­affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law” (at ¶245). The Court did not consider the possible breaches of trade agreements “as a breach of the customary-law principle of non-intervention” (at ¶245). The Court said that the general principle of non-intervention demonstrates that customary international law and treaties “do not overlap exactly” (at ¶176). The Court considered the general principle as a rule of customary international law, and noted that “the Parties are bound by these rules as a matter of treaty law and of customary international law” (at ¶¶183, 185). “[P]rinciple of non-intervention derives from customary international law” (at ¶245, see also at ¶264). The Court considered the general principle of non-intervention as part of customary international law. It said that “[t]he existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice” (at ¶¶200, 202). The Court implied that the general principle of non-intervention – with its presence in numerous international instruments – represents “a customary principle which has a universal application” (at ¶204). “States have not justified their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition” (at ¶207). The Court also noted that this general principle is not codified ­expressly in the United Nations Charter, but that it could be considered as encompassed within the Charter. It said that “statements whereby States avow their recognition of the principles of international law set forth in the United Nations Charter cannot strictly be interpreted as a­ pplying

Digest of General Principles

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to the principle of non-intervention by States in the internal and external affairs of other States, since this principle is not, as such, spelt out in the charter. But it was never intended that the Charter should embody written confirmation of every essential principle of international law in force” (at ¶202). The Court concluded that the United States had violated “its obligation under customary international law not to intervene in the affairs of another State” (at ¶292; holding). The Court also said that this general principle “has […] been presented as a corollary of the principle of the sovereign equality of States” (at ¶202). The Court related the general principle of non-intervention with the general principle of the non-use of force: “acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations” (at ¶209). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 The Court confirmed its reasoning in Military and Paramilitary Activities in relation to the general principle of non-intervention by stating that “the principle of non-intervention prohibits a State ‘to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State’” (at ¶164). In the case at hand, the Court identified “probative evidence as to military intervention” (ibid.). The Court found that Uganda “by engaging in military activities against the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri and by actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the drc, violated […] the principle of non-intervention” (at ¶345). The Court also noted that a breach of the general principle of ­non-intervention also violated the general principle of non-use of force (at ¶164). 22

General principle on the non-use of force Type: Substantive Underpinning: International Recurrence: 6 icj decisions

388

Digest of General Principles

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) 1984 The Court referred to the general principle on the non-use of force as one among the principles that have been codified in treaties, but that nevertheless “apply as principles of customary law” (at ¶73). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court in the abstract referred to the ‘principle prohibiting resources to the threat or use of force in international law’ (at 15; abstract). This general principle is “regulated both by customary international law and by treaties, in particular the United Nations Charter” (at ¶34). The United Nations Charter covers only a portion of the area covered by the prohibition of the use of force in international relations (at ¶176). The Court noted that it “examined [this general principle] in paragraphs 187 to 200 above. What is unlawful, in accordance with that principle, is recourse to either the threat or the use of force against the territorial integrity or political independence of any State” (at ¶227). In this case, “both Parties [took] the view that the principles as to the use of force incorporated in the United Nations Charter correspond, in essentials, to those found in customary international law. The Parties thus both take the view that the fundamental principle in this area is expressed in the terms employed in Article 2, paragraph 4, of the United Nations Charter. They therefore accept a treaty-law obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State” (at ¶188; see also at ¶189). The Court stated that the general principle of non-use of force “may […] be regarded as a principle of customary international law” (at ¶188). “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary in

Digest of General Principles

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ternational law but also a fundamental or cardinal principle of such law” (at ¶190). An exception to this general principle is the right to collective self-­ defence (at ¶193). “Both Article 51 of the United Nations Charter and Article 21 of the Organization of American States Charter refer to selfdefence as an exception to the principle of the prohibition of the use of force” (at ¶50). The Court decided that the United States had violated “its obligation under customary international law not to use force against another State” (at ¶292; holding). Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) 2003 The Court in this case referred to “international law on the use of force” (at ¶37). In considering the 1956 Treaty, the Court noted that “[­Article  xx] involves the principle of the prohibition in international law of the use of force, and the qualification to it constituted by the right of self-defence” (at ¶43). The Court considered the question of what was unlawful use of force under the customary international law and the United Nations Charter (at ¶42). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) 2004 The Court referred to Article 2(4) of the United Nations Charter in noting that “[a]ll Members shall refrain […] from the threat to use of force against the territorial integrity or political independence of any State” (at ¶87). The Court cited to its Military and Paramilitary Activities decision in noting that “the principles as to the use of force incorporated in the Charter reflect customary international law” (ibid.). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 The Court referred to this general principle as a ‘principle’ (e.g., at ¶345) and noted that it is part of the prohibition in Article 2(4) of the United Nations Charter. The Court added that “[t]he prohibition against the use of force is a cornerstone of the United Nations Charter” (at ¶148).

390

Digest of General Principles

Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403 (22 July) 2010 The Court mentioned unlawful use of force only in passim, when stating that “the illegality attached to the declarations of independence […] stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (at ¶81). 23

General principle that every State has an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) 1949 The Court observed that this general principle is ‘well-recognized’ and that its applicability does not depend on the 1907 Hague Convention. “Such obligations are based, not on the Hague Convention of 1907, No. viii, which is applicable in time of war, but on certain general and well-recognized principles, namely […] every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (at 22). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) 2010 By citing to the Corfu Channel case, “[t]he Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory”, which forms an obligation of international environmental law (at ¶101). The Court added that “as a customary rule, [it] has its origins in the due diligence that is required of a State in its territory” (ibid.). As part of the requirement of this general principle “[a] State is […] obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdication,

Digest of General Principles

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causing significant damage to the environment of another State” (at ¶101). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgement [2015] i.c.j. 665 (16 Dec.) 2015 In this case, the Court referred to both the Corfu Channel and Pulp Mills precedents in relation to this general principle. It further expanded it by noting that “[a]lthough the Court’s statement in the Pulp Mills case refers to industrial activities, the underlying principle applies generally to proposed activities which may have a significant adverse impact in a transboundary context. Thus, to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment” (at ¶104). The Court clarified this general principle’s content again, also by noting that it is an obligation, by “recall[ing] […] that a State’s obligation to exercise due diligence in preventing significant transboundary harm requires that State to ascertain whether there is a risk of significant transboundary harm prior to undertaking an activity having the potential adversely to affect the environment of another State. If that is the case, the State concerned must conduct an environmental impact assessment. The obligation in question rests on the State pursuing the activity. Accordingly, in the present case, it fell on Costa Rica, not on Nicaragua, to assess the existence of a risk of significant transboundary harm prior to the construction of the road, on the basis of an objective evaluation of all the relevant circumstances” (at ¶153). In this case, the Court found that Costa Rica’s actions met “the threshold for triggering the obligation to evaluate the environmental impact of the road project” (at ¶156) and found Costa Rica in violation of “its obligation under general international law by failing to carry out an environmental impact assessment” (at ¶229; holding). The Court placed an expectation on Costa Rica to “continue to pursue these efforts in keeping with its due diligence obligation to monitor the effects of the project on the environment” (at ¶228).

392

Digest of General Principles

24

General principle that although all States are equal before the law and are entitled to equal treatment, equity does not imply equality Type: Substantive Underpinning: Judicial Recurrence: none

Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) 1985 The Court listed this general principle along with other general principles, as one of the well-known examples of equitable principles. The Court said that “equitable principles are expressed in terms of general application, is immediately apparent from a glance at some wellknown examples [among others…] the principle that although all States are equal before the law and are entitled to equal treatment, ‘equity does not necessarily imply equality’” (at ¶46). 25

1974

26

General principle that all States, including coastal States, in exercising their freedom of fishing, must pay reasonable regard to the interests of other States Type: Substantive Underpinning: International Recurrence: none Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3 (25 July) “Iceland’s unilateral action thus constitutes an infringement of the principle of reasonable regard for the interests of other States enshrined in Article 2 of the Geneva Convention on the High Seas of 1958 requires Iceland and the United Kingdom to have due regard to each other’s interests, and to the interest of other States, in those resources” (at ¶67). General principle of permanent sovereignty over its natural resources Type: Substantive Underpinning: International Recurrence: 2 icj decisions

East Timor (Port. v. Austl.), Judgment [1995] i.c.j. 90 (30 June) 1995 In this case, the Court did not refer to this notion as a ‘principle’, but as the “right of the people of the Territory […] to permanent sovereignty over its wealth and natural resources” (at ¶33).

Digest of General Principles

393

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 “While recognizing the importance of this principle [of permanent sovereignty over its natural resources as expressed in the General Assembly Resolutions], which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the drc’s third submission. The Court does not believe that this principle is applicable to this type of situation” (at ¶244). d 27

Law of State Responsibility General principle of the international responsibility of States (State responsibility) Type: Substantive Underpinning: Judicial Recurrence: 2 pcij and 10 icj decisions

Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44 (4 Feb.) 1932 In this case, the Court said that “it is not the constitution and other laws, as such, but the international obligation that gives rise to the responsibly of the Free City. This is in conformity with the general principle of the international responsibility of States” (at 25, emphasis added). Cf. Pajzs‚ Czáky‚ Esterházy, Judgment [1936] p.c.i.j. (ser.A/B) No. 68 (16 Dec.) 1936 In this case, the Court considered whether the responsibility of the Ag­ ra­rian Fund was attributable to Yugoslavia (at 52–53). The Court found that claims directed to the Agrarian Fund could not be attributed to Yu­ goslavia. “Yugoslavia [… was] relieved of all responsibility” (at 64–65). Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74 (14 June) 1938 The Court did not refer to the general principle of international responsibility of States as a ‘principle’. The Court – before finding that it has no jurisdiction to entertain the case further – noted that “it is in

394

Digest of General Principles

this decision that we should look for the violation of international law – a definite act which would, by itself, directly involve international responsibility. This act being attributable to the State and described as contrary to the treaty right of another State, international responsibility would be established immediately as between the two States” (at 28). Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) 1949 Without referring to a ‘principle’, the Court said that “[t]hese grave omissions involve the international responsibility of Albania. The Court therefore reaches the conclusion that Albania is responsible under international law” (at 23, 36; holding). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 In this decision, the Court did not refer to ‘State responsibility’ or a ‘principle’, but instead referred to this general principle as ‘international responsibility’ or merely “responsibility” (e.g., at 14; abstract, and at ¶91). In assessing the United States’ responsibility, the Court said that “[t]he question of the degree of control of the contras by the United States Government is relevant to the claim of Nicaragua attributing res­ ponsibility to the United States for activities of the contras” (at ¶113). The Court said that for the United States’ conduct “to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed” (at ¶113). The Court “[did] not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America” (at ¶292; holding). Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240 (26 June) 1992 In this case, the Court was deciding on State responsibility, without mentioning it as a ‘principle’. It said that “a finding by the Court

Digest of General Principles

395

r­ egarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia” (at ¶55). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) 1996 The Court considered the interplay between State responsibility in general international law and in the Genocide Convention. “[T]he reference in Article ix to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article iii’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article iv of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’” (at ¶32). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 In this case, the Court used the expression ‘law of State responsibility’ (at ¶47). It said that “[i]t is […] well established that, when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect” (at ¶78). “[State of necessity] may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty. Even if found justified, it does not terminate a Treaty […] As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives” (at ¶101). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) 2002 In this case, the Court decided not to “ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation” (at ¶319). The Court said that neither of the Parties “sufficiently proves the facts which it alleges, or their imputability to the other Party” (at ¶324).

396

Digest of General Principles

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory opinion, 2004 i.c.j. 136 (July 9) 2004 The Court did not refer to any ‘principle’ in establishing Israel’s international responsibility. It said that “[s]ince the Court has concluded that the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to various of Israel’s international obligations, it follows that the responsibility of that State is engaged under international law” (at ¶97). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 In this case, the Court did not refer to a ‘principle’ and relates State responsibility to reparation and to rules of international human rights and international humanitarian law. “The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the drc in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation” (at ¶180). The Court identified two additional rules of customary international law relative to State responsibility, namely the “well-established rule of international law, which is of customary character, ‘the conduct of any organ of a State must be regarded as an act of that State’ [and …] a wellestablished rule of a customary nature [… that] a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces” (at ¶¶213–214, citing Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights advisory opinion). In this case, the Court found “that the drc bears responsibility for the breach of the inviolability of the diplomatic premises, the maltreatment of Ugandan diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of Ugandan diplomats at Ndjili International Airport, and for attacks on and seizure of property and archives from Ugandan diplomatic premises, in violation of international law on diplomatic relations” (at ¶344).

Digest of General Principles

397

“The Court observes that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act” (at ¶259, referring to Factory at Chorzow, Gabcikovo-Nagymaros, and Avena decisions). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 The Court notes that State responsibility arises under internatio­ nal, not domestic law. In this case, the Court stated that “the responsi­ bi­lities of States that would arise from breach of such obligations [­under the Genocide Convention], are obligations and responsibilities ­under international law. They are not of a criminal nature” (at ¶170). The Court noted that the International Military Tribunal stated that “international law imposes duties and liabilities upon individuals as well as upon States” (at ¶172). “The Court observe[d] that that duality of responsibility continues to be a constant feature of international law […] the fact that Articles v, vi and vii focus on individuals cannot itself establish that the Contracting Parties may not be subject to obligations not to commit genocide and the other acts enumerated in Article iii” (at ¶¶173–174). The Court “conclude[d] that State responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one” (at ¶182). The Court found that Yugoslavia “failed to comply both with its obligation to prevent and its obligation to punish genocide deriving from the Convention, and that its international responsibility is thereby engaged” (at ¶450). Certain Activities carried out by Nicaragua in the Border Area, Compensation [2018] i.c.j. (2 Feb.) 2018 The Court in this case mentioned the “principles of international law governing the consequences of internationally wrongful acts, including the principle of full reparation” in the context of reparation (at ¶41).

398 28

Digest of General Principles

General principle that only the right, and not the interest, infringed involves responsibility (in relation to diplomatic protection) The Court confirmed that in cases of diplomatic protection, only the rights of the companies – and not the interests of the shareholders – that may be breached involve State responsibility, and consequently reparation. The Court distinguished between an ‘injury in respect of a right and injury to a simple interest’. Type: Substantive Underpinning: Judicial Recurrence: none

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582 (24 May) 2007 The Court referred to its previous pronouncement in Barcelona Traction as a ‘principle’, although the Court in Barcelona Traction did not refer to this finding as a ‘principle’. In this case, the Court “recalls that, as regards diplomatic protection, the principle as emphasized in the Barcelona Traction case, is that: ‘[n]ot a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected’” (at ¶86, emphasis added; citing to 1970 Barcelona Traction). 29

General principle that recognising the immunity of the State does not amount to recognising as lawful a serious breach of an obligation and aid or assistance to maintain that situation should not be offered Type: Substantive Underpinning: International Recurrence: none

Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 The Court referred to a “principle in Article 41 of the International Law Commission’s Articles on State Responsibility” (at ¶93). Article 41(2) provides that ‘[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render

Digest of General Principles

399

aid or assistance in maintaining that situation’ (Article 41(2) ilc Draft articles on State responsibility). The Court noted that this general principle does not allow “recognizing the immunity of a foreign State in accordance with customary ­international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in maintaining that situation” (at ¶93). 30

General principle that the compatibility of an act of international law can be determined only by reference to the law in force at the time when the act occurred The Court identified a general principle in Article 13 of the ilc Draft articles on State responsibility. Type: Substantive Underpinning: International Recurrence: none

Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 The Court noted that this “principle stated in Article 13 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts” (at ¶58). The Court said that this general principle (and the norm embodied in Article 13) provides that “the com­patibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred” (at ¶58). Article 13 provides that ‘[a]n act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’ (Article 13 ilc Draft articles on State responsibility). 31

General principle that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse or some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question Type: Substantive / Procedural Underpinning: Judicial Recurrence: appearing in 1 pcij and 1 icj decision

400

Digest of General Principles

Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9 (26 July) 1927 “[A] principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse or some means off redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question” (at 31; see also 25–26). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 i.c.j. 7 (25 Sept.) 1997 The Court in this case repeated what the pcij stated in 1927 (at ¶110). The Court said that it cannot “overlook that Czechoslovakia committed the internationally wrongful act of putting into operation Variant C as a result of Hungary’s own prior wrongful conduct. As was stated by the Permanent Court of International Justice: ‘It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him’ […] Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object or purpose of the Treaty” (at ¶110). 32

General principle of ex injurira jus non oritur Type: Substantive Underpinning: International Recurrence: none

Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 “The Court, however, cannot disregard the fact that the Treaty has not been fully implemented by either party for years, and indeed that their acts of commission and omission have contributed to creating the factual situation that now exists […] This does not mean that facts – in this case facts which flow from wrongful conduct – determine the

Digest of General Principles

401

law. The principle ex injuria jus non oritur is sustained by the Court’s ­finding that the legal relationship created by the 1977 Treaty is preserved and cannot in this case be treated as voided by unlawful conduct” (at ¶133). e 33

Law of State Succession General principle of State succession Type: Substantive Underpinning: International Recurrence: 3 pcij and 6 icj decisions

Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7 (25 May) 1926 The Court identified general principles of State succession “[as] maintained in the Treaty of Versailles” (at 41). Article 256 of the Treaty of Versailles did not contain the provision on the law governing the transfer of companies’ ownership. By interpreting Article 256 in tandem with the general principles of State succession, the Court found that the law in existence at the time of the transfer of sovereignty is to be applied (ibid.). The Court determined the ownership of the Chorzów factory based on this finding. Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61 (15 Dec.) 1933 In this case, the Court noted that “that Article 191 of the Treaty of Trianon “appli[ed] the principle of the generally accepted law of State succession” (at 237). The Court was not able to apply the general principles of State succession because another provision of the same treaty exempted their application (ibid). Lighthouses case between France and Greece, Judgment [1934] p.c.i.j. (ser.A/B) No. 62 (17 Mar.) 1934 The Court decided that it was not necessary to express its opinion on State succession, as it was not within the scope of the question. The Court was asked to determine “whether, according to the general rules of international law [on State succession], the territorial sovereign is entitled, in occupied territory, to grant concessions legally enforceable against the State which subsequently acquire the territories it occupies” (at 24–25).

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Digest of General Principles

Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) 1986 The Court did not refer to State succession as a ‘principle’. It clarified that “the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis” (at ¶24). “[T]he ordinary operation of the machinery of State succession [provides that …] [b]y becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power” (at ¶30). The Court also said that “the 1935 exchange of letters could not in colonial administrative law […] have resulted in the institution of an intra-colonial boundary which could have been inherited by Upper Volta” (at ¶80). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 Without referring to a ‘principle’ of State succession, the Court said that “State succession is one of the ways in which territorial sovereignty passes from one State to another” (at ¶399). The Court also noted the possibility of joint State succession when succession “create[s] a joint sovereignty where a single and undivided maritime area passes to two or more new States” (at ¶399). In this case, the Court considered the “succession of the newly-­ independent States to all former Spanish islands in the Gulf” (at ¶333). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) 1996 In this case, the Court said that “Bosnia and Herzegovina could become a party to the Convention through the mechanism of State succession. Moreover, the Secretary-General of the United Nations considered that this had been the case, and the Court took note of this in its Order of 8 April 1993” (at ¶20). Yugoslavia had argued that Bosnia

Digest of General Principles

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and Herzegovina “qualified to become a party to the convention [… because it] had flagrantly violated the duties stemming from the ‘principle of equal rights and self-determination of peoples’” (at ¶19). Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] i.c.j. 625 (17 Dec.) 2002 The Court considered State succession as provided in the relevant treaties. The Court “found that the 1891 Convention does not provide Indonesia with a treaty-based title and that title to the islands did not pass to Indonesia as successor to the Netherlands and the Sultan of Bulungan (see paragraphs 94 and 96 above)” (at ¶125). Instead, the Court found that title over the island had been transferred according to ‘effectivites’ (at ¶126 et seq.). Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yu. v. Bosn. & Herz.), Judgment [2003] i.c.j. 7 (3 Feb.) 2003 The Court did not refer to State succession as a ‘principle’, but a field of international law. The Court cited the United Nations Secretary General’s report, which noted that “there are not provisions on the specific conditions for succession that would restrict succession” (at ¶38). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) 2007 The Court considered State succession from all former Spanish colonies and considered this as a fact, rather than law. It stated that “[i]t is commonly recognized that when the Central American States became independent in 1821, none of the islands adjacent to these States was terra nullius; the new States asserted sovereign titles over all the territories that had been under Spanish dominion. Their title was based on succession to all former Spanish colonial possessions” (at ¶133). 34

General principle of ‘automatic succession’ in case of certain types of treaties Type: Substantive Underpinning: Judicial Recurrence: none

404

Digest of General Principles

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) 1996 The Court mentioned this general principle, but did not apply it to the case at hand. The Court said that “[w]ithout prejudice as to whether or not the principle of ‘automatic succession’ applies in the case of certain types of international treaties or conventions, the Court does not consider it necessary in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning State succession in respect to treaties which have been raised by the Parties” (at ¶23). In this case, Yugoslavia contested the validity of Bosnia and Herzegovina’s notice of succession to the Genocide Convention transmitted to the United Nations. Yugoslavia argued that Bosnia and Herzegovina was not “qualified to become a party to the convention” (at ¶19). The Court replied that “[i]t is clear from the foregoing that Bosnia and Herzegovina could become a party to the Convention through the mechanism of State succession” (at ¶20) and that the question of the application of Articles xi [accession] and xiii [entry into force] of the Convention does not arise” (at ¶24). 35

General principle of subrogation Type: Substantive Underpinning: Judicial, International Recurrence: 2 pcij decisions

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2 (30 Aug.) 1924 The Court did not decide on whether concessions hold good against the successor States, and said that “[i]t will suffice to observe that if on the one hand, Protocol xii being silent regarding concessions subsequent to October 29th, 1914, leaves intact the general principle of subrogation, it is, on the other hand, impossible to maintain that this principle falls within the international obligations contemplated in Article ii of the Mandate as interpreted in this judgment” (at 28). In accordance with this general principle, “[t]he Administration of Palestine would be bound to recognise the Jaffa concessions, not in consequence of an obligation undertaken by the Mandatory, but in virtue of

Digest of General Principles

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a general principle of international law to the application of which the obligations entered into by the Mandatory created no exception” (at 28). Mavrommatis Jerusalem Concessions, Judgment [1925] p.c.i.j. (ser.A) No. 5 (26 Mar.) 1925 In this case, without referring to subrogation as a ‘principle’, the Court stated that subrogation depends on the “nationality of the real beneficiaries and not on the mere legal national status of the concessionaire” (at 31). The British government argued that “Palestine cannot be subrogated as regards the rights and obligations which Turkey would have had in respect to these concessions, had they been valid” (at 29). 36

General principle of uti possidetis juris Type: Substantive Underpinning: International, Judicial Recurrence: 2 pcij and 11 icj decisions

Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7 (25 May) 1926 The Court identified one of the characteristics that later became part of the general principle of uti possidetis, namely, that transfer of public property resulting from a cession of territory had to be interpreted according to the law at the time when the transfer of sovereignty took place (at 41). Appeal from a judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61 (15 Dec.) 1933 The Court stated that “[p]aragraphs 1 and 2 lay down, for the application, inter alia, of Articles 249 and 256 of the Treaty of Trianon, the principle that each country retains the property situated in its territory. The first sub-paragraph of paragraph 3 provides for an actual application of that principle” (at 247). The Court did not use the expression ‘uti possidetis’ in describing this general principle. Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) 1986 The Chamber noted that “the principle of uti possidetis has kept its place among the most important legal principles” (at ¶26).

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Digest of General Principles

The Chamber noted that “the application of the principle of uti possidetis gives rise to this respect for intangibility of frontiers” (at ¶20) and that its “essence […] lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved” (at ¶23). The Chamber stated that it “is a firmly established principle of international law where decolonization is concerned, [and] the Chamber […] wishes to emphasize its general scope, in view of its exceptional importance for the African continent and for the two Parties” (at ¶20). The Chamber said that this general principle transforms administrative boundaries into international boundaries and confers the legal title over effective possessions (at ¶23). The Chamber emphasised that despite this general principle having been first applied by the Latin American States, it provided a rule for the entire international community. “[T]he principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power” (at ¶¶20–21). The Chamber said that this general principle does not apply retroactively in State succession. “International law – and consequently the principle of uti possidetis – applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards” (at ¶30). As to the effect of this general principle, the Court noted that “[international law] applies to the State as it is, i.e., to the ‘photograph’ of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does riot put back the hands” (ibid.). “By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession” (at ¶30).

Digest of General Principles

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The Chamber confirmed that this general principle is part of positive international law – and not derived from colonial law – by stating that the frontiers that the Court had determined, based on the general principle of uti possidetis, are “fully in conformity with contemporary ­international law” (at ¶149). The Court considered it as a “principle of customary international law” (at ¶21) with a universal applicability (at ¶23). The Chamber noted in this case that this general principle is “timehallowed […] [I]t may be wondered how the time-hallowed principle [of uti possidetis] has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law” (at ¶25). In paragraph 63 the Chamber explains the possible interactions between uti possidetis and effectivite. The Chamber considered that the provision in the African Union’s Charter embodying the general principle of sovereignty and territorial integrity implicitly recognised the general principle of uti possidetis (at ¶21). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 The Chamber said that “a key aspect of the principle is the denial of the possibility of terra nullius” (at ¶42). The Court confirmed that this is a general principle applicable to the entire international community (at ¶¶25, 28). In this case, the States agreed that the “primary principle to be applied for the determination of the land frontier is the uti possidetis juris” (at ¶40). In relation to the general principle’s scope, the Chamber said that “principle of uti possidetis juris is concerned as much with title to territory as with the location of boundaries; certainly a key aspect of the principle is the denial of the possibility of terra nullius” (at ¶42). “[U]ti possidetis is essentially a retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes” (at ¶43).

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“[W]hen the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign, in this case Spanish colonial law” (at ¶333). The Chamber confirmed that this general principle has been acknowledged in various international fora (at ¶¶28, 34, 42). The Chamber also noted that this general principle was included in treaties that pre-dated the establishment of the Court, namely, the 1895 Convention, which reaffirmed the general principle of uti possidetis (at ¶34). The application of this principle proved “not easy” (at ¶¶43, 345), as uti possidetis enables the application of the law at the time of delimitation (or decolonisation), and not that of the current positive international law. When the colonial powers left the boundary undetermined or vague, the Chamber determined it based the States’ behaviour immediately after they had been established (at ¶¶43, 62, 345). An uti possidetis title is established through possession and the exercise of sovereignty (the so-called effectivites) (at ¶347). “For the uti possidetis juris, the question is not whether the colonial province needed wide boundaries to accommodate its population, but where those boundaries actually were” (at ¶58). The general principle of uti possidetis allows the possibility that the boundaries have changed over time (either by a judicial decision or an agreement between the relevant Parties (at ¶¶67, 80). Pursuant to this general principle, the Chamber did not take into consideration in determining the boundary Parties’ conduct that it had not immediately preceded their establishment of sovereignty (at ¶¶333, 341). The Chamber did not consider Spanish colonial law to provide insight into what the boundaries were at that time; it noted that it would rather rely on the conduct of the newly established States in determining what they considered to be part of their territory (at ¶333). “The Chamber has no doubt that the starting-point for the determination of sovereignty over the islands must be the uti possidetis juris of 1821” (at ¶¶333, 367).

Digest of General Principles

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“[T]he principle of the uti possidetis juris should apply to the waters of the Gulf as well as to the land” (at ¶386). In this case, the Chamber relied on uti possidetis when determining the boundary line (at ¶¶44, 46). “What the Chamber has to do in respect of the land frontier is to arrive at a conclusion as to the position of the 1821 uti possidetis juris boundary; to this end it cannot but take into account, for reasons already explained, the colonial effectivités as reflected in the documentary evidence of the colonial period submitted by the Parties” (at ¶62). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) 1994 The Court said that because Libya was “an original party to the Treaty rather than a successor State […] there is no need for the Court to explore matters which have been discussed at length before it such is the principle of uti posidetis” (at ¶75). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 Because the Court concluded that Bahrain had sovereignty over Hawar Island, for which this principle was claimed, it was not necessary to rule on the arguments of the Parties on the applicability of the general principle of uti possidetis (at ¶¶110, 148). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) 2002 “[T]he Court has not found it necessary to pronounce upon the arguments of uti possidetis advanced by the Parties in relation to Bakassi” (at ¶217). Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Sal. v. Hond.), Judgment [2003] i.c.j. 392 (18 Dec.) 2003 This Chamber decision referred to the pronouncement in the Land, Island and Maritime Frontier Dispute, which noted that the boundary was to be determined “by the application of the principle generally accepted in Spanish America of the uti possidetis juris, whereby the

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Digest of General Principles

boundaries were to follow the colonial administrative boundaries” (at ¶37, citing Land, Island and Maritime Frontier Dispute, at ¶28). The Chamber also noted that the method of the application of this principle (“uti possidetis juris position”) is up to the Court or a treaty (at ¶37). Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90 (12 July) 2005 In this case, the Chamber noted that the uti possidetis juris principle requires that account be taken of the manner in which titles were interpreted and applied by the competent public authorities of the colonial Power and ascertained the relevance of documents and maps postdating independence for the purposes of applying this general principle (at 90 and 92; abstract). The Court clarified that the application of uti possidetis “must be assessed in relation to present-day physical realities” (at ¶25). The Chamber described this general principle with other expressions as well, for example, the general principle of the intangibility of the frontiers inherited from colonialism and the general principle of the succession of States to the frontiers inherited from colonialism (at ¶45). The Chamber further expanded the provision of this general principle by saying that regard had to be had not only to what the existing legal titles were, but also “the manner in which those titles were interpreted and applied by the competent public authorities of the colonial Power, in particular in the exercise of their law-making power” (at ¶140). The Chamber noted that the Parties acknowledged the relevance of this general principle for the solution of the dispute (at ¶23). “[T]he existence of this principle has been recognized on several occasions in the African context [… it] was recognized again recently, in Article 4(b) of the Constitutive Act of the African Union” (at ¶23). The Chamber confirmed its finding in Frontier Dispute where it stated that effective possession must give way to legal title and that the ­essence of uti possidetis was to “secur[e] respect for the territorial boundaries at the moment when independence is achieved”, to which the current Chamber added that it includes “former administrative

Digest of General Principles

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d­ elimitations established during the colonial period that became international frontiers” (at ¶23). In effect, uti possidetis freezes the territorial title (at ¶26). In this case, the Chamber, by relying on the general principle of uti possidetis was determining “the boundary that was inherited from the French administration” (at ¶24) and “ascertain[ed] […] what the course of the intercolonial boundary was at the critical dates of independence” (at ¶127). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) 2007 The aim of the general principle of uti possidetis is to establish State sovereignty (at ¶163). When the legal title cannot be shown pursuant to the general principle of uti possidetis juris, then it can be shown based on the effectivites (at ¶124). The Court determined that it is not applicable to islands with no connection with the mainland coast (at ¶158). “[T]he Court conclude[d] that the principle of uti possidetis affords inadequate assistance in determining sovereignty over these islands [located considerably offshore and not obviously adjacent to the mainland coast of Nicaragua or Honduras] because nothing clearly indicates whether the islands were attributed to the colonial provinces of Nicaragua or of Honduras prior to or upon independence” (at ¶167). The Gámez-Bonilla Treaty between the Parties embodied in Article ii the general principle of uti possidetis (at ¶37). “The terms of the Award of the King of Spain of 1906, [was] based specifically on the principle of uti possidetis juris as established in Article ii, paragraph 3, of the Gámez-Bonilla Treaty, [and] defined the territorial boundary between the two countries with regard to the disputed portions of land” (at ¶154). The Court in this case further elaborated on the notion of terra ­nullius and noted that “[i]t is well established that ‘a key aspect of the principle [of uti possidetis juris] is the denial of the possibility of terra

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nullius’ […] However, that dictum cannot bring within the territory of successor States islands not shown to be subject to Spanish colonial rule, nor ipso facto render as ‘attributed’, islands which have no connection with the mainland coast concerned. Even if both Parties in this case agree that there is no question of the islands concerned being res nullius, necessary legal questions remain to be answered” (at ¶157). “[U]ti possidetis juris presupposes the existence of a delimitation of territory between the colonial provinces concerned having been effected by the central colonial authorities […] in order to apply the principle of uti possidetis juris to the islands in dispute it must be shown that the S­ panish Crown had allocated them to one or the other of its colonial provinces” (at ¶158). The Court, however, “observe[d] that the uti possidetis juris principle might in certain circumstances, such as in connection with historic bays and territorial seas, play a role in a maritime delimitation” (at ¶232) and that “uti possidetis juris may, in principle, apply to offshore possessions and maritime spaces” (at ¶156). The Court noted that “[i]t is beyond doubt that the uti possidetis juris principle is applicable to the question of territorial delimitation between Nicaragua and Honduras, both former Spanish colonial provinces” (at ¶154). The Court confirmed that this general principle has been acknowledged in various international fora (at ¶¶124, 151–154). “The Court begins by observing that uti possidetis juris may, in principle, apply to offshore possessions and maritime spaces” (at ¶156). “The Court observes that the uti possidetis juris principle might in certain circumstances, such as in connection with historic bays and territorial seas, play a role in a maritime delimitation. However, in the present case […] no persuasive case has been made by Honduras as to why the maritime boundary should then extend from the Cape along the 15th parallel” (at ¶¶232, 234). “The Court observes that the mere invocation of the principle of uti possidetis juris does not of itself provide a clear answer as to sovereignty over the disputed islands […] In light of the above considerations the Court concludes that the principle of uti possidetis affords inadequate assistance in determining sovereignty over these islands

Digest of General Principles

413

because nothing clearly indicates whether the islands were attributed to the colonial provinces of Nicaragua or of Honduras prior to or upon independence” (at ¶¶158, 167). “The Court further observes that Nicaragua and Honduras as new independent States were entitled by virtue of the uti possidetis juris principle to such mainland and insular territories and territorial seas which constituted their provinces at independence. The Court, however, has already found that it is not possible to determine sovereignty over the islands in question on the basis of the uti possidetis juris principle” (at ¶234). Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 The Court in this case did not rely on the uti possidetis principle because “[it] affords inadequate assistance in determining sovereignty over the maritime features in dispute between Nicaragua and Colombia because nothing clearly indicates whether these features were attributed to the colonial provinces of Nicaragua or of Colombia prior to or upon independence” (at ¶¶64–65). Frontier Dispute (Burk. Faso/Niger), Judgment [2013] i.c.j. 44 (16 Apr.) 2013 The Court referred to the Frontier Dispute decision in recalling that the general principle of uti possidetis places reliance not only on the existing legal titles but also on “those titles [which are] interpreted and applied by the competent public authorities of the colonial Power” (at ¶66). The Court also said that “[w]hile it is true, as a general rule, that for the purposes of the uti possidetis principle, the effectivités as established at the critical date may serve to compensate for the absence of a legal title or to complete a defective title, that does not hold in the present case, because of the terms of the Special Agreement, which provides that the 1987 Agreement forms part of the applicable law” (at ¶98). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665 (16 Dec.) 2015 In this decision, the Court does not rely on uti possidetis, but merely notes that “[t]he effectivités invoked by the Parties, which the Court considers are in any event of limited significance, cannot affect the title to sovereignty resulting from the 1858 Treaty and the Cleveland and Alexander Awards” (at ¶89).

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37

General principle that in the case of change of sovereignty, private rights acquired under existing law do not cease to exist Type: Substantive Underpinning: Judicial Recurrence: none

Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6 (10 Sept.). 1923 In this case, the Court found that Poland’s actions annulling the rights of German settlers violated their protection as provided by the general principle that in the case of a change of sovereignty, private rights acquired under existing law do not cease to exist (at 36). “Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law, both substantive and adjective, has continued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice” (at 36). 38

General principle of the stability of boundaries | General principle that a territorial regime established by a treaty achieves a permanence which the treaty itself does not enjoy Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

Temple of Preah Vihear (Cambodia v. Thai.), Judgment [1962] i.c.j. 6 (15 June) 1962 The Court did not refer to it as a ‘principle’, but merely stated that “when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality” (at 34). Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) 1978 The Court referred to the “rule excluding boundary agreements from fundamental change of circumstances” (at ¶36). The Court said that regardless of whether the boundary line is on land or the continental shelf, “the process is essentially the same, and inevitably involves the same element of stability and permanence” (at ¶36).

Digest of General Principles

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Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) 1994 The Court referred to the general principle of stability of boundaries as “fundamental principle” and notes that “[its] importance […] has been repeatedly emphasized by the Court” (at ¶72). In this case, the Court noted that “[t]he present Treaty can be terminated by either Party 20 years after its entry into force, or at any later time, provided that one year’s notice is given to the other Party. These provisions notwithstanding, the Treaty must, in the view of the Court, be taken to have determined a permanent frontier” (at ¶72). The Court noted that this general principle provides that a boundary can outlive a treaty. “A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary” (at ¶73). Territorial and Maritime Dispute (Nicar. v. Colom.), Preliminary Objections [2007] i.c.j. 832 (13 Dec.) 2007 In this case, the Court “recalls that it is a principle of international law that a territorial régime established by treaty ‘achieves a permanence which the treaty itself does not necessarily enjoy’ and the continued existence of that régime is not dependent upon the continuing life of the treaty under which the régime is agreed” (at ¶89). Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213 (13 July) 2009 The Court reaffirmed this general principle as stated in Territorial and Maritime Dispute (at ¶68). f 39

Law of Economic Relations General principle of freedom of trade Type: Substantive Underpinning: International Recurrence: 1 pcij and 2 icj decisions

Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) 1934 In this case, the general principle of ‘free trade’ was mentioned as part of the Annex to Article 1 of the Convention of Saint-Germain (at 79).

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The abstract of the decision notes the ‘principles of […] freedom of trade’ (at 65). The Court noted that “paragraph i of Article 5 of the Convention applies this principle of freedom of trade” (at 81). “(a) The main argument of the Government of the United Kingdom is the alleged inconsistency between the measures taken by the Belgian Government and the principles of equality and freedom of trade and freedom of navigation” (at 82–83). This general principle does not “prevent a merchant, a ship-owner, a manufacturer or a carrier from operating temporarily at a loss if he believes that by so doing he will be able to keep his business going” (at 85). A violation of this general principle would occur if a company had a monopoly with which it precluded other companies from exercising their rights (ibid.). The Court said that “all measures affording to customers facilities, reductions in prices, abatements or other advantageous conditions which other concerns are unwilling or unable to offer and which after all, are calculated to promote commerce, would be incompatible with the freedom of trade” (at 85). Oil Platforms (Iran v. U.S.), Preliminary Objections [1996] i.c.j. 803 (12 Dec.) 1996 The Court referred to Oscar Chinn decision and the “concept of freedom of trade under Article 1 of the Convention of Saint-Germain” (at ¶48). The Court noted that “[t]he expression ‘freedom of trade’ was thus seen by the Permanent Court as contemplating not only the purchase and sale of goods, but also industry, and in particular the transport business” (at ¶48). Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) 2003 In this case, the Court considered freedom of commerce under Article x of the 1955 Treaty between Iran and the United States (at ¶79). However, the Court observed that Article x did not protect the freedom of commerce in general (at ¶119). Freedom of commerce was interpreted by the Court in 1996 to include also “the ancillary activities integrally related to commerce” (at ¶80).

Digest of General Principles

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“[T]he Court considers that where a State destroys another State’s means of production and transport of goods destined for export, or means ancillary or pertaining to such production or transport, there is in principle an interference with the freedom of international commerce” (at ¶89). 40

General principle of economic equality Type: Substantive Underpinning: International Recurrence: appearing in 1 pcij and 1 icj decision

Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) 1934 The Court referred to the general principle of commercial equality as part of the Convention of Saint-Germain, which “in itself presupposes […] freedom of trade” (at 83). Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment, 1952 i.c.j. 176 (Aug.27) 1952 The Court referred to ‘economic equality’ as part of the Convention between France and Germany and the Act of Algeciras. “In the Convention between France and Germany of November 4th, 1911, concerning the establishment of this Protectorate, the Government of Germany made in Article i the reservation that ‘the action of France should ­secure in Morocco economic equality between the nations’” (at 184). The Court said that “in view of the governing principle of economic equality, the same methods must be applied without discrimination to all importations, regardless of the origin of the goods or the nationality of the importers” (at 212). The Court added that “[t]he power of making the valuation rests with the Customs authorities, but it is a power which must be exercised reasonably and in good faith” (ibid.). g Reparation 41 General principle of (the right to) reparation and/or compensation Type: Substantive Underpinning: Judicial Recurrence: 5 pcij and 20 icj decisions

1927

Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9 (26 July) In this case, the Court said that this general principle is applicable regardless of whether the treaty that had been breached provided for

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reparation. The Court first considered whether it had jurisdiction to decide on the question of reparation and found that it did (at 32–33). The Court did not decide on the amount of compensation, but only stated that it should be awarded in an ‘adequate form’ (at 21). “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation […] is the indispensable element of a failure to apply a convention and there is no necessity for this to be stated in the convention itself” (at 21). “Consideration of the question of the forms of reparation which are admissible in this case and of the methods of payment indicated would presuppose that the Court had satisfied itself of the existence of an obligation to make reparation and of the existence, nature and extent of the injury resulting from an attitude contrary to Articles 6 to 22” (at 33). In this case, the Court identified this general principle without relying on any treaty provision.

1927

1928

Factory at Chorzów (Indemnities), Order [1927] p.c.i.j. (ser.A) No. 12 (21 Nov.) In this case, the Court rejected Germany’s request for it to award reparation in the form of a provisional measure, which also attests to the novelty of the general principle in its jurisprudence. The Court said that it will decide on reparation as part of its consideration on the merits (at 11). See also Factory at Chorzów (Indemnities), Germany’s Request for Interim Protection [1927] p.c.i.j. (ser.A) No. 12, at 4 (14 Oct.). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17 (13 Sept.) “It is principle of international law and even a general convention of law, that any breach of an engagement involves an obligation to make reparation […] the Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself” (at 29). “[I]t is a principle of international law that the reparation of a wrong may consists in an indemnity corresponding to the damage which the

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nationals of the injured State have suffered as a result of the act which is contrary to international law” (at 27–28). However, the Court said “[t]he rules of law governing the reparation are the rules of ­international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage” (at 28). The Court noted that this general principle was accepted in the jurisprudence of arbitral tribunals (at 31). The Court in this case considered the application of Germany that claim­ed reparation for expropriation of its two companies. “[I]n estimat­ing the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claim, must be taken into account” (at 31). This general principle did not encom­pass the injury resulting for third parties from the unlawful act (ibid.). The Court “la[id] down the guiding principles according to which the amount of compensation due may be determined” (at 46). The Court said that “compensation […] is not necessarily limited to the value of the undertaking at the moment of dispossession, plus interest to the day of payment” (at 47). In this case, the Court identified another general principle, namely, that of restitio in integrum (at 47). The Court’s finding regarding reparation was that first restitution in kind should be attempted, and if that is not possible, payment of a sum corresponding to the value of restitution in kind and a potential award for loss sustained not covered by the payment for the restitution in kind should be considered (ibid.). In this case, the Court confirmed that reparation was a consequence of a violation of Articles 6–22 of the 1922 German–Polish Convention concerning Upper Silesia (Geneva Convention). “As the Court has expressly declared in Judgment No. 8 reparation is in this case the consequence not of the application of Article 6 to 22 of the Geneva Convention but of acts contrary to those articles” (at 46).

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In this case, the Court considered the Geneva Convention, which prohibited expropriation and provided for “restor[ation of] the undertaking and, if this be not possible, to pay its value at the time of the ­indemnification”. The Court, “in virtue of the general principles of international law” said that it must add the obligation “of compensating loss sustained as the result of the seizure” (at 48). The Court said that “[s]uch [are] the principles to be followed in fixing the compensation due” (ibid.). The Court also said that “the cost of construction of a factory may not correspond to the value which that factory will have when built” (at 50). “If the reparation consists in the payment of a sum of money, the Court may therefore determine the method of such payment. For this reason it may well determine to whom the payment shall be made, in what place and at what moment; in a lump sum or maybe by instalments; where payment shall be made; who shall bear the costs, etc. It is then a question of applying to a particular case the general rules regarding payment, and the Court’s jurisdiction arises quite naturally out of its jurisdiction to award monetary compensation. But this principle would be quite unjustifiably extended if it were taken as meaning that the Court might have cognizance of any question whatever of international law even quite foreign to the convention under consideration, for the sole reason that the manner in which such question is decided may have an influence on the effectiveness of the reparation asked for. Such an argument seems hardly reconcilable with the fundamental principles of the Court’s jurisdiction, which is limited to cases specially provided for in treaties and conventions in force” (at 61–62). The Court delayed fixing the exact amount, reserving its decisions regarding the method and the conditions of the reparation until the submission of the report of experts. “The Court […] reserves the fixing of the amount of this compensation for a future judgment, to be given after receiving the report of experts to be appointed by the Court for the purpose of enlightening it on the questions set out in the present judgment and after hearing the Parties on the subject of this report” (at 64). The report of the experts was never delivered because the Parties settled the case. See also Factory at Chorzów, Order [1929] p.c.i.J (ser.A) No. 19, at 13 (25 May).

Digest of General Principles

1933

1934

1949

421

Appeal from a Judgment of the Hungro/Czechoslovak Mixed Arbitral ­Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61 (15 Dec.) In this case, the Court mentioned reparation only in passim, while referring to a decision of the Mixed Arbitral Tribunal and Part viii of the Treaty of Trianon (at 227–228). “The Court need only point out in that connection, first, that the Tribunal, in its judgment, reserved its ­decision on certain matters, in particular those concerned with the ­application of the principle of restitution” (at 248). Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) In this case, the Court only noted that Mr. Chinn’s situation does not raise a question of reparation. “Accordingly, the point concerning reparation for Mr. Chinn, which forms the subject of the second question in the Special Agreement, does not arise” (at 88). Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) “[T]he Court has arrived at the conclusion that it has jurisdiction to assess the amount of the compensation. This cannot, however, be done in the present Judgment” (at 26). The Court also decided “that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction” (at 36). The Court said that in “ensur[ing] respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction” (at 35).

1949

Corfu Channel (U.K. v. Alb.), Compensation [1949] i.c.j. 15 (15 Dec.) The court in this case assessed the ‘amount of compensation due on account of acts involving the international responsibility of a State’ (at 244; abstract). The Court in the holding “[f]ixe[d] the amount of compensation due from the People’s Republic of Albania to the United Kingdom at £843,947” (at 250; holding). In determining the sum to be awarded to the United Kingdom, the Court conferred with a committee of experts (at 247–248).

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The Court observed that “[i]t cannot award more than the amount claimed in the submissions of the United Kingdom Government” (at 249).

1973

1980

Application for Review of Judgment No. 158 of the United Nations ­Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) Without referring to it as a ‘principle’, the Court said that the purpose of the principle of reparation is to “wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if the act had not been committed” (at 197). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3 (24 May) In this case, the Court did not refer to reparation as a ‘principle’. It did, however, refer to it as an ‘obligation’. The Court said that Iran had the “obligation […] to make reparation for the injury thereby caused to the United States” (at ¶90). The Court could not determine the amount and form of reparation at the time of delivering its decision because Iran’s violations were still ongoing then (ibid.). The Court said that Iran was under an obligation to make reparation in the form and amount to be decided by the Court in subsequent proceedings if the Parties did not reach an agreement on this point (at ¶95; holding).

1986

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “In order to decide on these submissions, the Court must satisfy itself that it possesses jurisdiction to do so. In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation” (at ¶283). “[T]he Court notes that in its declaration of acceptance of jurisdiction under the Optional Clause of 26 August 1946, the United States expressly accepted the Court’s jurisdiction in respect of disputes concerning ‘the nature or extent of the reparation to be made for the breach of an international obligation’ […] Nicaragua has thus accepted the ‘same obligation’, as the Permanent Court of International Justice stated in the case concerning the Factory at Chorzów: ‘Differences relating to reparations which may be due by reason of failure to apply a convention, are consequently differences relating to its application” (at ¶283).

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“The Court considers appropriate the request of Nicaragua for the nature and amount of the reparation due to it to be determined in a ­subsequent phase of the proceedings […] The opportunity should be afforded Nicaragua to demonstrate and prove exactly what injury was suffered as a result of each action of the United States which the Court has found contrary to international law” (at ¶284). The Court decided that “the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all; injury caused to Nicaragua by the breaches of obligations under customary international law [… and under] the Treaty of Friendship, Commerce and Navigation […] the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case” (at ¶292; holding).

1997

Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) The Court in the abstract referred to the “[p]rinciple concerning only the calculation of damages” (at 7; abstract). “It is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it” (at ¶152). “The Court has not been asked at this stage to determine the quantum of damages due, but to indicate on what basis they should be paid. Both Parties claimed to have suffered considerable financial losses and both claim pecuniary compensation for them […] Given the fact, however, that there have been intersecting wrongs by both Parties, the Court wishes to observe that the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counterclaims” (at ¶¶152–153).

2001

LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) The Court said that “[w]here jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation” (at ¶48).

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“Article 36 of the Vienna Convention imposes identical obligations on States, irrespective of the gravity of the offence a person may be charged with and of the penalties that may be imposed. However, it does not follow therefrom that the remedies for a violation of this Article must be identical in all situations. While an apology may be an appropriate remedy in some cases, it may in others be insufficient” (at ¶63). “The Court notes that the United States has acknowledged that, in the case of the LaGrand brothers, it did not comply with its obligations to give consular notification. The United States has presented an apology to Germany for this breach. The Court considers however that an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties” (at ¶123). “[A]n apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States” (at ¶125; see also at ¶128; holding) One of the remedies that the Court considered to be appropriate in this case were the assurances of non-repetition. “[T]he Court observes that it has been informed by the United States of the ‘substantial measures [which it is taking] aimed at preventing any recurrence’ of the breach of Article 36, paragraph 1 (b) […] the Court has taken note of the fact that the United States repeated in all phases of these proceedings that it is carrying out a vast and detailed programme in order to ensure compliance by its competent authorities at the federal as well as at the state and local levels with its obligation under Article 36 of the Vienna Convention […] The United States has provided the Court with information, which it considers important, on its programme. If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard […] The Court ­considers

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that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a general assurance of non-repetition” (at ¶¶121, 123–124, 128; holding).

2002

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3 (14 Feb.) “The Court has already concluded […] that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. Those acts engaged Belgium’s international responsibility. The Court considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo” (at ¶75). However, the Court also invoked the Court’s decision in Factory at Chorzów, declaring the general principle of restitutio in integrum. On this basis, the Court declared that Belgium must cancel its arrest warrant concerning Mr. Yerodia (at ¶76).

2002

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment, 2002 i.c.j. 303 (Oct.10) In this decision, the Court rejected Cameroon’s request for guarantees of non-repetition in the future. The Court noted that such request is admissible, but not applicable to the case at hand. It said that “[it] cannot envisage a situation where either Party, after withdrawing its military and police Forces and administration from the other’s territory, would fail to respect the territorial sovereignty of that Party” (at ¶318). The Court also noted that the finding of the present decision and the evacuation from the territory of the occupier address the injury ­suffered and the Court did not consider State responsibility further. “[T]he Court considers […] that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The

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Court will not therefore seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation” (at ¶319). 2003

Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) In this case, the Court found that it cannot uphold both the United States’ and Iran’s claims for reparation (at ¶125; holding). “The Court is therefore unable to uphold the submissions of Iran, that in carrying out those attacks the United States breached its obligations to Iran under Article x, paragraph 1, of the 1955 Treaty. In view of this conclusion, the Iranian claim for reparation cannot be upheld” (at ¶99). “The Court has thus found that the counter-claim of the United States concerning breach by Iran of its obligations to the United States under Article x, paragraph 1, of the 1955 Treaty, whether based on the specific incidents listed, or as a generic claim, must be rejected; there is therefore no need for it to consider, under this head, the contested issues of attribution of those incidents to Iran. In view of the foregoing, the United States claim for reparation cannot be upheld” (at ¶124).

2004

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) “The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory. The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the Court has on a number of occasions confirmed the existence of that obligation […] All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective, except in so far as such acts, by providing for compensation or other forms of reparation for the Palestinian population, may continue to be relevant for compliance by Israel with the obligations referred to in paragraph 153 below” (at ¶¶150–151). “The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction” (at ¶152).

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The Court also identified Israel’s obligation under the general principle of restitutio in integrum (at ¶152). In the holding, the Court said that “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem” (at ¶163; holding).

2005

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) In this case, the Court did not refer to reparation as a ‘principle’. It “observe[d] that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act” (at ¶259). The Court found that both Uganda and drc had an obligation to make reparation to each other for the injury caused (at ¶345; holding).

2007

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) The Court in this decision considered the general principle of reparation (at ¶¶460, 462). It also stated that “[s]ince the Court cannot therefore regard as proven a causal nexus between the Respondent’s violation of its obligation of prevention and the damage resulting from the genocide at Srebrenica, financial compensation is not the appropriate form of reparation for the breach of the obligation to prevent genocide” (at ¶462). “It is however clear that the Applicant is entitled to reparation in the form of satisfaction, and this may take the most appropriate form, as the Applicant itself suggested, of a declaration in the present Judgment that the Respondent has failed to comply with the obligation imposed by the Convention to prevent the crime of genocide. As in the Corfu Channel case, the Court considers that a declaration of this kind is ‘in itself appropriate satisfaction’ […] and it will, as in that case, include such a declaration in the operative clause of the present Judgment” (at ¶463). “The Court now turns to the question of the appropriate reparation for the breach by the Respondent of its obligation under the Convention

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to punish acts of genocide […] and the Court has found that in that respect the Respondent is indeed in breach of Article vi of the Convention […] A declaration to that effect is therefore one appropriate form of satisfaction, in the same way as in relation to the breach of the ­obligation to prevent genocide […] The Court will therefore make a declaration in these terms in the operative clause of the present ­Judgment, which will in its view constitute appropriate satisfaction” (at ¶¶464–465). “The Court however considers that, for purposes of reparation, the Respondent’s non-compliance with the provisional measures ordered is an aspect of, or merges with, its breaches of the substantive obligations of prevention and punishment laid upon it by the Convention. The Court does not therefore find it appropriate to give effect to the Applicant’s request for an order for symbolic compensation in this respect. The Court will however include in the operative clause of the present Judgment, by way of satisfaction, a declaration that the Respondent has failed to comply with the Court’s Orders indicating provisional measures” (at ¶469). In the holding, the Court decided that “as regards the breaches by Serbia of the obligations referred to in subparagraphs (5) and (7) above, the Court’s findings in those paragraphs constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to in subparagraph (5), a direction to provide assurances and guarantees of nonrepetition, would be appropriate” (at ¶471; holding). The Court in this case considered that assurances of non-repetition would not be appropriate. “[T]he Court considers that the declaration referred to in paragraph 465 above is sufficient as regards the Respondent’s continuing duty of punishment, and therefore does not consider that this is a case in which a direction for guarantees of non-repetition would be appropriate” (at ¶466).

2008

Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) “The Court has found a violation by France of its obligation under Article 17 of the 1986 Convention. As regards possible remedies for such

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a violation, the Court will not order the publication of the reasons ­underlying the decision […] The Court determines that its finding that France has violated its obligation to Djibouti under Article 17 constitutes appropriate satisfaction” (at ¶¶203–204). In the holding, the Court stated that France “failed to comply with its international obligation under Article 17 of the Convention on Mutual Assistance in Criminal Matters between the two Parties, signed in Djibouti on 27 September 1986, and that its finding of this violation constitutes appropriate satisfaction” (at ¶205; holding).

2009

2010

2010

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213 (13 July) In this case, the Court noted that “while [it] may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the injured State with assurances and guarantees of non-­ repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess” (at ¶150). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) In this case, the Court did not consider “reparation based on a régime of responsibility in the absence of any wrongful act” (at ¶272). Out of the forms of reparation for injury, the Court discusses restitution (at ¶¶273–274). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639 (30 Nov.) “In the light of the circumstances of the case, in particular the fundamental character of the human rights obligations breached and Guinea’s claim for reparation in the form of compensation, the Court is of the opinion that, in addition to a judicial finding of the violations, reparation due to Guinea for the injury suffered by Mr. Diallo must take the form of compensation” (at ¶161). In its holding, the Court found that drc was “under obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of international obligations” (at ¶165; holding).

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Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) In this case, the Court considered the ‘relationship between duty of reparation and State immunity’ (at 100; abstract). “There is no doubt that the violation by Italy of certain of its international legal obligations entails its international responsibility and places upon it, by virtue of general international law, an obligation to make full reparation for the injury caused by the wrongful acts committed. The substance, in the present case, of that obligation to make reparation will be considered below” (at ¶136). “[T]he Court does not consider it necessary to include an express declaration in the operative clause that Italy’s international responsibility is engaged; to do so would be entirely redundant, since that responsibility is automatically inferred from the finding that certain obligations have been violated” (at ¶136). The Court also considered the question of restitutio in integrum (at ¶137) and assurances and guarantees of non-repetition. In relation to the latter, the Court noted that “[it] may order the State responsible for an internationally wrongful act to offer assurances of non-repetition to the injured State, or to take specific measures to ensure that the wrongful act is not repeated, it may only do so when there are special circumstances which justify this, which the Court must assess on a case-by-case basis” (at ¶138).

2012

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324 (19 June) “The Court turns to the question of compensation for the violations of Mr. Diallo’s human rights established in its Judgment of 30 November 2010. It recalls that it has fixed an amount of compensation once, in the Corfu Channel case […] In the present case, Guinea is exercising diplomatic protection with respect to one of its nationals, Mr. Diallo, and is seeking compensation for the injury caused to him. As the Permanent Court of International Justice stated in the Factory of Chorzów case […] ‘[i]t is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law’” (at ¶13).

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“The Court has taken into account the practice in other international courts, tribunals and commissions (such as the International Tribunal for the Law of the Sea, the European Court of Human Rights (echr), the Inter-American Court of Human Rights (iachr), the Iran-United States Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and the United Nations Compensation Commission), which have applied general principles governing compensation when fixing its amount, including in respect of injury resulting from unlawful detention and expulsion” (at ¶13). The Court in this case also considered for the first time – and ­awarded – compensation for non-material injury. The Court said that “[t]he assessment of compensation owed to Guinea in this case will require the Court to weigh the Parties’ factual contentions […] The Court’s inquiry will be limited to the injury resulting from the breach of Mr. Diallo’s rights as an individual, that is, ‘the injury flowing from the wrongful detentions and expulsion of Mr. Diallo in 1995–1996, including the resulting loss of his personal belongings’” (at ¶¶15, 17). “‘Mental and moral damage’, referred to by Guinea, or ‘non-pecuniary injury’, referred to by the drc, covers harm other than material injury which is suffered by an injured entity or individual. Non-material injury to a person which is cognizable under international law may take various forms. For instance, the umpire in the Lusitania cases before the Mixed Claims Commission (United States/Germany) mentioned ‘mental suffering, injury to [a claimant’s] feelings, humiliation, shame, degradation, loss of social position or injury to his credit or to his reputation’ […] The Inter-American Court of Human Rights observed in Gutiérrez-Soler v. Colombia that ‘[n]on pecuniary damage may include distress, suffering, tampering with the victim’s core values, and changes of a non-pecuniary nature in the person’s everyday life’” (at ¶18). The Court “[f]ixe[d] the amount of compensation due from the ­Democratic Republic of the Congo to the Republic of Guinea for the ­non-material injury suffered by Mr. Diallo at US$85,000” (at ¶61; holding).

2018

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Compensation [2018] i.c.j. (2 Feb.) In this case, the Court was guided by the ‘legal principles applicable to determination of compensation’ and it noted the ‘obligation to make full reparation’ (at 1; abstract).

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“Before turning to the consideration of the issue of compensation due in the present case, the Court will recall some of the principles relevant to its determination. It is a well-established principle of international law that ‘the breach of an engagement involves an obligation to make reparation in an adequate form’ […] The obligation to make full reparation for the damage caused by a wrongful act has been recognized by the Court in other cases” (at ¶¶29–30). “The Court has held that compensation may be an appropriate form of reparation, particular in those cases where restitution is materially impossible or unduly burdensome […] Compensation should not, however, have a punitive or exemplary character” (at ¶31). “In respect of the valuation of damage, the Court recalls that the absence of adequate evidence as to the extent of material damage will not, in all situations, preclude an award of compensation for that damage” (at ¶35). “The Court has not previously adjudicated a claim for compensation for environmental damage. However, it is consistent with the principles of international law governing the consequences of internationally wrongful acts, including the principle of full reparation, to hold that compensation is due for damage caused to the environment, in and of itself, in addition to expenses incurred by an injured State as a consequence of such damage” (at ¶41). “The Court is therefore of the view that damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law. Such compensation may include indemnification for the impairment or loss of environmental goods and services in the period prior to recovery and payment for the restoration of the damaged environment” (at ¶42). “Wherever certain elements of either method offer a reasonable basis for valuation, the Court will nonetheless take them into account. This approach is dictated by two factors: first, international law does not prescribe any specific method of valuation for the purposes of compensation for environmental damage; secondly, it is necessary, in

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the view of the Court, to take into account the specific circumstances and characteristics of each case” (at ¶52). “Before assigning a monetary value to the damage to the environmental goods and services caused by Nicaragua’s wrongful activities, the Court will determine the existence and extent of such damage, and whether there exists a direct and certain causal link between such damage and Nicaragua’s activities. It will then establish the compensation due” (at ¶72). “The Court considers […] that it is appropriate to approach the valuation of environmental damage from the perspective of the ecosystem as a whole, by adopting an overall assessment of the impairment or loss of environmental goods and services prior to recovery, rather than attributing values to specific categories of environmental goods and services and estimating recovery periods for each of them” (at ¶78). “The Court recalls, as outlined in paragraph 35 above, that the absence of certainty as to the extent of damage does not necessarily preclude it from awarding an amount that it considers approximately to reflect the value of the impairment or loss of environmental goods and services” (at ¶86). “On the basis of the principles described above […] the Court must determine whether the costs and expenses allegedly incurred by Costa Rica are supported by the evidence, and whether Costa Rica has established a sufficiently direct and certain causal nexus between the internationally wrongful conduct of Nicaragua identified by the Court in its 2015 Judgment and the heads of expenses for which Costa Rica seeks compensation” (at ¶89). In this case the Court also considered the question of pre-judgment interests. It “recall[ed] that in the practice of international courts and tribunals, pre-judgment interest may be awarded if full reparation for injury caused by an internationally wrongful act so requires. Nevertheless, interest is not an autonomous form of reparation, nor is it a necessary part of compensation in every case” (at ¶151). “­ The Court observes that, in the present case, the compensation to be awarded to Costa Rica is divided into two parts: compensation for

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environmental damage and compensation for costs and expenses incurred by Costa Rica in connection with Nicaragua’s unlawful activities. The Court considers that Costa Rica is not entitled to ­pre-judgment interest on the amount of compensation for environmental damage; in determining the overall valuation of environmental damage, the Court has taken full account of the impairment or loss of environmental goods and services in the period prior to recovery” (at ¶152). “[T]he Court decides that, in the event of any delay in payment, postjudgment interest shall accrue on the total amount of compensation. This interest shall be paid at an annual rate of 6 per cent” (at ¶155). 42

General principle of restitutio in integrum Type: Substantive Underpinning: Judicial Recurrence: 1 pcij and 7 icj decisions

Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17 (13 Sept.) 1928 The Court in this case identified a new general principle when considering the principles of reparation. The Court said that “[t]he essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (at 47). “Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law” (at 47). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3 (24 May) 1980 In this case, the Court ordered restitution in the form of immediate termination of the unlawful detention, placing in the hands of the protecting power the premises, property, archives and documents of the United States Embassy in Tehran (at ¶95; holding).

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Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3 (14 Feb.) 2002 “In the present case, ‘the situation which would, in all probability, have existed if [the illegal act] had not been committed’ cannot be ­re-established merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated. The Court sees no need for any further remedy” (at ¶¶76–77, 78; holding). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) 2004 “[G]iven that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned. The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms: ‘The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law’” (at ¶152). “Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered” (at ¶153).

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 The Court referred to this notion as a “principle of customary international law” (at ¶462). “The principle governing the determination of reparation for an internationally wrongful act is as stated by the Permanent Court of International Justice in the Factory at Chorzów case: that ‘reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’ […] Insofar as restitution is not possible, as the Court stated in the case of the Gabčíkovo-Nagymaros Project […] ‘[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it’” (at ¶460). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 i.c.j. 14 (Apr.20) 2010 “The Court recalls that customary international law provides for restitution as one form of reparation for injury, restitution being the ­re-establishment of the situation which existed before occurrence of the wrongful act. The Court further recalls that, where restitution is materially impossible or involves a burden out of all proportion to the benefit deriving from it, reparation takes the form of compensation or satisfaction, or even both” (at ¶273). “Like other forms of reparation, restitution must be appropriate to the injury suffered, taking into account the nature of the wrongful act having caused it” (at ¶274). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639 (30 Nov.) 2010 “The Court recalls that ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’ […] Where this is not possible, reparation may take ‘the form of compensation or satisfaction, or even both’ […] In the light of the

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c­ ircumstances of the case, in particular the fundamental character of the human rights obligations breached and Guinea’s claim for reparation in the form of compensation, the Court is of the opinion that, in addition to a judicial finding of the violations, reparation due to Guinea for the injury suffered by Mr. Diallo must take the form of compensation” (at ¶161). Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 “[E]ven if the act in question has ended, the State responsible is under an obligation to re-establish, by way of reparation, the situation which existed before the wrongful act was committed, provided that ­re-establishment is not materially impossible and that it does not involve a burden for that State out of all proportion to the benefit deriving from restitution instead of compensation. This rule is reflected in Article 35 of the International Law Commission’s Articles […] The decisions and measures infringing Germany’s jurisdictional immunities which are still in force must cease to have effect, and the effects which have ­already been produced by those decisions and measures must be reversed, in such a way that the situation which existed before the wrongful acts were committed is re-established” (at ¶¶137, 139; holding). “It has not been alleged or demonstrated that restitution would be materially impossible in this case, or that it would involve a burden for Italy out of all proportion to the benefit deriving from it. In particular, the fact that some of the violations may have been committed by judicial organs, and some of the legal decisions in question have become final in Italian domestic law, does not lift the obligation incumbent upon Italy to make restitution. On the other hand, the Respondent has the right to choose the means it considers best suited to achieve the required result. Thus, the Respondent is under an obligation to achieve this result by enacting appropriate legislation or by resorting to other methods of its choosing having the same effect” (at ¶137). 43

General principle of lump sum payments Type: Substantive Underpinning: International Recurrence: none

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Digest of General Principles

Pajzs‚ Czáky‚ Esterházy, Judgment [1936] p.c.i.j. (ser.A/B) No. 68 (16 Dec.) 1936 The Court mentioned this general principle, as referred to in the Paris Agreements. It did not agree with Hungary’s narrow interpretation. “If the scope of the Paris Agreements is restricted in the manner contended by the Hungarian Government, the Agreements would scarcely appear to give effect to the principle of lump-sum payments which they were intended to establish” (at 59). h 44

1966

Individuals, Peoples and International Organisations General principle that rights cannot be derived from the mere fact of membership of the organization in itself Type: Substantive Underpinning: Judicial Recurrence: none South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6 (18 July) The Court said that “rights cannot be derived from the mere fact of membership of the organization in itself: the rights that member States can legitimately claim must be derived from and depend on the particular terms of the instrument constitutive of the organization, and of the other instruments relevant in the context. This principle is necessarily applicable as regards the question of what rights member States can claim in respect of a régime such as results from the mandates sys­ tem, functioning within the framework of the organization” (at ¶25). In this case, the Court applied this general principle by noting that participation in the activities of the organs “did not give rise to any right of direct intervention relative to the mandatories: this was, and remained, the prerogative of the League organs” (at ¶25).

45

General principle of self-determination of peoples Type: Substantive Underpinning: International, Judicial Recurrence: 6 icj decisions

Digest of General Principles

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Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 The Court noted that “the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of ­self-determination applicable to all of them” (at 31). Western Sahara, Advisory Opinion [1975] i.c.j. 12 (16 Oct.) 1975 The Court pointed out that the general principle of self-determination is included in Article 1(2) of the United Nations Charter (at ¶54). In this advisory opinion it noted that Morocco “accepted the application of the principle of self-determination” (at ¶36). The Court additionally noted that “[t]he principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end, were enunciated in the ­Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (xv) [… which] confirm and emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned” (at ¶55). The Court defined this principle as “the need to pay regard to the freely expressed will of peoples” and said that its validity “is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory” (at ¶59). “The right of self-determination leaves the General Assembly a measure of discretion with respect to the forms and procedures by which that right is to be realized” (at ¶71). “[T]he decolonization process to be accelerated which is envisaged by the General Assembly in this provision is one which will respect the right of the population of Western Sahara to determine their future political status by their own freely expressed will […] The right of that population to self-determination constitutes therefore a basic

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a­ ssumption of the questions put to the Court” (at ¶70). The Court also said that “the right of the population of Western Sahara to self-­ determinationis not prejudiced or affected by the present request for an advisory opinion, nor by any other provision contained in that ­resolution” (at ¶161). “[T]he ultimate objective of the sacred trust was the ­self-determination and independence of the peoples concerned. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore” (at ¶56). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) 1986 The Court observed that in this case the general principle of ­self-determination prima facie conflicted with that of uti possidetis. The Court concluded that these two general principles are mutually reinforcing, by stating that “[i]n fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the ­continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples” (at ¶25). East Timor (Port. v. Austl.), Judgment [1995] i.c.j. 90 (30 June) 1995 The Court noted that this general principle is applicable erga omnes. “‘In the Court’s view, Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court […] it is one of the essential principles of contemporary international law” (at ¶29). The Court confirmed, despite finding that it does not have jurisdiction, that “the Territory of East Timor remains a non-self-governing territory and its people has the right to self-determination” (at ¶37).

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) 2004 In addition to referring to the United Nations Charter and General ­Assembly resolution 2625 (xxv), the Court also referred to common Article i of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which “lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter” (at ¶88). The Court confirmed that this general principle has often been referred to in its jurisprudence and that it “is today a right erga omnes” (at ¶88). “As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a ‘Palestinian people’ is no longer in issue” (at ¶118). “It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end” (at ¶159). Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403 (22 July) 2010 “During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation […] A great many new States have come into existence as a result of the exercise of this right” (at ¶79). “The Court has already noted […] that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination” (at ¶82). The Court in this advisory opinion considered the general principle of self-determination because it “concern[s] the right to separate from a State” (at ¶83).

442 46

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General principle of humanity Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) The Court considered that the ‘elementary considerations of humanity’ is one among the general principles that provided the basis of international obligations (at 22). “Such obligations are based, not on the Hague Convention of 1907, No. viii, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of ­humanity” (at 22).

1996

2004

47

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) The Court mentioned ‘elementary considerations of humanity’ only in passim. “It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’” (at ¶79). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) The Court considered international rules that “are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ [as …] essentially of an erga omnes character” (at ¶157). General principle that the well-being and development of peoples not yet able to assume a full measure of self-government form a ‘sacred trust of civilization’ Type: Substantive Underpinning: International Recurrence: 3 icj decisions

International Status of South West Africa, Advisory Opinion [1950] i.c.j. 128 (11 July) 1950 The Court said that the purpose of this general principle was to promote the “material and moral well-being and the social progress of the inhabitants” and that it carried obligations related to “slave trade,

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forced labour, traffic in arms and ammunition, intoxicating spirits and beverages, military training and establishments, […] freedom of conscience and free exercise of worship, including special obligations with regard to missionaries” (at 133). “These obligations represent the very essence of the sacred trust of civilization” (ibid.). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 In referring to its 1950 advisory opinion, the Court explained the word ‘trust’. “It is self-evident that the ‘trust’ had to be exercised for the benefit of the peoples concerned, who were admitted to have interests of their own and to possess a potentiality for independent existence on the ­attainment of a certain stage of development: the mandates system was designed to provide peoples ‘not yet’ able to manage their own ­affairs with the help and guidance necessary to enable them to arrive at the stage where they would be ‘able to stand by themselves’” (at ¶46). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) 2004 The Court observed that Mandates, in general, were created “as an international institution with an international object – a sacred trust of civilization” (at ¶70). In referring to the International Status of South West Africa, the Court said that its 1950 advisory opinion considered two principle that were of paramount importance – one of them being “the principle that the well-being and development of […] peoples [not yet able to govern themselves] form[ed] a ‘sacred trust of civilization’” (ibid.). 48

General principle of speciality Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66 (8 July) 1996 “International organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them

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with powers, the limits of which are a function of the common interests whose promotion those States entrust to them” (at ¶25). The Court said that “to ascribe to the who the competence to address the legality of the use of nuclear weapons – even in view of their health and environmental effects – would be tantamount to disregarding the principle of speciality” (at ¶25). This general principle determined the interpretation of the who Constitution. “It follows from the various instruments mentioned above that the who Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter” (at ¶26). The Court also noted that it had referred to this ‘basic principle’ in Jurisdiction of the European Commission of the Danube “in the following terms: ‘As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full ­extent, in so far as the Statute does not impose restrictions upon it’” (at ¶25). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) 2010 The Court in this case noted that the general principle of speciality “also applies […] to organizations, which like caru, only have two member States” (at ¶89). 49

General principle of implied powers Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

Reparation for Injuries Suffered in the Service of the United Nations, ­Advisory Opinion [1949] i.c.j. 174 (11 Apr.). 1949 “Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the

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­ ermanent Court of International Justice to the International Labour P Organization in its Advisory Opinion No. 13 […] and must be applied to the United Nations” (at 182–183). Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66 (8 July) 1996 “The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as ‘implied’ powers” (at ¶25). 50

General principle of equal rights of members to the functioning of the League of Nations Type: Substantive Underpinning: Judicial, International Recurrence: none

Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12 (21 Nov.) 1925 The Court considered this to be an ‘essential’ general principle (at 32). “There is nothing to justify a further derogation from the essential ­principles of unanimity and of the equal rights of Members” (Ibid.). 51

General principle of unanimity Type: Substantive Underpinning: International Recurrence: appearing in 1 pcij and 1 icj decision

Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12 (21 Nov.) 1925 The Court noted that this general principle was also embodied in ­Article 5(1) of the Covenant of the League of Nations (at 12) and that this general principle is ‘essential’ (at 32). It referred to it as a ‘rule’

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(at 30). “There is nothing to justify a further derogation from the essential principles of unanimity and of the equal rights of Members” (at 32). The Court said that this general principle provides that “decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting” (at 30). This general principle was meant as a “safeguard with which, in the Covenant, it was felt necessary to surround the Council’s decisions” (ibid.). In this case, the Court applied a more specialised version of this principle, provided for in Article 15(6) and (7) of the Covenant of the League of Nations, namely, the general principle that the Council’s unanimous report need only be agreed to by the Members of the Council other than the representatives of the Parties (at 31–32). “The principle laid down by the Covenant in paragraphs 6 and 7 of Article 15, seems to meet the requirements of a case such as that now before the Council, just as well as the circumstances contemplated in that article” (at 32). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 The Court said that this general principle was applied at the time of the League of Nations and “that in this case revocation could only take place with the concurrence of the Mandatory” (at 49). 52

General principle of majority Type: Substantive Underpinning: Judicial Recurrence: appearing in 1 pcij and 1 icj decision

Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12 (21 Nov.) 1925 “In support of the contention that the decision may be taken by a majority, the principle generally accepted in the case of arbitral tribunals, in accordance with which such tribunals, as a rule, decide by a ­majority, has also been invoked; and it has been argued that the main reason for

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the application of this principle is that it would often prove impossible to obtain any decision if unanimity were required” (at 31). Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15 (28 May) 1951 The Court referred to this general principle as “facilitating the conclusion of multilateral conventions, may also make it necessary of certain states to make reservations. This observation is confirmed by the great number of reservations which have been made or recent years to multilateral conventions” (at 22). 53

General principle that the rights of member States must be derived from and depend on the particular terms of the instrument constitutive of the organisation, and of the other instruments relevant in the context Type: Substantive Underpinning: Judicial Recurrence: none

South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6 (18 July). 1966 “[T]he rights that member States can legitimately claim must be derived from and depend on the particular terms of the instrument constitutive of the organization, and of the other instruments relevant in the context. This principle is necessarily applicable as regards the question of what rights member States can claim in respect of a régime such as results from the mandates system, functioning within the framework of the organization” (at ¶25). 54

General principle with regard to recourse to tribunals accessible to private persons Type: Substantive Underpinning: International, Judicial Recurrence: none

Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9 (26 July) 1927 “The Court feels that it must consider this point, not only because Counsel for Poland have cited the general principle with regard to

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r­ ecourse to tribunals accessible to private persons, but also and more especially in relation to the terms of Article 23, paragraph 2, of the Geneva Convention” (at 25). 55

General principle of respect for vested rights | General principle of acquired rights Type: Substantive Underpinning: International Recurrence: 4 pcij decisions and 1 icj decision

Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7 (25 May). 1926 The Court identified this general principle as embodied in Head ii of the Geneva Convention. This general principle protected the investors from unlawful expropriation (at 33). “If Poland wishes to dispute the validity of this entry, it can, in any case, only be annulled in pursuance of a decision given by the competent tribunal; this follows from the principle of respect for vested rights, a principle which, as the Court has already had occasion to observe, forms part of generally accepted international law, which, as regards this point, amongst others, constitutes the basis of the Geneva Convention” (at 42). The Geneva Convention also provided for the exception to this general principle, namely, the right to expropriate, in Head iii of the Convention. “Head iii only refers to Polish Upper Silesia and establishes in favour of Poland a right of expropriation which constitutes an ­exception to the general principle of respect for vested rights” (at 21). “[T]he ­expropriation allowed under Head iii of the Convention is a derogation from the rules generally applied in regard to the treatment of ­foreigners and the principle of respect for vested rights” (at 22; see also at 33). Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9 (26 July) 1927 The Court identified this general principle as embodied in Head ii of the Geneva Convention (at 28).

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Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) 1934 The Court considered the general principle of respect for vested rights as part of general international law (at 65; abstract). The Court said that when enterprises are “exposed to the danger of ruin or extinction if circumstances change […] no vested rights are violated by the State” (at 88). “It is true that in 1932 the Belgian Government decided to grant Belgian or foreign ship-owners, whose business was endangered, advances similar to those allowed to the Unatra Company; the taking of this measure cannot, however, be regarded in itself as an admission by the Belgian Government of a legal obligation to indemnify the transporters for an encroachment on their vested rights; it is rather to be ascribed to the desire of every government to show consideration for different business interests, and to offer them some compensation, when possible” (at 88). Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74 (14 June) 1938 The Court considered the general principle of respect for vested rights as part of the general international law. “In its Application, the Italian Government has represented the decision of the Department of Mines as an unlawful international act, because that decision was inspired by the will to get rid of the foreign holding and because it therefore constituted a violation of the vested rights placed under the protection of the international conventions. That being so, it is in this decision that we should look for the violation of international law – a definitive act which would, by itself, directly involve international responsibility” (at 28). “[T]he complaint of a denial of justice cannot be separated from the criticism which the Italian Government directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged

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to have been refused judicial protection. But the Court could not reach such a conclusion without calling in question the decision of the ­Department of Mines of 1925. It follows that an examination of the justice of this complaint could not be undertaken without extending the Court’s jurisdiction to a fact which, by reason of its date, is not subject thereto” (at 28–29). Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325 (20 July) 1982 In this opinion, the Court noted the general principle of acquired rights as determined by the United Nations administrative tribunal, and as incorporated in the Staff Regulation. “[T]he General Assembly, in Staff Regulation 12.1, had affirmed the ‘fundamental principle of respect for acquired rights’ and that Staff Rule 112.2 (a) provided for amendment of Staff Rules only in a manner consistent with the Regulations (para. iv). It decided that Mr. Mortished had indeed an acquired right, in the sense of Regulation 12.1; and that he had therefore suffered injury by being, as a result of resolution 34/165 and the resulting 1979 Administrative Instruction (st/ai/269) and the 1980 amendment of the Staff Rules, deprived of his entitlement” (at ¶73). 56

General principle of equality | General principle of equal treatment Type: Substantive Underpinning: International Recurrence: 6 pcij and 2 icj decisions

Settlers of German Origin in Poland, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 6 (10 Sept.) 1923 In this case, the Court referred to the general principle of equality. “The action taken by the Polish authorities […] is undoubtedly a virtual annulment of the rights which the settlers acquired under their ­contracts and therefore an infraction of the obligation concerning their civil rights. It is contrary to the principle of equality in that it subjects the settlers to a discriminating and injurious treatment to which other citizens holding contracts of sale or lease are not subject” (at 36–37). “A similar disproportion [between the value of the estate and the depreciation of the rent] has taken place in numerous other cases more

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or less similar, and it would be incompatible with the principle of equality to treat such disproportion as invalidating the contract only in the case of the Rentengutsvertrage” (at 39). The Court defined “legal equality in the sense of the absence of discrimination in the words of the law” (at 24). Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7 (25 May) 1926 In this case, the Court did not identify any particular ‘principle’ but only stated that “[the] treatment accorded to German private property, rights and interests in Polish Upper Silesia is to be the treatment recognized by the generally accepted principles of international law” (at 21). Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14 (8 Dec.) 1927 “Here the second principle already established by the Treaty of Paris, and once more enunciated by the Definitive Statute, namely the equal treatment of all flags, comes into play” (at 67). “[T]his régime, which is defined by Article 20 of the Statute, is simply the application of the principle of freedom of navigation and of equal treatment of all flags, which has been recognized for the Danube since 1856 […] it rests with the European Commission to assure this freedom and equality upon the maritime Danube, that organization must necessarily have power to intervene, should the territorial authorities adopt measures contrary to these principles” (at 67). “The Definitive Statute, in conformity with the principles already established by the Treaty of Paris of 1856, declares, in Article 3, that navigation is to be free and that all flags are to receive equal treatment” (at 64). Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15 (26 Apr.) 1928 The Court considered the ‘right’ of equal treatment, which was embodied in Article 68 of the German-Polish Convention of May 15th, 1922, concerning Upper Silesia (at 42). “The Court considers that a generally hostile attitude on the part of the authorities in regard to minority schools, an attitude manifested by

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Digest of General Principles

more or less arbitrary action, is not compatible with the principle laid down in Article 68” (at 45). Article 68 provided that Polish and German nationals that belong to minorities “shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein” (at 42, footnote 1). Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) 1934 “[T]he principle of equal treatment is the characteristic feature of the legal régime established in the Congo Basin. The Convention of SaintGermain applies this principle in most of its articles […] this equality of treatment is only guaranteed by the Convention to the nationals of Powers which are parties to the Convention or of Powers adhering to it” (at 86). “The inequality of treatment could only have amounted to a discrimination forbidden by the Convention if it had applied to concerns in the same position as Unatra, and this was not the case” (at 87). Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64 (6 Apr.) 1935 In this decision, the Court referred to the “principle of identical treatment in law and in fact” (at 19), to “principle of equality of treatment” (at 20) and to the principle of the ‘same treatment’ as established in Article 68 of the Geneva Convention (at 43). The Court considered equality between the majority and minority groups in the same country (at 15). “The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State” (at 17). The Court compared equality in law and equality in fact, by saying that “[i]t is perhaps not easy to define the distinction between the notions of equality in fact and equality in law; nevertheless, it may be said that the former notion excludes the idea of a merely formal equality […] Equality in law precludes discrimination of any kind; whereas

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equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations” (at 19). “[T]he equality of all Albanian nationals before the law has already been stipulated in the widest terms in Article 4” (at 18). “The abolition of these institutions, which alone can satisfy the special requirements of the minority groups, and their replacement by government institutions, would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the State” (at 20). The Court said that “[t]he right provided by the Declaration is in fact the minimum necessary to guarantee effective and genuine equality as between the majority and the minority; but if the members of the majority should be granted a right more extensive than that which is provided, the principle of equality of treatment would come into play and would require that the more extensive right should also be granted to the members of the minority” (at 20). “[A]rticle [69] clearly shows that it is perfectly compatible with the principle of the ‘same treatment’ guaranteed by Article 68, to restrict the enjoyment of these ‘facilities’ to children whose language is the minority language. And if, to ensure the observance of this rule, a declaration as to the language of the child is required, that also cannot be regarded as a violation of the principle of the ‘same treatment’ established by Article 68” (at 43). Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) 1985 The Court mentions briefly the “principle that although all States are equal before the law and are entitled to equal treatment, ‘equity does not necessarily imply equality’” (at ¶46). Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045 (13 Dec.) 1999 The Court said that “the nationals of Namibia, and vessels flying its flag, are entitled to, and shall enjoy, a treatment equal to that accorded by Botswana to its own nationals and to vessels flying its own flag. ­Nationals of the two States, and vessels, whether flying the flag of

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­ otswana or of Namibia, shall be subject to the same conditions as reB gards navigation and environmental protection. ln the northern channel, each Party shall likewise accord the nationals of, and vessels flying the flag of, the other, equal national treatment” (at ¶103). The Court concluded in its holding that “in the two channels around Kasikili/Sedudu Island, the nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic of Namibia shall enjoy equal national treatment” (at ¶104; holding). i 57

2012

58

International Maritime and River Law General principles of maritime delimitation Type: Substantive Underpinning: International Recurrence: none Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.). “The Court has recognized that the principles of maritime delimitation enshrined in Articles 74 and 83 reflect customary international law” (at ¶139). General principle of freedom of the seas Type: Substantive Underpinning: Judicial Recurrence: none

“Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10 (7 Sept.). 1927 The general principle of the freedom of the seas is the “absence of any territorial sovereignty upon the high seas, and no State may exercise any kind of jurisdiction over foreign vessels upon them” (at 25). “[B]y virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory, but there is nothing to support the claim according to which the rights of the State under whose flag the vessel may go farther than rights which it exercises within its territory properly so called” (ibid.). The Court also found two corollaries to this general principle, namely, that “a ship on the high seas is assimilated to the territory of the State the flag of which it flies, for […] the State exercises its authority upon it [as it would be its territory], and no other State may do so” and the

Digest of General Principles

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general principle of the exclusive jurisdiction of the State whose flag is flown by merchant ships on the high seas (at 24–25). The Court relied on the general principle of freedom of the seas because France has not shown the existence of a customary international rule that would provide otherwise (at 25). 59

General principle that in the case of the delimitation of the continental shelf, delimitation must be the object of agreement between the States concerned Type: Substantive Underpinning: Judicial Recurrence: 3 pcij and 2 icj decisions

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) 1969 The Court referred to the “principle […] that delimitation must be the object of agreement between the States concerned” (at ¶85). Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192 (10 Dec.) 1985 The Court, by referring to the North Sea Continental Shelf, noted that “[i]n the special case of continental shelf delimitation, one of the underlying principles is that ‘delimitation must be the object of agreement between the States concerned’” (at ¶48). 60

General principle of freedom of navigation Type: Substantive Underpinning: International Recurrence: 5 icj decisions

Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14 (8 Dec.) 1927 The general principle of freedom of navigation on rivers provides that “the navigation of such rivers along their whole course, from the point where each of them became navigable to its mouth, should be entirely free and should not, in respect of commerce, be prohibited to any one, subject to uniform regulations of police” (at 38). The Court said that “the principle that the freedom of navigation upon a river must include as far as the zone to be reached” (at 57). The Court

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added that “freedom of navigation […] covers not only shipping passing through a sector of the river corresponding to a port, but also shipping arriving in or leaving the port” (at 65). “[F]reedom of navigation is incomplete unless shipping can actually reach the ports under the same conditions” (ibid.). This interpretation as in accordance with the “instruments relating to the maritime Danube” (ibid.). The Court equated navigation with “any movement of vessel forming part of their voyage” (at 65). Freedom of navigation in relation to the competencies of the European Commission meant “free movement of vessels on the maritime Danube” and non-interruption of its jurisdiction by port sectors exclusively subject to the territorial authorities (at 62). Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23 (10 Sept.) 1929 The Court in this case considered “what position as adopted by the Treaty of Versailles in regards to these principles [governing international fluvial law in general]. It may well be admitted […] that the desire to provide the upstream States with the possibility of free access to the sea played a considerable part in the formation of the principle of freedom of navigation on so-called international rivers” (at 26). The Court related international river law with the 1815 Act of Congress of Vienna (at 27) and Article 332 of the Treaty of Versailles, which “grants freedom of navigation on waterways declared international in the ­previous article to all Powers on a footing of perfect equality” (at 28). The Court noted that Article 331 of the Treaty of Versailles together with the interest of all States in liberty of navigation in both directions “entirely corresponds with the principles of international fluvial law” (at 28–29). “Article 331 must therefore be interpreted in the light of these principles, which leave no doubt that the internationalization of a waterway traversing or separating different States does not stop short at the last political frontier, but extends to the whole navigable river” (at 29). Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) 1934 In this case, the Court interpreted freedom of navigation in the context of the Treaty of Saint Germain, alongside the general principle of ­freedom of trade. The Court said that “[a]ccording to the conception universally accepted, the freedom of navigation referred to by the

Digest of General Principles

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­ onvention comprises freedom of movement for vessels, freedom to C enter ports, and to make use of plant and docks, to load and unload goods and to transport goods and passengers” (at 83). “From this point of view, freedom of navigation implies, as far as the business side of maritime or fluvial transport is concerned, freedom of commerce also. But it does not follow that in all other respects ­freedom of navigation entails and presupposes freedom of commerce” (at 83). “For this reason the Court – whilst recognizing that freedom of navigation and freedom of commerce are, in principle, separate c­ onceptions – considers that it is not necessary, for the purposes of the present case, to examine them separately” (at 83). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) 1984 “Principles such as […] freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated” (at ¶73). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court noted that the United Nation Convention on the Law of the Sea guarantees that “freedom of navigation is guaranteed, first in the exclusive economic zones which may exist beyond territorial waters (Art. 58 of the Convention), and secondly, beyond territorial ­waters and on the high seas (Art. 87), [and] it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. It may therefore be said that, if this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships” (at ¶214). Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) 2003 Considering the “[c]ontention that jurisdiction of the Court does not extend to freedom of navigation” (at 163; abstract). The considered

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freedom of navigation, without referring to it as to a ‘principle’, as part of the 1955 Treaty of Friendship Commerce and Navigation. “Article x, paragraph 1, envisages both freedoms, freedom of commerce and freedom of navigation […] As regards the claim of Iran, it is true that the Court has found that only freedom of commerce is ­in issue […] However, the Court also concluded in 1998 that it had ­jurisdiction to entertain the United States counter-claim in so far as the facts alleged may have prejudiced the freedoms (in the plural) guaranteed by Article x, paragraph 1, of the 1955 Treaty, i.e., freedom of commerce and freedom of navigation” (at ¶115). Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213 (13 July) 2009 The Court considered the ‘right of free navigation’ as part of Article vi of the 1858 Treaty of Limits (at ¶48). “[T]he Court is not convinced by Nicaragua’s argument that Costa Rica’s right of free navigation should be interpreted narrowly because it represents a limitation of the sovereignty over the river conferred by the Treaty on Nicaragua, that being the most important principle set forth by Article vi” (at ¶48). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 i.c.j. 665 (Dec.16) 2015 The Court (again) refers to the ‘right’ of navigation, as provided for in the Article vi of the 1858 Treaty of Limits (at ¶136). 61

1997

General principle of non-navigational uses of international watercourses Type: Substantive Underpinning: International Recurrence: none Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) The Court said that the Parties agreed to follow, among others, “the principles of the law of international watercourses” (at ¶141). The Court did not elaborate on its content, but merely stated that

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“[m]odern development of international law has strengthened this principle for non-navigational uses of international watercourses” (at ¶85). As confirmation of the development of this general principle, the Court cited the 1997 Convention on the Law of the Non-­Navigational Uses of International Watercourses (ibid.). 62

General principle of innocent passage Type: Substantive Underpinning: Judicial, International Recurrence: 4 icj decisions

Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) 1949 “[I]n the opinion of the Court [it is] generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straights used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent” (at 28). The Court considered whether the manner in which the passage was “carried out was consistent with principle of innocent passage” (at 30). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 “[I]n order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters; Article 18, paragraph i (b), of the United Nations Convention on the Law of the Sea of 10 December 1982, does no more than codify customary international law on this point” (at ¶214). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 The Court noted that the rights of innocent passage as part of the existing international law (at ¶432; holding). “[T]hese rights of passage must be available to vessels of third States seeking access to a port in any one of the three coastal States; such rights of passage being essential in a three-State bay with entrance channels that must be common to all three States” (at ¶412).

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“[I]f the waters were delimited, they would then become ‘internal’ ­waters of each of the States; but even so presumably they would need to be subject to the historic and necessary rights of innocent pass­age, so they would still be internal waters in a qualified sense” (at ¶412). “[T]he rights of innocent passage are not inconsistent with a regime of history waters” (at ¶393). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 The Court referred to the general principle of innocent passage as a ‘right’ and as part of customary international law (at ¶223). The Court determined that “Bahraini vessels, like those of all other States, enjoy this right of innocent passage in the territorial sea of Qatar” (at ¶223). 63

1951

64

General principle that the belt of territorial waters must follow the line of the coast Type: Substantive Underpinning: Judicial Recurrence: none Fisheries (U.K. v. Nor.), Judgment [1951] i.c.j. 116 (18 Dec.) “The principle that the belt of territorial waters must follow the general direction of the coast makes it possible to fix certain criteria valid for any delimitation of the territorial sea; these criteria will be elucidated later. The Court will confine itself at this stage to noting that, in order to apply this principle, several States have deemed it necessary to follow the straight base-lines method and that they have not encountered objections of principle by other States” (at 129). General principle that a delimitation agreement must be arrived at in accordance with equitable principles Type: Substantive Underpinning: Judicial Recurrence: none

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) 1969 “[I]f [equitable method] were to be compulsorily applied in all situations, this would not be consonant with certain basic legal notions

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which, as has been observed in paragraphs 48 and 55, have from the beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles” (at ¶85). 65

1969

Equitable general principles Type: Substantive Underpinning: Judicial Recurrence: 7 icj decisions North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) “[W]hen mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is consequently no question in this case of any decision ex aequo et bono” (at ¶88). “The Court has already stated why it considers that the international law of continental shelf delimitation does not involve any imperative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the application of equitable principles, a reasonable result is arrived at” (at ¶90). “[D]elimitation effected according to equitable principles ought to bring [reasonable degree of proportionality] about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines” (at ¶98). “Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline” (at ¶91).

1982

Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18 (24 Feb.) The Parties in this case agreed that the Court should decide in accordance with equitable principles (at ¶37). The Court noted that there

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was a “broad agreement between the Parties that a delimitation which leaves as much as possible to each State those parts of the continental shelf that constitute its natural prolongation will necessarily be in accordance with equitable principles” (at ¶38). “The satisfaction of equitable principles is, in the delimitation process, of cardinal importance […] and identification of natural prolongation may, where the geographical circumstances are appropriate, have an important role to play in defining an equitable delimitation, in view of its significance as the justification of continental shelf rights in some cases; but the two considerations – the satisfying of equitable principles and the identification of the natural prolongation – are not to be placed on a plane of equality” (at ¶44). “The Court has however first to turn to the question of the equitable principles applicable to delimitation of shelf areas” (at ¶68). “Since the Court considers that it is bound to decide the case on the basis of equitable principles, it must first examine what such ­principles entail […] The result of the application of equitable principles must be equitable […] it follows that the term ‘equitable principles’ cannot be interpreted in the abstract; it refers back to the principles and rules which may be appropriate in order to achieve an equitable result” (at ¶70). “Application of equitable principles is to be distinguished from a decision ex aequo et bono [… The Court] it is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result” (at ¶71). “[T]he question of equitable principles [… are] of primordial importance in the delimitation of the continental shelf” (at ¶72). The Court held that “a delimitation carried out in accordance with equitable principles ought to bring about [the element of a reasonable degree of proportionality] between the extent of the continental shelf areas appertaining to the coastal State and the length of the relevant part of its coast” (at ¶133; holding).

Digest of General Principles

1984

1985

463

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246 (12 Oct.) The Chamber opined that the equitable principles, part of general international law, are criteria that are not to be distinguished from “the practical methods to implement them” (at ¶123). As the Court put it, “the finding of the Court of Arbitration clearly shows the different levels at which the various rules concerned are situated: the provisions of Article 6 of the 1958 Convention at the level of special international law, and, at the level of general international law, the norm prescribing application of equitable principles, or rather equitable criteria, without any indication as to the choice to be made among these latter or between the practical methods to implement them. The Chamber considers that such is the current state of customary international law” (ibid.). Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) “In the present case, both Parties agree that, whatever the status of Article 83 of the 1982 Convention, which refers only to the ‘solution’ as being equitable, and does not specifically mention the application of equitable principles, both these requirements form part of the law to be applied” (at ¶29). The Court said that “[t]he application of equitable principles in the particular relevant circumstances may still require the adoption of another method, or combination of methods, of delimitation, even from the outset” (at ¶43). “Judicial decisions are at one […] in holding that the delimitation of a continental shelf boundary must be effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result” (at ¶45). “[C]ourts have, from the beginning, elaborated equitable principles as being, at the same time, means to an equitable result in a particular case, yet also having a more general validity and hence expressible in general terms; for, as the Court has also said, ‘the legal concept of equity is a general principle directly applicable as law’” (at ¶45). “The normative character of equitable principles applied as a part of general international law is important because these principles govern

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not only delimitation by adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek first a delimitation by agreement, which is also to seek an equitable result […] [E]quitable principles are expressed in terms of general application” (at ¶46). “The application of equitable principles thus still leaves the Court with the task of appreciation of the weight to be accorded to the relevant circumstances in any particular case of delimitation” (at ¶48). “[T]he proportionality ‘factor’ arises from the equitable principle that nature must be respected: coasts which are broadly comparable ought not to be treated differently because of a technical quirk of a particular method of tracing the course of a boundary line” (at ¶56). “In applying the equitable principles […] the Court intends to proceed by stages; thus, it will first make a provisional delimitation by using a criterion and a method both of which are clearly destined to play an important role in producing the final result; it will then examine this provisional solution in the light of the requirements derived from ­other criteria, which may call for a correction of this initial result” (at ¶60). “While every case of maritime delimitation is different in its circumstances from the next, only a clear body of equitable principles can permit such circumstances to be properly weighed, and the objective of an equitable result, as required by general international law, to be attained” (at ¶76).

1993

Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), Judgment [1993] i.c.j. 38 (14 June) “If the equidistance-special circumstances rule of the 1958 Convention is, in the light of this 1977 Decision, to be regarded as expressing a general norm based on equitable principles, it must be difficult to find any material difference – at any rate in regard to delimitation between opposite coasts - between the effect of Article 6 and the effect of the customary rule which also requires a delimitation based on equitable principles” (at ¶46).

Digest of General Principles

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“[T]he customary law based upon equitable principles on the other hand requires the investigation of ‘relevant circumstances’” (at ¶54).

2002

2009

66

1985

67

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) Without referring to ‘equitable principles’, the Court said that it “is bound to stress in this connection that delimiting with a concern to achieving an equitable result, as required by current international law, is not the same as delimiting in equity. The Court’s jurisprudence shows that, in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation” (at ¶294; emphasis added) Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment [2009] i.c.j. 61 (3 Feb.) The Court states that “[t]he object of delimitation is to achieve a delimitation that is equitable, not an equal apportionment of maritime areas” (at ¶111). It adds that its jurisprudence, “has also made clear that when the line to be drawn covers several zones of coincident jurisdictions, ‘the so-called equitable principles/relevant circumstances method may usefully be applied, as in these maritime zones this method is also suited to achieving an equitable result’” (at ¶120). General principle that there is to be no question of refashioning geography or compensating for the inequalities of the nature Type: Substantive Underpinning: Judicial Recurrence: none Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) The Court said that “[t]he pertinent general principle, to the application of which the proportionality factor may be relevant, is that there can be no question of ‘completely refashioning nature’; the method chosen and its results must be faithful to the actual geographical situation” (at ¶57). General principle of respect due to all such relevant circumstances Type: Substantive Underpinning: Judicial Recurrence: none

466 1985

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Digest of General Principles

Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) The Court listed this general principle along with other principles as one of the well-known examples of the equitable principles. It noted that “[t]hat equitable principles are expressed in terms of general ­application, is immediately apparent from a glance at some wellknown examples: [… such as] the principle of respect due to al1 such relevant circumstances” (at ¶46). General principle of natural prolongation Type: Substantive Underpinning: Judicial Recurrence: 4 icj decisions

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) 1969 The Court mentioned the ‘principle of natural prolongation’ in the abstract to its decision (at 4; abstract). “More fundamental than the notion of proximity appears to be the principle – constantly relied upon by all the Parties – of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court’s opinion, determinant” (at ¶43). “Submarine areas do not really appertain to the coastal State becauseor not only because-they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a wellestablished principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, – in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a

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coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State; – or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it” (at ¶43). Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18 (24 Feb.) 1982 “Both Parties rely on the principle of natural prolongation” (at ¶48). The Court ascertained this general principle also as a “fundamental concept of the continental shelf as being the natural prolongation of the land domain”, by referring to its North Sea Continental Shelf case (at ¶36). In this case, the Court did not rely on this general principle (at ¶133; holding). It noted that “[t]he principle that the natural prolongation of the coastal State is a basis of its legal title to continental shelf rights does not in the present case, as explained above, necessarily provide criteria applicable to the delimitation of the areas appertaining to adjacent States. In so far as Article 76, paragraph 1, of the draft convention repeats this principle, it introduces no new element and does not therefore call for further consideration” (at ¶48). In this decision, the Court recognised that its decision in North Sea Continental Shelf provided for the establishment of this notion. The Court said that “[i]t was the Court itself in its 1969 Judgment which gave currency to the expression ‘natural prolongation’ as part of the vocabulary of the international law of the sea” (at ¶43). “The Court in 1969 did not regard an equitable delimitation and a determination of the limits of ‘natural prolongation’ as synonymous, since in the operative clause of its Judgment, just quoted, it referred only to the delimitation being effected in such a way as to leave ‘as much as possible’ to each Party the shelf areas constituting its natural prolongation” (at ¶44). The Court added that “identification of natural prolongation may, where the geographical circumstances are appropriate, have an im­ portant role to play in defining an equitable delimitation” (at ¶44).

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Digest of General Principles

Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) 1985 The Court stated that “the legal concept of natural prolongation does not attribute any relevance to geological or geophysical factors either as basis of entitlement or as criterion for delimitation” (at ¶77). In this case, the Court did not apply it, when noting that “[n]o criterion for delimitation of shelf areas can be derive from the principle of natural prolongation” (at ¶79; holding). Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045 (13 Dec.) 1999 The Court did not mention it as a ‘principle’ and only noted that “is unable to conclude that, from its bed configuration, the southern channel constitutes the principal and natural prolongation of the course of the Chobe before the bifurcation” (at ¶39). 69

General principle that the land dominates the sea Type: Substantive Underpinning: Judicial Recurrence: 7 icj decisions

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) 1969 “The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coast – lines of the countries whose continental shelves are to be delimited” (at ¶96). Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) 1978 The Court said that its previous decisions provide that “the continental shelf is a legal concept in which ‘the principle is applied that the land dominates the sea’ (i.c.j. Reports 1969, p. 51, para. 96); and it is solely by virtue of the coastal State’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law” (at ¶86). Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18 (24 Feb.) 1982 The Court referred to its North Sea Continental Shelf decision. “As the Court explained in the North Sea Continental Shelf cases the

Digest of General Principles

469

c­ ontinental shelf is a legal concept in which ‘the principle is applied that the land dominates the sea’” (at ¶73). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 “In previous cases the Court has made clear that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as ‘the land dominates the sea’ […] It is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State” (at ¶185). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) 2007 “The Court reiterates that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as ‘the land dominates the sea’ […] Following this approach, sovereignty over the islands needs to be determined prior to and independently from maritime delimitation” (at ¶126). “Given the dual nature of the present case – a maritime delimitation and a determination of sovereignty over islands situated in the maritime area in dispute – and taking into account the principle that the ‘land dominates the sea’ […] the legal nature of the land features in the disputed area must be assessed at the outset” (at ¶135). Maritime Delimitation in the Black Sea (Rom. V. Ukr.), Judgment [2009] i.c.j. 61 (3 Feb.) 2009 “The title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea through the projection of the coasts or the coastal fronts […] In the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court observed that ‘the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it’” (at ¶77). Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 “It is well established that ‘[t]he title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea through the projection of the coasts or the coastal fronts’ […] As the Court stated in the North Sea Continental

470

Digest of General Principles

Shelf […] cases, ‘the land is the legal source of the power which a State may exercise over territorial extensions to seaward’ […] Similarly, in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court observed that ‘the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it’” (at ¶140). 70

General principle that the coast, in order to be considered as relevant for the purpose of the delimitation, must generate projections which overlap with projections from the coast of the other Party Type: Substantive Underpinning: Judicial Recurrence: none

Maritime Delimitation in the Black Sea (Rom. V. Ukr.), Judgment [2009] i.c.j. 61 (3 Feb.) 2009 “The Court, in considering the issue in dispute, would recall two principles underpinning its jurisprudence on this issue: first, that the ‘land dominates the sea’ in such a way that coastal projections in the seaward direction generate maritime claims […] second, that the coast, in order to be considered as relevant for the purpose of the delimitation, must generate projections which overlap with projections from the coast of the other Party” (at ¶99). “Consequently ‘the submarine extension of any part of the coast of one Party which, because of its geographic situation, cannot overlap with the extension of the coast of the other, is to be excluded from further consideration by the Court’” (at ¶99). 71

General principle that a costal State possesses sovereignty over the sea bed and water column in its territorial sea Type: Substantive Underpinning: Judicial Recurrence: none

Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 “In accordance with long-established principles of customary international law, a coastal State possesses sovereignty over the sea bed and water column in its territorial sea (ibid. [2001 Qatar v. Bahrain], p. 93, para. 174). By contrast, coastal States enjoy specific rights, rather than sovereignty, with respect to the continental shelf and exclusive economic zone” (at ¶177).

Digest of General Principles

72

471

General principle that an island generates the same maritime rights as other land territory Type: Substantive Underpinning: Judicial, International Recurrence: none

Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 “By denying an exclusive economic zone and a continental shelf to rocks which cannot sustain human habitation or economic life of their own, paragraph 3 provides an essential link between the long-­ established principle that ‘islands, regardless of their size, […] enjoy the same status, and therefore generate the same maritime rights, as other land territory’ (ibid. [2001 Qatar v. Bahrain]) and the more extensive maritime entitlements recognized in unclos and which the Court has found to have become part of customary international law” (at ¶139). The Court confirmed that “even an island which falls within the exception stated in Article 121, paragraph 3, of unclos is entitled to a territorial sea” (at ¶176). 73

General principle of conservation of fish stocks Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3 (2 Feb.) 1973 “The exceptional dependence of Iceland on its fisheries and the principle of conservation of fish stocks having been recognized, the question remains as to whether Iceland is or is not competent unilaterally to assert an exclusive fisheries jurisdiction extending beyond the ­12-mile limit” (at ¶42). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3 (25 July) 1974 “In its Judgment of 2 February 1973, pronouncing on its jurisdiction in the case, the Court, after taking into account the aforesaid contentions of the Applicant concerning fishery conservation and preferential rights, referred again to ‘the exceptional dependence of Iceland on its fisheries and the principle of conservation of fish stocks’ […] The

472

Digest of General Principles

j­udicial notice taken therein of the recognition given by the Parties to the exceptional dependence of Iceland on its fisheries and to the need of conservation of fish stocks in the area clearly implies that such questions are before the Court” (at ¶45). Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246 (12 Oct.) 1984 In this decision, the Chamber identified a related general principle, namely, the “principle that a single State should be entrusted with the management of the fish resources of the principal banks of the area” (at ¶172). 74

General principle of freedom of maritime communication Type: Substantive Underpinning: Judicial, International Recurrence: 2 icj decisions

Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) 1949 The Court mentions this ‘principle’ as one of the “general and ­well-established principles” providing for international obligations outside the 1907 Hague Convention (at 22). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court considered the freedom of communication as part of the Treaty between Nicaragua and the United States, and did not refer to this notion as a ‘principle’. The Court said that “where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce […] Accordingly, the Court finds, in the context of the present proceedings between Nica­ ragua and the United States, that the laying of mines in or near Nicaraguan ports constituted an infringement, to Nicaragua’s detriment, of the freedom of communications and of maritime commerce” (at ¶253). 75

General principle of proximity Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

Digest of General Principles

1969

473

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) The Court said that the “principle of proximity inherent in the basic concept of the continental shelf” (at ¶49). “[I]t seems to the Court that the inherency contention as now put forward by Denmark and the Netherlands inverts the true order of things in point of time and that, so far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter is rather a rationalization of the former-an ex post facto construct directed to providing a logical juristic basis for a method of delimitation propounded largely for different reasons, cartographical and other” (at ¶56). “As regards the notion of proximity, the idea of absolute proximity is certainly not implied by the rather vague and general terminology employed in the literature of the subject […] There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity” (at ¶¶41–42). “[A]ccording to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory” (at ¶43).

1985

Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) “[A]n equidistance line is based on a principle of proximity and is therefore controlled only by salient coastal points” (at ¶56). The Court also referred to the ‘principle of adjacency’. “[T]he law applicable to the present dispute […] is based […] on a criterion of distance from the Coast or, to use the traditional term, on the principle of adjacency as measured by distance” (at ¶61).

76

General principle of equidistance Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. V. Nor.), Judgment [1993] i.c.j. 38 (14 June) 1993 “It is thus apparent that special circumstances are those circumstances which might modify the result produced by an unqualified application of the equidistance principle” (at ¶55).

474

Digest of General Principles

“The 1977 Anglo-French Court of Arbitration, on the other hand, when applying Article 6 of the 1958 Convention to the delimitation between opposite coasts in the Atlantic region, after observing that ‘the obligation to apply the equidistance principle is always one qualified by the condition ‘unless another boundary line is justified by special circumstances”” (at ¶51). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 The Court said “that the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case-law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated” (at ¶231). The Court referred to its 1993 pronouncement on the equidistance principle and stated that it “will follow the same approach in the present case” (at ¶¶229–230). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) 2002 The Court referred to its 1993 and 2001 decisions in referring to the general principle of equidistance, and noted that “will apply the same method in the present case” (at ¶¶289–290). The Court compared the “equidistance/special circumstances method applicable in delimitation of the territorial sea” with the equitable/­ relevant circumstances method (at ¶288). 77

General principle of strict proportionality (avoiding significant disproportionality) Type: Substantive Underpinning: Judicial Recurrence: none

Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment [2012] i.c.j. 624 (19 Nov.) 2012 The Court mentioned, but did not apply the general principle of strict proportionality.

Digest of General Principles

475

“In carrying out this third stage, the Court notes that it is not applying a principle of strict proportionality. Maritime delimitation is not ­designed to produce a correlation between the lengths of the Parties’ relevant coasts and their respective shares of the relevant area” (at ¶240). 78

1927

General principles concerning the régime of ports Type: Substantive Underpinning: International Recurrence: none Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14 (8 Dec.) “Since the Definitive Statute, in so far as it applies to the maritime Danube, does not contain any specific provisions relating to ports, the question of the jurisdiction of the European Commission in relation to ports can only be considered and dealt with as a special application of the principles embodied in Articles 5 and 6 of the Statute” (at 60). “[T]he Definitive Statute has, as regards the fluvial Danube, laid down principles concerning the régime of ports” (at 64).

79

General principle that the two parts of the Danube are wholly subject to the authority of one or other of the Commissions Type: Substantive Underpinning: International Recurrence: none

Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14 (8 Dec.) 1927 “Article 3 of the Definitive Statute on the contrary clearly lays down the principle that the two parts of the Danube are wholly subject, that is to say over the whole course of both sectors, to the authority of one or other of the Commissions” (at 62). j 80

International Humanitarian Law Humanitarian principles Type: Substantive Underpinning: Judicial, International Recurrence: 4 icj decisions

476

Digest of General Principles

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] i.c.j. 15 (28 May) 1951 “The complete exclusion from the [Genocide] Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis” (at 24). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court in this case referred to ‘principles of humanitarian law’ (at 14; abstract). “[I]f a State lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humanitarian law underlying the specific provisions of Convention No. viii of 1907. Those principles were expressed by the Court in the Corfu Channel case as follows: ‘certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war’” (at ¶215). “[T]he United States may be judged according to the fundamental general principles of humanitarian law; in [the Court’s] view, the Geneva Conventions are in some respects a development, and in other respects no more than the expression, of such principles. It is significant in this respect that, according to the terms of the Conventions, the denunciation of one of them ‘shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples’” (at ¶218). “The relevant principles are to be looked for in the provisions of ­Article 3 of each of the four [Geneva] Conventions of 12 August 1949” (at ¶219). “[S]ince such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (at ¶220).

Digest of General Principles

477

“The Court has also found […] that general principles of humanitarian law include a particular prohibition, accepted by States, and extending to activities which occur in the context of armed conflicts, whether international in character or not” (at ¶255). “[E]ncouraging the commission of acts contrary to general principles of humanitarian law, is unlawful” (at ¶256). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) 1996 “The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles. These rules indicate the normal conduct and behaviour expected of States” (at ¶82). “The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used” (at ¶89). The Court also referred to the general formulation “rules and principles of international humanitarian law”. For example, the Court stated that “principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969” (at ¶¶83, 90). “The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the never make civilians the object of attack and must consequently never

478

Digest of General Principles

use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use” (at ¶78). “[T]he Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons” (at ¶87). “[T]he threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law” (at ¶105; holding). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 In this case, the Court referred to ‘rules’ of international humanitarian law. “This obligation [to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area] comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party […] The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the drc in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation” (at ¶¶178, 180). 81

General principle of principle of neutrality Type: Substantive Underpinning: Judicial Recurrence: none

Digest of General Principles

479

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) 1996 “Although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed, the conclusions to be drawn from this applicability are, on the other hand, controversial” (at ¶90). The Court considered this general principle “as an established part of the customary international law” (at ¶88). “[I]nternational law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used” (at ¶89). “A similar view has been expressed with respect to the effects of the principle of neutrality. Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States” (at ¶93). 82

1996

83

General principle of distinction Type: Substantive Underpinning: International Recurrence: none Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) “The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants” (at ¶78). General principle of prohibition on causing unnecessary suffering to combatants Type: Substantive Underpinning: Judicial Recurrence: none

480

Digest of General Principles

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) 1996 “The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following […] According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use” (at ¶78). 84

General principle of necessity and proportionality Type: Substantive Underpinning: Judicial Recurrence: 4 icj decisions

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 In this decision, the Court did not refer to ‘principles’, but to the criteria and canons of necessity and proportionality (at ¶237). It concluded that “it [wa]s clear that these latter United States activities in question could not have been proportionate to that aid” (at ¶237). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) 1996 The Court noted that “[r]espect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality” (at ¶30). The Court also said that “States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives” (at ¶30). The Court referred to this general principle(s) as ‘conditions’ (at ¶44). The Court also considered the principle of proportionality individually. It said that “[t]he proportionality principle may thus not in itself

Digest of General Principles

481

exclude the use of nuclear weapons in self-defence in all circumstances” (at ¶42). “[I]n any case any right of recourse to [armed] reprisals [in time of peace] would, like self-defence, be governed inter alia by the principle of proportionality” (at ¶46). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 In this case, the Court considered the general principle of proportionality independently from necessity. The Court found that “Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its right to an equitable and reasonable share of the natural resources of the ­Danube – with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetkoz – failed to respect the proportionality which is required by international law” (at ¶85). The Court said that “the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate” (at ¶87). Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) 2003 In this decision, the Court referred to this general principle(s) as ‘criteria’ and ‘requirements’ in the context of self-defence (at ¶¶43, 77). It “will therefore turn to the criteria of necessity and proportionality in the context of international law on self-defence” (at ¶73). By referring to its decision in Military and Paramilitary Activities, the Court noted that necessity and proportionality is part of customary international law. The Court said that it “endorsed the shared view of the parties to that case that in customary law ‘whether the response to the [armed] attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in selfdefence’” (at ¶44). In interpreting the notion of ‘necessity’, the Court referred to Military and Paramilitary Activities and stated that “whether a given measure is

482

Digest of General Principles

‘necessary’ is not purely a question for the subjective judgment of the party”, and may thus be assessed by the Court. In the present case, the question whether the measures taken were ‘necessary’ overlaps with the question of their validity as acts of self-defence” (at ¶43). “As the Court observed in its decision of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence” (at ¶43). 85

General principle of status quo ante bellum Type: Substantive Underpinning: International Recurrence: none

Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] p.c.i.j. (ser.B) No. 14 (8 Dec.) 1927 “[T]he restoration of the status quo ante bellum was one of the leading principles of the provisions of the Treaty of Versailles concerning the Danube as well as of those of the Definitive Statute” (at 27). The Court said that “it follows from the terms of Article 6 of the Definitive Statute as interpreted by the Court [that the pre-war situation of fact must be considered as maintained]” (at 61). k 86

Other Substantive General Principles General principle that there can be no question of distributive justice Type: Substantive Underpinning: Judicial Recurrence: none

Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) 1985 The Court listed this general principle along with other principles as one of the well-known examples of equitable principles. It said that “equitable principles are expressed in terms of general application, is immediately apparent from a glance at some well-known examples [among others…] the principle that there can be no question of distributive justice” (at ¶46).

Digest of General Principles

87

483

General principle of legal security Type: Substantive Underpinning: Judicial Recurrence: 3 icj decisions

Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90 (12 July) 2005 The Court referred to legal security only as a ‘requirement’ (at ¶144). Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6 (3 Feb.) 2006 The Court noted that “[i]t is a rule of international law, deriving from the principle of legal security and well established in practice, that, subject to agreement to the contrary, the withdrawal by a contracting State of a reservation to a multilateral treaty takes effect in relation to the other contracting States only when they have received notification thereof” (at ¶41). The Court also stated that this rule is provided for in Article 22(3)(a) vclt. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 In this decision, the Court referred solely to ‘legal security’ as a need of the international community. The Court stated that “[t]his result [the principle of res judicata] is required by the nature of the judicial ­function, and the universally recognized need for stability of legal ­relations” (at ¶139) and that “[i]n the interests of the stability of legal relations, those restrictions must be rigorously applied” (at ­ ¶120). 88

General principle that a Party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship Type: Substantive Underpinning: Judicial Recurrence: none

484

Digest of General Principles

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 “One of the fundamental principles governing the international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot be recognized as retaining the rights which it claims to derive from the relationship” (at ¶91). This general principle belongs to the family of general principles regulating treaty termination on account of a breach. 89

General principles of peaceful settlement of disputes Type: Substantive Underpinning: International Recurrence: 1 pcij decision and 4 icj decisions

Nationality Decrees Issued in Tunis and Morocco on November 8, 1921, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 4 (7 Feb.) 1923 “Article 15, in effect, establishes the fundamental principle that any dispute likely to lead to a rupture which is not submitted to arbitration in accordance with Article 13 shall be laid before the Council” (at 24). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3 (25 July) 1974 The Court said that the obligation to negotiate “also corresponds to the Principles and provisions of the Charter of the United Nations concerning peaceful settlement of disputes” (at ¶75). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 The Court has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today: the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the “maintenance of international peace and security, should seek a ­solution by peaceful means. Enshrined in Article 33 of the United

Digest of General Principles

485

­ ations Charter, which also indicates a number of peaceful means N which are available, this principle has also the status of customary law” (at ¶290). “The Court recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with the principle of ­customary international law that prescribes the peaceful settlement of international disputes” (at ¶291). The Court in the holding recalled “to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law” (at ¶292; holding). Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69 (10 Dec.) 1988 “[I]n its view the jurisprudence of the Court supports the principle that when there is disagreement between the parties on the point, the issue is to be resolved not so much on the basis of the particular form of words used in the compromissory instrument, but by an objective evaluation by the Court of the possibilities for settlement of the dispute by direct negotiations” (at ¶63). “The purpose of recourse to the Court is the peaceful settlement of such disputes” (at ¶52). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 “Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes” (at ¶116). 90

General principle that the description of offences and of the applicable legal defences is reserved to domestic law Type: Substantive Underpinning: International Recurrence: none

486

Digest of General Principles

Immunities and Criminal Proceedings (Eq. Guinea v. Fr.), Preliminary Objections [2018] i.c.j. (6 June) 2018 The Court said that “[i]n accordance with that general principle [in Palermo Convention], the Convention helps to co-ordinate but does not direct the actions of States parties in the exercise of their domestic jurisdiction” (at ¶118). Article 11(6) of the Palermo Convention provides that “[n]othing contained in this Convention shall affect the principle that the description of the offences established in accordance with this Convention and of the applicable legal defences or other legal principles controlling the lawfulness of conduct is reserved to the domestic law of a State Party and that such offences shall be prosecuted and punished in ­accordance with that law” (ibid.). 91

General principle governing the exercise by the Governor of the right to dismiss the President of the Directorate at Memel Type: Substantive Underpinning: Judicial Recurrence: none

Interpretation of the Statute of the Memel Territory, Judgment [1932] p.c.i.j. (ser.A/B) No. 49 (11 Aug.) 1932 “The Court has already laid down the broad principle governing the exercise by the Governor of the right to dismiss the President of the Directorate at Memel. The principle so laid down is sufficient to indicate the conditions and circumstances in which such a right would exist” (at 321). “The right of the Governor to dismiss the President of the Directorate arises only in exceptional circumstances, and, though it results from the Statute, it is not regulated by it. It follows that the consequences resulting from it are not to be found regulated in detail in the Statute. They can only be deduced from a consideration of the broad lines of the régime which the Statute intended to introduce in Memel” (ibid.).

Digest of General Principles

92

487

General principle concessionaries, who were authorised to collect lighthouse dues were to be remunerated by the receipts from this source Type: Substantive Underpinning: International Recurrence: none

Lighthouses case between France and Greece, Judgment, 1934 p.c.i.j. (ser.A/B) No. 62 (17 Mar.) 1934 In considering this general principle, the Court relied on the Treaty of Serves (which was then not yet in force) that laid down rules for the treatment of concessions granted by the Ottoman authorities (at 10). “[T]he concession was based on the following principle: the concessionaires, who were authorized to collect lighthouse dues-from which however war-vessels were exempted – were to be remunerated by the receipts from this source” (at 8). “Article 311 [of the Treaty of Sevres] and the following articles of that Treaty, which was not ratified, once more laid down rules for the treatment of concessions granted by the Ottoman authorities” (at 10). 93

General principle of the responsibility of the Agrarian Fund Type: Substantive Underpinning: International Recurrence: none

Pajzs‚ Czáky‚ Esterházy, Judgment [1936] p.c.i.j. (ser.A/B) No. 68 (16 Dec.) 1936 The Court said that Article i(2)(2) of the Agreement ii of Paris is “applying the principle of the responsibility of the Agrarian Fund” (at 52–53). The Court said that this principle was “laid down by the general clause at the beginning of the Article” (at 53). The function of this general principle is “[to] state against whom the proceedings described above are to be instituted, when they are instituted as a result of the application of the new Yugoslav law finally setting the manner in which the properties in question are to be dealt with” (at 53).

488 II a 94

1928

Digest of General Principles

Procedural General Principles Court’s Jurisdiction General principle of kompetenz-kompetenz Type: Procedural Underpinning: Judicial, International Recurrence: 1 pcij decision and 12 icj decisions Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article iv), Advisory Opinion [1928] p.c.i.j. (ser.B) No. 16 (28 Aug.) “[H]aving regard amongst other things to the principle that, as a general rule, any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its jurisdiction-that questions affecting the extent of the jurisdiction of the Mixed Commission must be settled by the Commission itself without action by any other body being necessary” (at 20). “[T]o accord to individual members of an organization constituted as a corporate body any right to take action of any kind outside the sphere of proceedings within that organization, would be clearly contrary to the accepted principle of law” (at 25). “Article iv of the Final Protocol expressly contemplates questions which may arise within the Mixed Commission” (at 20).

1953

Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111 (18 Nov.) “Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction” (at 119). “This principle was expressly recognized in Articles 48 and 73 of the Hague Conventions of July 29th, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes, to which Guatemala became a Party” (at 119).

Digest of General Principles

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“The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being ‘of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function’. This principle has been frequently applied and at times expressly stated” (at 119). “This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been ­pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations” (at 119). “[T]he Court has not hesitated to adjudicate on the question of its own jurisdiction in cases in which the dispute which had arisen in this respect went beyond the interpretation and application of paragraph 2 of Article 36” (at 119). “Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, ‘whose function is to decide in accordance with international law such disputes as are submitted to it’ (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law” (at 120). “The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case” (at 120).

1962

Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] i.c.j. 151 (20 July) “Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction” (at 168, emphasis in original).

490

1972

Digest of General Principles

Appeal Relating to the Jurisdiction of the icao Council (India v. Pak.), Judgment [1972] i.c.j. 46 (18 Aug.) In this case, the Court referred to this general principle as ‘compétence de la compétence’. “Also pleaded is the principle of the ‘competence de la competence’ as making the Council’s jurisdictional decisions conclusive and unappealable. But this prejudges the question, for if on other grounds it appears that these decisions must be held appealable, this principle could not be permitted to prevail without defeating a priori all possibility of appeal […] such matters would become material only if it should appear that the Treaties and their jurisdictional clauses did not suffice, and that the Court’s jurisdiction must be sought outside them, which, for reasons now to be stated, the Court does not find to be the case” (at ¶15).

1973

Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3 (2 Feb.) “[T]he Court, in accordance with its Statute and its settled jurisprudence, must examine proprio motu the question of its own jurisdiction to consider the Application of the United Kingdom. Furthermore, in the present case the duty of the Court to make this examination on its own initiative is reinforced by the terms of Article 53 of the Statute of the Court” (at ¶12). “[A]ny question as to the jurisdiction of the Court, deriving from an alleged lapse through changed circumstances, is resolvable through the accepted judicial principle enshrined in Article 36, paragraph 6, of the Court’s Statute, which provides that ‘in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court’” (at ¶45). “Article 53 of the Statute both entitles the Court and, in the present proceedings, requires it to pronounce upon the question of its jurisdiction” (at ¶45).

1974

Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253 (20 Dec.) “[The Court] must on this basis satisfy itself, first that there exists no bar to the exercise of its judicial function, and secondly, if no such bar exists, that the Application is well founded in fact and in law” (at ¶15).

Digest of General Principles

1978

1980

1986

491

Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) “In these circumstances [non-appearance of Turkey before the Court] account can be taken of its contents only to the extent that the Court finds appropriate in discharging its duty, under Article 53 of the Statute, to satisfy itself as to its jurisdiction to entertain the Application” (at ¶14). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment [1980] i.c.j. 3 (24 May) “[T]he Court must now proceed, in accordance with Article 53, paragraph 2, of the Statute, to determine whether it has jurisdiction to decide the present case” (at ¶44). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June). “Having taken part in the proceedings to argue that the Court lacked jurisdiction, the United States thereby acknowledged that the Court had the power to make a finding on its own jurisdiction to rule upon the merits. It is not possible to argue that the Court had jurisdiction only to declare that it lacked jurisdiction” (at ¶27). “Under Article 36, paragraph 6, of its Statute, the Court has jurisdiction to determine any dispute as to its own jurisdiction, and its judgment on that matter, as on the merits, is final and binding on the parties under Articles 59 and 60 of the Statute” (at ¶27).

1991

Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53 (12 Nov.) “[T]he Court would first recall ‘a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction’” (at ¶46). “[T]he Tribunal did not act in manifest breach of its competence to determine its own jurisdiction by deciding that it was not required

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to answer the second question except in the event of a negative answer to the first” (at ¶56).

1992

1996

1998

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) “The Court’s jurisdiction in the matter was contested by Nicaragua, but the Court found that it had jurisdiction; a decision which was within the remit of any court to decide its own jurisdiction” (at ¶402). Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66 (8 July) “As the Court has stated, ‘each organ must, in the first place at least, determine its own jurisdiction’” (at ¶29). Fisheries Jurisdiction (Spain v. Canada), Judgment [1998] i.c.j. 432 (4 Dec.) “The Court points out that the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself. Although a party seeking to assert a fact must bear the burden of proving it […] this has no relevance for the establishment of the Court’s jurisdiction, which is a ‘question of law to be resolved in the light of the relevant facts’” (at ¶37). “[T]here is no burden of proof to be discharged in the matter of jurisdiction. Rather, it is for the Court to determine from all the facts and taking into account all the arguments advanced by the Parties, ‘whether the force of the arguments militating in favour of jurisdiction is preponderant, and to ‘ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it’” (at ¶38). In this case, the Court also said that it “has had full freedom to interpret the text of the reservation, and its reply to the question whether or not it has jurisdiction to entertain the dispute submitted to it depends solely on that interpretation” (at ¶86).

95

General principle that the jurisdiction of the Court depends on the will/consent of the Parties Type: Procedural Underpinning: International, Judicial Recurrence: 5 pcij and 28 icj decisions

Digest of General Principles

1923

1924

1928

493

Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5 (23 July) “It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent can be given once and for all in the form of an obligation freely undertaken, but it can, on the contrary, also be given in a special case apart from any existing obligation” (at 27, referring also to Article 17 of the Covenant of the League of Nations). Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2 (30 Aug.) In this case the Court only said that “[t]he general basis of the jurisdiction given to the Permanent Court of International Justice is set down in Articles 34 and 36 of the Statute” (at 10). Rights of Minorities in Upper Silesia (Minority Schools), Judgment [1928] p.c.i.j. (ser.A) No. 15 (26 Apr.) “The Court’s jurisdiction depends on the will of the Parties” (at 22). “This principle only becomes inoperative in those exception cases in which the dispute which States might desire to refer to the Court would fall within the exclusive jurisdiction reserved to some other authority” (at 23). The Court also said that the ‘mere declaration’ or a conclusive act suffices for the Court to conclude that the State has accepted the jurisdiction of the Court (at 23–25). “[T]here seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it” (at 24). “[T]here is no rule laying down that consent must take the form of an express declaration rather than that of acts conclusively establishing it” (at 25).

1928

Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17 (13 Sept.) “As the Court has said in Judgment No.12 [Rights of Minorities in Upper Silesia (Minority Schools)], concerning certain rights of minorities in

494

Digest of General Principles

Upper Silesia, Article 36 of the Statute establishes the principle that the Court’s jurisdiction depends on the will of the Parties; the Court therefore is always competent once the latter have accepted its ­jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it, save in exceptional cases where a dispute may be within the exclusive jurisdiction of some other body” (at 37).

1939

1950

1952

1953

Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78 (15 June) The Court noted that the “Greek Government has raised no objection [to the Court’s jurisdiction]; on the contrary, it has submitted arguments on the merits and has asked for a decision on the merits” (at 174). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 65 (30 Mar.) “The Court cannot, it is said, give the Advisory Opinion requested without violating the well-established principle of international law according to which no judicial proceedings relating to a legal question pending between States can take place without their consent. This objection reveals a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions. The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States” (at 71). Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) “These general rules [laid down in Article 36 of its Statute], which arc entirely different from the special provisions of Article 41, are based on the principle that the jurisdiction of the Court to deal with and decide a case on the merits decisions on the will of the Parties. Unless the Parties have conferred jurisdiction on the Court in accordance with Article 36, the Court lacks such jurisdiction” (at 103). Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111 (18 Nov.) In this case the Court referred only to Article 63(2) of its Statute, which embodies this general principle. “Paragraph 2 of Article 36 refers to the

Digest of General Principles

495

subject-matter of compulsory jurisdiction, the principle and application of which it governs in conjunction with Articles 32 to 35 of the Rules” (at 122).

1954

1959

Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19 (15 June) “To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent” (at 32). Aerial Incident of 27 July 1955 (Isr. v. Bulg.), Preliminary Objections [1959] i.c.j. 127 (26 May) “[T]he Court, in order to interpret Article 36, paragraph 5, should consider it in its context and bearing in mind the general scheme of the Charter and the Statute which founds the jurisdiction of the Court on the consent of States. It should, as it said in the case of the Monetary gold removed from Rome in 1943, be careful not to ‘run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent’” (at 142). “But when, as in the present case, a State has for many years remained a stranger to the Statute, to hold that that State has consented to the transfer, by the fact of its admission to the United Nations, would be to regard its request for admission as equivalent to an express declaration by that State as provided for by Article 36, paragraph 2, of the Statute. It would be to disregard both that latter provision and the principle according to which the jurisdiction of the Court is conditional upon the consent of the respondent, and to regard as sufficient a consent which is merely presumed” (at 142).

1964

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Preliminary Objections [1964] i.c.j. 6 (24 July) The Court in this case considered this general principle in relation to “reactivation of a jurisdictional clause by virtue of Article 37 [of its Statute]” (at 36). The Court said that “the case of the reactivation of a jurisdictional clause by virtue of Article 37 to be no more than a particular case of the familiar principle of consent given generally

496

Digest of General Principles

and in advance, in respect of a certain class of jurisdictional clause” (ibid). The Court further clarified that the “[c]onsent to an obligation of compulsory jurisdiction must be regarded as given ipso facto by joining an international organization, membership of which involves such an obligation, and irrespective of the date of joining” (at 36). 1975

Western Sahara, Advisory Opinion [1975] i.c.j. 12 (16 Oct.) The Court in this advisory opinion reiterated another aspect of this general principle, namely, that the State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. It said that “[i]n support of these propositions Spain has invoked the fundamental rule, repeatedly reaffirmed in the Court’s jurisprudence, that a State cannot, without its consent, be compelled to submit its disputes with other States to the Court’s adjudication” (at ¶28). In this opinion, the Court also noted that this general principle is not applicable in advisory proceedings. It said that “the absence of an interested State’s consent to the exercise of the Court’s advisory jurisdiction does not concern the competence of the Court but the propriety of its exercise, as clearly appears from the Advisory Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and ­Romania, First Phase, to which reference will be made later. Hence, notwithstanding the fact that Spain has based on the absence of its consent an objection against the competence of the Court as well as the propriety of its exercise, it is in dealing with the latter that the Court will examine the issues raised by that lack of consent” (at ¶21). “The Court, it is true, affirmed in this pronouncement that its competence to give an opinion did not depend on the consent of the interested States, even when the case concerned a legal question actually pending between them […] Thus the Court recognized that lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion” (at ¶32).

Digest of General Principles

497

“In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction” (at ¶33). “It follows that the legal position of the State which has refused its consent to the present proceedings is not ‘in any way compromised by the answers that the Court may give to the questions put to it’” (at ¶42).

1984

Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] i.c.j. 3 (21 Mar.) “[I]t is a fundamental principle that the Court has no jurisdiction to determine matters in dispute between States without their consent” (at ¶14). “These are in effect two facets of a single reality, namely the basic principle that the jurisdiction of the Court to deal with and judge a dispute depends on the consent of the parties thereto” (at ¶34). “It appears to the Court that if it were to apply this argument to an intervention having the object which, as explained above, is that of Italy, it would be admitting that the procedure of intervention under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction: primarily the principle of consent, but also the principles of reciprocity and equality of States. The Court considers that an exception of this kind could not be admitted unless it were very clearly expressed. Recognition of the compulsory jurisdiction of the Court is an important aspect of the freedom and equality of States in the choice of the means of peaceful settlement of their disputes. Such a limitation is not to be presumed, and must be clearly and expressly stated if it is to be admitted. Article 62 of the Statute contains no such express derogation; and neither its position in the Statute, nor the travaux préparatoires of its adoption, serve to support an interpretation of the Article as intended to effect such derogation” (at ¶35).

498

1984

1986

1985

1989

Digest of General Principles

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) In this case, the Court referred to “the requirement of consent as a basis of its jurisdiction, and more particularly as regards the formalities required for that consent to be expressed in accordance with the provisions of Article 36, paragraph 2, of the Statute” (at ¶45). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “[T]he Court’s jurisdiction, as it has frequently recalled, is based on the consent of States, expressed in a variety of ways including declarations made under Article 36, paragraph 2, of the Statute” (at ¶44). Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192 (10 Dec.) “It is of course a fundamental principle that ‘[t]he consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases’ […] It follows, first that parties to treaties or special agreements are free to make their consent to the seisin of the Court, and hence the Court’s jurisdiction, subject to whatever pre-conditions, consistent with the Statute, as may be agreed between them; and secondly, that in principle a State may validly waive an objection to jurisdiction which it might otherwise have been entitled to raise” (at ¶43). Applicability of Article iv, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion [1989] i.c.j. 177 (15 Dec.) In this advisory opinion, the Court confirmed its finding in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase and Western Sahara that the consent of States is not a condition for the competence of the Court in advisory proceedings. It said that “[a]s the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them” (at ¶31). “While, however, the absence of the consent of Romania to the present proceedings can have no effect on the jurisdiction of the Court, it is a matter to be considered when examining the propriety of the Court giving an opinion” (at ¶37).

Digest of General Principles

499

“[T]he Court must consider whether in this case ‘to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent’. The Court considers that in the present case to give a reply would have no such effect” (at ¶38).

1990

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92 (13 Sept.) In this case the Chamber considered “the general principle of consensual jurisdiction in its relation with the institution of intervention” (at ¶94). “There can be no doubt of the importance of this general principle, upon which the State seeking to intervene has itself, in its Application, laid considerable emphasis. As the Permanent Court of International Justice expressed it, the Court operates ‘bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given’ (Mavrommatis Palestine Concessions […])” (at ¶95). “[T]he pattern of international judicial settlement under the Statute is that two or more States agree that the Court shall hear and determine a particular dispute. Such agreement may be given ad hoc, by Special Agreement or otherwise, or may result from the invocation, in relation to the particular dispute, of a compromissory clause of a treaty or of the mechanism of Article 36, paragraph 2, of the Court’s Statute” (at ¶95). “Normally […] no other state may involve itself in the proceedings without the consent of the original parties. Nevertheless, procedures for a ‘third’ State to intervene in a case are provided in Articles 62 and 63 of the Court’s Statute” (at ¶¶95–96). The Court found that this general principle does not apply to a third non-Party intervener to the case. “Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case; as the Court stated in 1984, ‘the opposition [to an intervention] of the parties to a case is, though very important, no more than one element to be taken into account by the Court’ […] If an intervener were held to become a party to a case merely as a

500

Digest of General Principles

c­ onsequence of being permitted to intervene in it, this would be a very considerable departure from this principle of consensual jurisdiction” (at ¶¶96, 99). “Acceptance of the Statute by a State does not of itself create jurisdiction to entertain a particular case: the specific consent of the parties is necessary for that” (at ¶99).

1992

Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240 (26 June) The Court referred to it in its abstract as a ‘fundamental principle of consent of States to Court’s jurisdiction’ (at 240; abstract). “The question that arises is accordingly whether, given the régime thus described, the Court may, without the consent of New Zealand and the United Kingdom, deal with an Application brought against Australia alone” (at ¶49).

1992

1995

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) “Since the jurisdiction of the Chamber, as of the Court, depends upon the consent of the Parties, it follows that it has no jurisdiction to effect any such delimitation” (at ¶378). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility [1995] i.c.j. 6 (15 Feb.) “There is no doubt that the Court’s jurisdiction can only be established on the basis of the will of the Parties, as evidenced by the relevant texts. But in interpreting the text of the Doha Minutes, the Court has reached the conclusion that it allows a unilateral seisin. Once the Court has been validly seised, both Parties are bound by the procedural consequences which the Statute and the Rules make applicable to the method of seisin employed” (at ¶43). “[T]he Parties had reaffirmed their consent to its jurisdiction and determined the subject-matter of the dispute in accordance with the Bahraini formula; it has further noted that the Doha Minutes allowed unilateral seisin. The Court considers, consequently, that it has jurisdiction to adjudicate upon the dispute” (at ¶44).

Digest of General Principles

1995

501

East Timor (Port. v. Austl.), Judgment [1995] i.c.j. 90 (30 June) “The Court recalls in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction. This principle was reaffirmed in the Judgment given by the Court in the case concerning Monetary Gold Removed from Rome in 1943 and confirmed in several of its subsequent decisions” (at ¶26). “The Court emphasizes that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case […] However, in this case, the effects of the judgment requested by Portugal would amount to a determination that Indonesia’s entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent. Such a judgment would run directly counter to the ‘well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent’” (at ¶34).

1996

1998

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections, [1996] i.c.j. 595 (11 July) “The Court does not find that the Respondent has given in this case a ‘voluntary and indisputable’ consent…which would confer upon it a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article ix of the Genocide Convention […] It follows from the foregoing that the Court is unable to uphold any of the additional bases of jurisdiction invoked by the Applicant and that its only jurisdiction to entertain the case is on the basis of Article ix of the Genocide Convention” (at ¶¶40–41). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) “The Court recalls that it has always acknowledged as one of the fundamental principles of its Statute that no dispute between States can be decided without their consent to its jurisdiction (Monetary Gold

502

Digest of General Principles

­ emoved from Rome in 1943 […]) Nevertheless, the Court has also emR phasized that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case; and the Court has only declined to ­exercise jurisdiction when the interests of the third State ‘constitute the very subject-matter of the judgment to be rendered on the merits’” (at ¶79). “The Court recalls that it has affirmed, ‘that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction’” (at ¶116). 1998

Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432 (4 Dec.) “The fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations” (at ¶54). “The holding of the Court relied on by Spain in the Right of Passage over Indian Territory case, which was concerned with a possible retroactive effect of a reservation, does not detract from this principle” (at ¶54). “There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction and having heard full legal argument by both parties” (at ¶55). “Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States” (at ¶56).

1999

Legality of Use of Force (Yu. v. U.S.), Order [1999] i.c.j. 916 (2 June) “[T]he Court has repeatedly stated ‘that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction’ East Timor (­Portugal v. Australia)” (at ¶19).

Digest of General Principles

503

“[T]here is a fundamental distinction between the question of the ­acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties; […] whether or not States accept the jurisdiction of the Court, they remain in, any event responsible for acts attributable to them that violate international law” (at ¶¶30–31).

2002

2003

2004

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) “The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide upon legal rights of third States not parties to the proceedings” (at ¶238). Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) “The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties” (at ¶42). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) The Court reiterated the aspect of this general principle already put forward in Western Sahara, namely, that the State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. The Court said that “[i]n applying that principle to the request concerning Western Sahara, the Court found that a legal controversy did indeed exist, but one which had arisen during the proceedings of the General Assembly and in relation to matters with which the ­Assembly was dealing. It had not arisen independently in bilateral relations […] As regards the request for an advisory opinion now before it, the Court acknowledges that Israel and Palestine have expressed radically d­ ivergent views on the legal consequences of Israel’s construction of the wall, on which the Court has been asked to pronounce. However, as the Court has itself noted, ‘Differences of views […] on ­legal ­issues have existed in practically every advisory proceeding’” (at ¶¶47–48).

504

Digest of General Principles

“The Court observes that the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion” (at ¶238).

2006

Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6 (3 Feb.) “[T]he Court has jurisdiction in respect of States only to the extent that they have consented thereto” (at ¶65). “The Court recalls in this regard that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them” (at ¶88). “[T]he Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties” (at ¶125). “[N]o such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention [and the Convention on Racial Discrimination]” (at ¶¶69, 78). “When a compromissory clause in a treaty provides for the Court’s ­jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out therein” (at ¶65). In this case, the Court also noted that the consent of the States to its jurisdiction does not have to be in any particular form, as long as it is unequivocal and voluntary (at ¶21).

2007

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) “The Court recalls a fundamental principle that no State may be subject to its jurisdiction without its consent; as the Court observed in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court’s ‘jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it’” (at ¶76).

Digest of General Principles

2008

505

Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) “The Court first notes that in determining the scope of the consent expressed by one of the parties, the Court pronounces on its jurisdiction and not on the admissibility of the application” (at ¶48). “The jurisdiction of the Court is based on the consent of States, under the conditions expressed therein […] The Statute of the Court does explicitly mention the different ways by which States may express their consent to the Court’s jurisdiction. Thus, in accordance with Article 36, paragraph 1, of the Statute, such consent may result from an explicit agreement of the parties, that agreement being able to be manifested in a variety of ways. Further, States may recognize the jurisdiction of the Court by making declarations to this effect under Article 36, paragraph 2, of the Statute […] The Court has also interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court” (at ¶¶60–61). In relation to this general principle the Court also identified two ‘other rules’, namely, that post hoc consent must be read together with the application in establishing the scope of the Court’s jurisdiction (at ¶¶65–66) and that post hoc consent can also be partial consent (at ¶66). The Court noted that France’s consent does not extend beyond what was stated in the Application (at ¶87). The Court also noted that Parties’ consent to the Court’s jurisdiction (and the limitations of that consent) can be expressed expressly (i.e., in an international agreement or by two separate and successive acts) (at ¶¶48, 60) or impliedly (i.e., with conclusive behaviour) (at ¶61). Whether express or implied, the Parties’ consent must be certain (at ¶62).

2011

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70 (1 Apr.) “[P]rior resort to negotiations or other methods of peaceful dispute settlement performs an important function in indicating the limit of

506

Digest of General Principles

consent given by States. The Court referred to this aspect reflecting the fundamental principle of consent in the Armed Activities case in the following terms: ‘[The Court’s] jurisdiction is based on the consent of the parties and is confined to the extent accepted by them […] When that consent is expressed in a compromissory clause in an international agreement, any conditions to which such consent is subject must be regarded as constituting the limits thereon’” (at ¶131; emphasis in original). 96

1953

1957

1986

General principle that once the Court establishes jurisdiction, unilateral action of the Party cannot have an effect on the Court’s jurisdiction Type: Procedural Underpinning: Judicial Recurrence: 4 icj decisions Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111 (18 Nov.) The Court noting that “[a]n extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established” (at 123). Right of Passage over Indian Territory (Port. v. India), Preliminary ­Objections [1957] i.c.j. 125 (26 Nov.) “It is a rule of law generally accepted, as well as one acted upon in the past by the Court, that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its declaration in whole or in part cannot divest the Court of jurisdiction. In the Nottebohm case the Court gave expression to that principle in the following words: ‘An extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established’. That statement by the Court must be deemed to apply both to total denunciation, and to partial denunciation as contemplated in the Third Portuguese Condition” (at 142). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “By its Judgment of 26 November 1984, the Court found that it had jurisdiction to entertain the present case, first on the basis of the

Digest of General Principles

507

­ nited States declaration of acceptance of jurisdiction, under the opU tional clause of Article 36, paragraph 2, of the Statute, deposited on 26 ­August 1946 and secondly on the basis of Article xxiv of a Treaty of Friendship, Commerce and Navigation between the Parties, signed at Managua on 21 January 1956. The Court notes that since the institution of the present proceedings, both bases of jurisdiction have been terminated […] These circumstances do not however affect the jurisdiction of the Court” (at ¶36).

2008

97

1952

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412 (18 Nov.) “The Court recalls that according to its established jurisprudence, if a title of jurisdiction is shown to have existed at the date of the institution of proceedings, any subsequent lapse or withdrawal of the jurisdictional instrument is without effect on the jurisdiction of the Court. The principle was established in the Nottebohm case […] which related to an acceptance of compulsory jurisdiction (under the optional clause of Article 36, paragraph 2, of the Statute) which expired on a date subsequent to the institution of proceedings citing that acceptance as the basis of jurisdiction. It has subsequently been consistently applied (e.g., where a bilateral treaty relied on as jurisdictional basis had been terminated by the time the Court came to give judgment on the merits of the case” (at ¶95). General principle that the jurisdiction of the Court is limited to the extent accepted by the Parties | General principle of forum prorogatum Type: Procedural Underpinning: Judicial, International Recurrence: 3 icj decisions Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) “The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government has consistently denied the jurisdiction of the Court” (at 114).

508

1996

Digest of General Principles

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) In this case, a Party argued that “in accordance with the doctrine of forum prorogatum (stricto sensu), to have given its consent to the exercise by the Court, in the present case, of a wider jurisdiction than that provided for in Article ix of the Convention” (at ¶40). However, the Court “[did] not find that the Respondent has given in this case a ‘voluntary and indisputable’ consent […] which would confer upon it a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article ix of the Genocide Convention” (at ¶40).

2008

Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) “The Court has also interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court” (at ¶61). “The consent allowing for the Court to assume jurisdiction must be certain. That is so, no more and no less, for jurisdiction based on forum prorogatum […] For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State” (at ¶62). “The deferred and ad hoc nature of the Respondent’s consent, as contemplated by Article 38, paragraph 5, of the Rules of Court, makes the procedure set out there a means of establishing forum prorogatum […] The expression ‘as far as possible’ used in this provision [Article 38(5)] was inserted in the Rules of Court of the Permanent Court of International Justice in 1936, precisely in order to preserve the possibility for the Court to found its jurisdiction on forum prorogatum” (at ¶¶63, 64). “Obviously, the jurisdiction of the Court can be founded on forum prorogatum in a variety of ways, by no means all of which fall under Article 38, paragraph 5” (at ¶64).

Digest of General Principles

509

“Where jurisdiction is based on forum prorogatum, great care must be taken regarding the scope of the consent as circumscribed by the ­respondent State” (at ¶87). 98

1985

1985

99

1953

General principle that the Court must not exceed the jurisdiction conferred upon it by the Parties, but must exercise its jurisdiction to its maximum Type: Procedural Underpinning: Judicial Recurrence: 2 icj decisions Continental Shelf (Libya/Malta), Judgment [1985] i.c.j. 13 (3 June) In this case, the Court did not refer to it as a ‘principle’, but merely stated that “[t]he Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent” (at ¶19). Frontier Dispute (Burk. Faso/Mali), Judgment [1985] i.c.j. 554 (22 Dec.) “[T]he Court has recently confirmed the principle that it ‘must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent’” (at ¶45). General principle that the jurisdiction of the Court must be established on the date of filing the applications The Court labelled this norm as a ‘principle’ in 2008. Type: Procedural Underpinning: Judicial Recurrence: 7 icj decisions Nottebohm (Liech. v. Guat.), Preliminary Objections [1953] i.c.j. 111 (18 Nov.) In this case, the Court did not refer to this notion as a ‘principle’. It merely found that “[a]t the time when the Application was filed, the Declarations of Guatemala and of Liechtenstein were both in force. The regularity of the seising of the Court by this Application has not been disputed. The subsequent lapse of the Declaration of Guatemala, by reason of the expiry of the period for which it was subscribed, cannot invalidate the application if the latter was regular: consequently, the lapse of the Declaration cannot deprive the Court of the juris­diction which resulted from the combined application of Article 36 of the Statute and the two Declarations” (at 122–123).

510

1996

Digest of General Principles

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) In this case, the Court did not cite to any precedent when referring to this general principle. In addition, the Court found an exception to it by ascertaining another general principle, namely, the general principle according to which the Court should not penalise a defect in a procedural act which the applicant could easily remedy. The Court said that “[i]t is the case that the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings. However, the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the applicant could easily remedy” (at ¶26).

1998

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Judgment [1998] i.c.j. 115 (27 Feb.) “In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so; the subsequent coming into existence of the above-mentioned resolutions cannot affect its ­jurisdiction once established” (at ¶38). “The Court has already acknowledged, on several occasions in the past, that events subsequent to the filing of an application may ‘render an application without object’ […] and ‘therefore the Court is not called upon to give a decision thereon’” (at ¶46).

2002

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3 (14 Feb.) “The Court recalls that, according to its settled jurisprudence, its jurisdiction must be determined at the time that the act instituting proceedings was filed. The Court has the jurisdiction on the date the dispute was referred to it, it continues to do so regardless of subsequent events. Such events might lead to a finding that an application has subsequently become moot and to a decision not to proceed to judgment on the merits, but they cannot deprive the Court of jurisdiction” (at ¶26).

Digest of General Principles

2006

2008

2016

100

511

Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6 (3 Feb.) “[T]he Court recalls that it has consistently held that […] its jurisdiction must surely be assessed on the date of the filing of the act instituting proceedings” (at ¶54). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412 (18 Nov.) The Court in this decision referred to this norm as a ‘principle’. It said that “[t]he purpose of this jurisprudence is to prevent the needless proliferation of proceedings. No such consideration obtained in 2004 to justify the Court departing at that time from the principle holding that its jurisdiction must be established at the date of filing of the applications” (at ¶89). Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (­Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 100 (17 Mar.) The Court in this decision referred to this notion as a ‘rule’, and not a ‘principle’. The Court said that it “recalls that the date at which its jurisdiction has to be established is the date on which the application is filed with the Court […] One consequence of this rule is that ‘the removal, after an application has been filed, of an element on which the Court’s jurisdiction is dependent does not and cannot have any retroactive effect’ […] Thus, even if the treaty provision by which jurisdiction is conferred on the Court ceases to be in force between the applicant and the respondent, or either party’s declaration under Article 36, paragraph 2, of the Statute of the Court expires or is withdrawn, after the application has been filed, that fact does not deprive the Court of jurisdiction” (at ¶31). General principle that subsequent withdrawal of the jurisdictional instruments, after the courts has already established jurisdiction, is without effect Type: Procedural Underpinning: Judicial Recurrence: none

512

2008

101

Digest of General Principles

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412 (18 Nov.) “The Court recalls that according to its established jurisprudence, if a title of jurisdiction is shown to have existed at the date of the institution of proceedings, any subsequent lapse or withdrawal of the jurisdictional instrument is without effect on the jurisdiction of the Court. The principle was established in the Nottebohm case […] which related to an acceptance of compulsory jurisdiction (under the optional clause of Article 36, paragraph 2, of the Statute) which expired on a date subsequent to the institution of proceedings citing that acceptance as the basis of jurisdiction. It has subsequently been consistently applied (e.g., where a bilateral treaty relied on as jurisdictional basis had been terminated by the time the Court came to give judgment on the merits of the case” (at ¶95). General principle that the Court should decline to exercise jurisdiction if rights and interests of a third State would form the subjectmatter of any decision which the Court might take | ‘Monetary Gold’ principle The Court labelled this norm as a ‘principle’ in its 2011 decision. Type: Procedural Underpinning: Judicial Recurrence: 4 icj decisions

1954

Monetary Gold Removed from Rome in 1943 (Italy v. Fr., U.K. and U.S.), Preliminary Objections [1954] i.c.j. 19 (15 June) “The Court cannot decide such a dispute without the consent of Albania […] It has been suggested that Albania might have intervened […] Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania” (at 32). “Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without the consent of that third State, give a decision on that issue binding upon any State, either the third State, or any of the parties before it” (at 33).

Digest of General Principles

1992

2011

513

Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240 (26 June) In this case, the Court did not refer to a ‘principle’. It stated that “the absence of such a request [permission to intervene] in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. Where the Court is so entitled to act, the interests of the third State which is not a party to the case are protected by Article 59 of the Statute of the Court, which provides that ‘The decision of the Court has no binding force except between the parties and in respect of that particular case’” (at ¶54). Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644 (5 Dec.) The Court said that “the Respondent’s argument that the rights and interests of a third party (which it identifies as nato and/or the member States of nato) would form the subject-matter of any decision which the Court might take, with the result that the Court should decline to hear the case under the principle developed in the case of the Monetary Gold Removed from Rome in 1943, is misplaced. The present case can be distinguished from the Monetary Gold case” (at ¶43). The Court referred to this norm as the ‘Monetary Gold principle’ in its abstract (at 644; abstract).

2012

102

Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.). The Court said that “it is not necessary […] to rule on the question of whether the decisions of the Greek courts did themselves violate that immunity – something, moreover, which it could not do, since that would be to rule on the rights and obligations of a State, Greece, which does not have the status of party to the present proceedings” (at ¶127). General principle that the jurisdiction of the Court derives from a treaty Type: Procedural Underpinning: International Recurrence: none

514

2007

b 103

1973

1986

104

1952

Digest of General Principles

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) “A similar argument advanced by the Respondent is based on the principle that the jurisdiction of the Court derives from a treaty, namely the Statute of the Court” (at ¶137). Procedure before the Court General principles governing the judicial process Type: Procedural Underpinning: Judicial Recurrence: 2 icj decisions Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) The Court wrote in the abstract about the “[c]ompatibility review established by resolution 957(x) with general principles governing the judicial process” (at 166; abstract). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “[W]ithin the limits of its Statute and Rules, [the Court] has freedom in estimating the value of the various elements of evidence, though it is clear that general principles of judicial procedure necessarily govern the determination of what can be regarded as proved” (at ¶60). General principle of equality of the Parties (in judicial proceedings) Type: Procedural Underpinning: Judicial Recurrence: 6 icj decisions Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) The Court mentioned the ‘principle of equality’ in passim in relation to Iran’s conclusion of treaties with other States. It said that “[Iran] had commenced negotiations with these States with a view to replacing the denounced treaties by new treaties based on the principle of equality” (at 105).

Digest of General Principles

1956

1982

515

Judgments of the Administrative Tribunal of the ilo upon Complaints Made against Unesco, Advisory Opinion [1956] i.c.j. 77 (23 Oct.) “The principle of equality of the parties follows from the requirements of good administration of justice” (at 86). Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325 (20 July) The Court in this case considered the general principle of equality of the Parties, as provided for in Article 11 of the Statute of the Administrative Tribunal and Article 66 of the icj Statute (at 325; abstract, and at ¶29) and as part of “the requirements governing the judicial process” (at ¶31). It noted that it is one of the “elementary principles of judicial procedure” (at ¶59). “The Court now comes to the principle which, in its 1973 Advisory Opinion, it regarded as a requirement of the judicial process: the principle of equality of the parties. In that Opinion, the Court emphasized various applications of the principle; it referred to it first with regard to the decision by the Committee ‘after an examination of the opposing views of the interested parties’” (at ¶29). “In the present case, that is to say in advisory proceedings resulting from the application to the Committee of a member State, the problem of the implementation of the principle of equality does not give rise to any particular difficulty as regards the proceedings before the Court itself” (at ¶30). “[C]omparison of the review procedure with the requirements governing the judicial process, and thus in particular with the principle of equality of the parties, must also be made with regard to that stage of the review procedure which involves the intervention of the Committee” (at ¶31). “[I]t is certain that there is here a cause of inequality between the parties concerned in the review procedure, which results from the nature of the specialized organ created by the General Assembly, and from the rules governing its functioning” (at ¶32).

516

1986

Digest of General Principles

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “[T]he Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. The intention of Article 53 [of its Statute] was that in a case of non-appearance neither party should be placed at a disadvantage; therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage” (at ¶31). The Court said that it has to be more vigilant in the instances when only one party is present for it to properly administer the justice (ibid.). “The Court is bound by the relevant provisions of its Statute and its Rules relating to the system of evidence, provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties” (at ¶59). “Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes. On the contrary, the principle of the equality of the Parties requires that it be given that opportunity. It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata” (at ¶284).

2012

2014

Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), Advisory Opinion [2012] i.c.j. 10 (1 Feb.) “As the Court said, on the only other occasion in which a specialized agency sought an opinion in terms of Article xii of the Annex to the Statute of the iloat, ‘[t]he principle of equality of the parties follows from the requirements of good administration of justice’ […] That principle must now be understood as including access on an equal basis to available appellate or similar remedies unless an exception can be justified on objective and reasonable grounds” (at ¶44). Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Austl.), Order [2014] i.c.j. 147 (3 Mar.) The Court said that the “equality of the parties must be preserved when they are involved […] in the process of settling an international dispute by peaceful means” (at ¶27).

Digest of General Principles

105

1974

1999 106

1972

517

General principle of audi alteram partem Type: Procedural Underpinning: Judicial Recurrence: 2 icj decisions Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253 (20 Dec.) “Although as a judicial body the Court is conscious of the importance of the principle expressed in the maxim audi alteram partem, it does not consider that this principle precludes the Court from taking account of statements made subsequently to the oral proceedings, and which merely supplement and reinforce matters already discussed in the course of the proceedings, statements with which the Applicant must be familiar” (at ¶33). Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31 (25 Mar.) “[T]here is no need for the Court to stress that it has and will strictly apply the principle of audi alteram partem” (at ¶15). General principle that a party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established Type: Procedural Underpinning: Judicial Recurrence: none Appeal Relating to the Jurisdiction of the icao Council (India v. Pak.), Judgment [1972] i.c.j. 46 (18 Aug.) “An essential point of legal principle is involved here, namely that a party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established” (at ¶18). The Court noted this finding in relation to its content that “it [should not] be overlooked that for the party raising a jurisdictional objection, its significance will also lie in the possibility it may offer of avoiding, not only a decision, but even a hearing, on the merits, – a factor which is of prime importance in many cases” (ibid.).

518 107

1929

Digest of General Principles

General principle of estoppel Type: Procedural Underpinning: Judicial Recurrence: 1 pcij decision and 10 icj decisions Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) “In the latter view, the principle known in Anglo-Saxon law as estoppel is sought to be applied. The argument developed by the Serb-CroatSlovene Government in this connection leads the Court to consider the circumstances” (at 38). “[W]hen the requirements of the principle of estoppel to establish a loss of right are considered, it is quite clear that no sufficient basis has been shown for applying the principle in this case” (at 39).

1969

1984

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) Without referring to this general principle as a ‘principle’, the Court stated that “[h]aving regard to these considerations of principle, it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention, – that is to say if the Federal Republic were now precluded from denying the applicability of the conventional régime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case” (at ¶30). Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246 (12 Oct.) “The Chamber observes that in any case the concepts of acquiescence and estoppel, irrespective of the status accorded to them by international law, both follow from the fundamental principles of good faith and equity […] estoppel is linked to the idea of preclusion. According to one view, preclusion is in fact the procedural aspect and estoppel the substantive aspect of the same principle” (at ¶130). “To conclude from this, however, in legal terms, that by its delay the United States had tacitly consented to the Canadian contentions, or

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had forfeited its rights is, in the Chamber’s opinion, overstepping the conditions required for invoking acquiescence or estoppel” (at ¶142). “It is apparently the Judgment in the North Sea Continental Shelf cases that gave the most precise definition of the conditions for invoking the doctrine of estoppel; but even disregarding the element of detriment or prejudice caused by a State’s change of attitude, which distinguishes estoppel stricto sensu from acquiescence, it nevertheless presupposes clear and consistent acceptance” (at ¶145).

1984

1989

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) “The Court does not need to deal at length with the contention based on estoppel. The Court has found that the conduct of Nicaragua, having regard to the very particular circumstances in which it was placed, was such as to evince its consent to be bound in such a way as to constitute a valid mode of acceptance of jurisdiction […] It is thus evident that the Court cannot regard the information obtained by the United States in 1943, or the doubts expressed in diplomatic contacts in 1955, as sufficient to overturn that conclusion, let alone to support an estoppel […] as the Court pointed out in the North Sea Continental Shelf cases […] estoppel may be inferred from the conduct, declarations and the like made by a State which not only clearly and consistently evinced acceptance by that State of a particular régime, but also had caused another State or States, in reliance on such conduct, detrimentally to change position or suffer some prejudice. The Court cannot regard Nicaragua’s reliance on the optional clause as in any way contrary to good faith or equity: nor can Nicaragua be taken to come within the criterion of the North Sea Continental Shelf case, and the invocation of estoppel by the United States of America cannot be said to apply to it” (at ¶51). Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15 (20 July) “[A]lthough it cannot be excluded that an estoppel could in certain circumstances arise from a silence when something ought to have been said, there are obvious difficulties in constructing an estoppel from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges” (at ¶54).

520

1990

1998

Digest of General Principles

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92 (13 Sept.) “So far as Nicaragua relies on estoppel, the Chamber will only say that it sees no evidence of some essential elements required by estoppel: a statement or representation made by one party to another and reliance upon it by that other party to his detriment or to the advantage of the party making it” (at ¶63). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) “An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice […] These conditions are not fulfilled in this case” (at ¶57). “The Court points out that the conditions laid down in its case-law for an estoppel to arise […] are not fulfilled in this case” (at ¶71).

2000

2007

Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] i.c.j. 12 (21 June) “The Court cannot therefore accept the argument in the present case based on estoppel” (at ¶45). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) “The Court does not therefore find it necessary to examine the argument of the Applicant that the failure of the Respondent to advance at the time the reasons why it now contends that it was not a party to the Genocide Convention might raise considerations of estoppel, or forum prorogatum” (at ¶140). “The same reasoning applies to the argument that the Respondent is estopped from raising the matter at this stage, or debarred from doing so by considerations of good faith” (at ¶103).

Digest of General Principles

2008

2018

108

1925

521

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] i.c.j. 12 (23 May) “[T]he Court points out that a party relying on an estoppel must show, among other things, that it has taken distinct acts in reliance on the other party’s statement […] While some of the conduct in the 1970s, which the Court next reviews, has a different character, Singapore does not contend that those actions were taken in reliance on the Johor response given in its letter of 1953. The Court accordingly need not consider whether other requirements of estoppel are met” (at ¶228). Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment [2018] i.c.j. (1 Oct.) “The Court recalls that the ‘essential elements required by estoppel’ are ‘a statement or representation made by one party to another and reliance upon it by that other party to his detriment or to the advantage of the party making it’ […] When examining whether the conditions laid down in the Court’s jurisprudence for an estoppel to exist were present with regard to the boundary dispute between Cameroon and Nigeria, the Court stated: ‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice’ […] The Court finds that in the present case the essential conditions required for estoppel are not fulfilled” (at ¶¶158–159). General principle that a question referred to the Court for an advisory opinion is communicated to governments likely to be able to supply relevant information Type: Procedural Underpinning: International Recurrence: none Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12 (21 Nov.) “The notifications to Great Britain and Turkey were further based on the principle laid down in the Rules of the Court, in accordance with which a question referred to the Court for advisory opinion is communicated to governments likely to be able to supply information in ­regard to it” (at 8).

522

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109

General principle that the Court should not penalise a defect in a procedural act which the applicant can easily remedy Type: Procedural Underpinning: Judicial Recurrence: 2 icj decisions

1996

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) In this case, the Court said that “even if Bosnia and Herzegovina were to be treated as having acceded to the Genocide Convention, which would mean that the Application could be said to be premature by nine days when filed on 20 March 1993, during the time elapsed since then, Bosnia and Herzegovina could, on its own initiative, have remedied the procedural defect by filing a new Application. It therefore matters little that the Application had been filed some days too early” (at ¶24). The Court noted that this general principle is an exception to the general principle that the Court normally bases its jurisdiction on the date of the filing of the act instituting the proceedings (classified under the Digest number 99). The Court said that “[i]t is the case that the jurisdiction of the Court must normally be assessed on the date of the filing of the act instituting proceedings. However, the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the applicant could easily remedy” (at ¶26). In confirming the existence of this general principle, the Court relied on several precedents. It said that “in the case concerning the Mavrommatis Palestine Concessions, the Permanent Court said: ‘Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant’s suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications’ […]

Digest of General Principles

523

The same principle lies at the root of the following dictum of the Permanent Court of International Justice in the case concerning Certain German Interests in Polish Upper Silesia: ‘Even if, under Article 23, the existence of a definite dispute were necessary, this condition could at any time be fulfilled by means of unilateral action on the part of the applicant Party. And the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the Party concerned’ […] The present Court applied this principle in the case concerning the Northern Cameroons […] as well as Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) when it stated: ‘It would make no sense to require Nicaragua now to institute fresh proceedings based on the Treaty, which it would be fully entitled to do’” (at ¶26).

2006

Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6 (3 Feb.) In this case, the Court did not refer to this notion as a ‘principle’. The Court stated that it “recalls that it has consistently held that, while its jurisdiction must surely be assessed on the date of the filing of the act instituting proceedings […] the Court should not, however, penalize a defect in procedure which the Applicant could easily remedy” (at ¶54). The Court referred only to its 1996 Application of the Convention on the Prevention and Punishment of the Crime of Genocide decision.

110

1939

General principle that a Party to legal proceedings must abstain from any measure which might aggravate or extend the dispute (provisional measures) Type: Procedural Underpinning: International Recurrence: appearing in 1 pcij and 1 icj decision Electricity Company of Sofia and Bulgaria, Order [1939] p.c.i.j. (ser.A/B) No. 79 (5 Dec.) “[T]he above quoted provision of the Statute [Article 41(1)] applies the principle universally accepted by international tribunals and likewise laid down in many conventions to which Bulgaria has been a

524

Digest of General Principles

­ arty – to the effect that the parties to a case must abstain from any p measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute” (at 199). 2001

LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) The Court mentioned in its abstract the ‘principle that a party to legal proceedings must abstain from any measure which might aggravate or extend the dispute’ (at 467; abstract). “A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance is the existence of a principle which has already been recognized by the Permanent Court of International Justice […] measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented” (at ¶103).

111

1932

1938

General principle of reciprocity Type: Procedural Underpinning: International, Judicial Recurrence: 3 pcij and 10 icj decisions Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44 (4 Feb.) In this case, the Court referred to reciprocal national treatment, and not to reciprocity in the sense of establishing the Court’s jurisdiction (at 34). The Court referred to the “principle of reciprocity” as contained in the second Polish draft (ibid.). However, this variation on the general principle of reciprocity is of a substantive (not a procedural) type. Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74 (14 June) In this case, the Court referred to the ‘condition’ of reciprocity. The Court said that “as a consequence of the condition of reciprocity situated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the Parties” (at 22).

Digest of General Principles

525

“The French Government placed it on September 7th, 1931, the date on which its declaration, being subject to reciprocity, became operative in regard to Italy, as a result of the deposit of the latter’s ratification; on the other hand, the Italian Government declared for the date of the deposit of the French instrument of ratification, namely, April 25th, 1931, contending that the limitation ratione temporis only appeared in the declaration of France” (at 25).

1939

Electricity Company of Sofia and Bulgaria, Preliminary Objections [1939] p.c.i.j. (ser.A/B) No. 77 (4 Apr.) “Although this limitation does not appear in the Bulgarian Government’s own declaration, it is common ground that, in consequence of the condition of reciprocity laid down in paragraph 2 of Article 36 of the Court’s Statute and repeated in the Bulgarian declaration, it is applicable as between the Parties” (at 81). In this case, the Bulgarian declaration contained the condition of reciprocity (at 80).

1952

1957

Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) “In the present case the jurisdiction of the Court depends on the Declarations made by the Parties under Article 36, paragraph 2, on condition of reciprocity […] By these Declarations, jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it. As the Iranian Declaration is more limited in scope than the United Kingdom Declaration, it is the Iranian Declaration on which the Court must base itself. This is common ground between the Parties” (at 103). Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9 (6 July) The Court referred to this general pricniple as a ‘condition’ rather than a ‘principle’, and relied on Article 36(2) of its Statute. It said “that in the present case the jurisdiction of the Court depends upon the Declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute on condition of reciprocity; and that, since two unilateral declarations are involved, such jurisdiction is conferred upon the Court onlÿ to the extent to which the Declarations coincide in conferring it” (at 23).

526

Digest of General Principles

“[T]he common will of the Parties, which is the basis of the Court’s ­jurisdiction, exists within these narrower limits indicated by the French reservation. Following in this connection the jurisprudence of the Permanent Court of International Justice […] the Court has reaffirmed this method of defining the limits of its jurisdiction” (at 23–24). “In accordance with the condition of reciprocity to which acceptance of the compulsory jurisdiction is made subject in both Declarations and which is provided for in Article 36, paragraph 3, of the Statute, Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes understood by Norway to be essentially within its national jurisdiction” (at 24). “The Court considers that the Norwegian Government is entitled, by virtue of the condition of reciprocity, to invoke the reservation contained in the French Declaration of March 1st, 1949; that this reservation excludes from the jurisdiction of the Court the dispute which has been referred to it by the Application of the French Government; that consequently the Court is without jurisdiction to entertain the Application” (at 27).

1957

Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125 (26 Nov.) The Court referred to reciprocity as to a ‘basic principle’ (at 144). “[A]s the result of the operation of reciprocity, any jurisdictional rights which it may thus continue to claim for itself can be invoked against it by the other Signatories, including India” (at 144). The Court also said that “when a case is submitted to the Court, it is always possible to ascertain what are, at that moment, the reciprocal obligations of the Parties in accordance with their respective Declarations” (at 143). “Neither can it be admitted, as a relevant differentiating factor, that while in the case of total denunciation the denouncing State can no longer invoke any rights accruing under its Declaration, in the case of a partial denunciation under the terms of the Third Condition Portugal can otherwise continue to claim the benefits of its Acceptance. For, as

Digest of General Principles

527

the result of the operation of reciprocity, any jurisdictional rights which it may thus continue to claim for itself can be invoked against it by the other Signatories, including India” (at 144). “Neither can the Court accept the view that the Third Condition is inconsistent with the principle of reciprocity inasmuch as it renders inoperative that part of paragraph 2 of Article 36, which refers to Declarations of Acceptance of the Optional Clause in relation to States accepting the ‘same obligation’. It is not necessary that the ‘same obligation’ should be irrevocably defined at the time of the deposit of the Declaration of Acceptance for the entire period of its duration. That expression means no more than that, as between States adhering to the Optional Clause, each and all of them are bound by such identical obligations as may exist at any time during which the Acceptance is mutually binding” (at 144). “The principle of reciprocity forms part of the system of the Optional Clause by virtue of the express terms both of Article 36 of the Statute and of most Declarations of Acceptance, including that of India. The Court has repeatedly affirmed and applied that principle in relation to its own jurisdiction. It did so, in particular, in the case of Certain Norwegian Loans […] where it recalled its previous practice on the subject. However, it is clear that the notions of reciprocity and equality are not abstract conceptions. They must be related to some provision of the Statute or of the Declarations” (at 145). The Court also said that “the Statute does not prescribe any interval between the deposit by a State of its Declaration of Acceptance and the filing of an Application by that State, and that the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute. As the manner of the filing of the Portuguese Application did not in respect of the Third Portuguese Condition deprive India of any right of reciprocity under Article 36 of the Statute” (at 147–148).

1959

Interhandel (Switz. v. U.S.), Preliminary Objections [1959] i.c.j. 6 (21 Mar.) The Court referred to reciprocity in this decision as a ‘principle’ in its abstract (at 6; abstract).

528

Digest of General Principles

The Court explained the functioning of the general principle of reciprocity. “Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration. For example, Switzerland, which has not expressed in its Declaration any reservation ratione temporis, while the United States has accepted the compulsory jurisdiction of the Court only in respect of disputes subsequent to August 26th, 1946, might, if in the position of Respondent, invoke by virtue of reciprocity against the United States the American reservation if the United States attempted to refer to the Court a dispute with Switzerland which had arisen before August 26th, 1946. This is the effect of reciprocity in this connection. Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends. It cannot justify a State, in this instance, the United States, in relying upon a restriction which the other Party, Switzerland, has not included in its own Declaration” (at 23).

1978

Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) The Court, without referring to a ‘principle’, said that “Turkey’s invocation of the reservation on the basis of reciprocity has the effect of excluding the present dispute from the application of Article 17 of the Act” (at ¶90).

1984

Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene [1984] i.c.j. 3 (21 Mar.) In this case, the Court referred to reciprocity as one of “the fundamental principles underlying its Jurisdiction”, alongside the general principles of consent and equality of States (at ¶35).

1984

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) The Court considered the ‘effect of reciprocity on declarations containing differing provisions for termination’ (at 392; abstract). It did not refer to this norm as a ‘principle’ but as a ‘concept’. The Court said that “the Nicaraguan Declaration contains no express restriction at all. It is therefore clear that the United States is not in a

Digest of General Principles

529

position to invoke reciprocity as a basis for its action in making the 1984 notification which purported to modify the content of the 1946 Declaration. The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. It appears clearly that reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration, whatever its scope, limitations or conditions” (at ¶62). “[S]ince the United States purported to act on 6 April 1984 in such a way as to modify its 1946 Declaration with sufficiently immediate effect to bar an Application filed on 9 April 1984, it would be necessary, if reciprocity is to be relied on, for the Nicaraguan Declaration to be terminable with immediate effect. But the right of immediate termination of declarations with indefinite duration is far from established” (at ¶63). “The United States argument attributes to the concept of reciprocity, as embodied in Article 36 of the Statute, especially in paragraphs 2 and 3, a meaning that goes beyond the way in which it has been interpreted by the Court, according to its consistent jurisprudence. That jurisprudence supports the view that a determination of the existence of the ‘same obligation’ requires the presence of two parties to a case, and a defined issue between them, which conditions can only be satisfied when proceedings have been instituted” (at ¶64). “The coincidence or interrelation of those obligations thus remain in a state of flux until the moment of the filing of an application instituting proceedings. The Court has then to ascertain whether, at that moment, the two States accepted ‘the same obligation’ in relation to the subjectmatter of the proceedings; the possibility that, prior to that moment, the one enjoyed a wider right to modify its obligation than did the other, is without incidence on the question” (at ¶64).

1986

Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) The Chamber mentioned reciprocity in the context of the Parties accepting the conclusions of the Organization of African Union ­ ­Mediation Commission, and not in terms of the Court’s jurisdiction.

530

Digest of General Principles

The Court said that “there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity” (at ¶40).

1998

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) The Court referred to a ‘condition of reciprocity’ (at 275; abstract) and a ‘rule’ of reciprocity (at ¶43). “The Court has on numerous occasions had to consider what meaning it is appropriate to give to the condition of reciprocity in the implementation of Article 36, paragraph 2, of the Statute. As early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, ‘jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it’ […] The Court applied that rule again in the case of Certain Norwegian Loans […] and clarified it in the Interhandel case” (at ¶43). The Court said that reciprocity “simply requires that the Court ascertain whether, at the time of filing the Application instituting proceedings ‘the two States accepted ‘the same obligation’ in relation to the subject-matter of the proceedings’” [referring to Military and Paramilitary Activities]” (at ¶43). “In the light of this practice, the additional phrase of the sentence, ‘that is to say, on the sole condition of reciprocity’ must be understood as explanatory and not adding any further condition. This interpretation is ‘in harmony with a natural and reasonable way of reading the text’ […] and Nigeria’s condition of reciprocity cannot be treated as a reservation ratione temporis” (¶45).

2008

Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) The Court referred to reciprocity as a ‘principle’ and a ‘concept’. However, reciprocity in this decision is not referred to in relation to ­establishing its own jurisdiction, but as part of “the contention that the

Digest of General Principles

531

execution by one State of a request for mutual assistance requires as a consequence the other State to do the same” (at ¶119). “The Court observes that the Convention nowhere provides that the granting of assistance by one State in respect of one matter imposes on the other State the obligation to do likewise when assistance is requested of it in turn. The Court accordingly considers that Djibouti cannot rely on the principle of reciprocity in seeking execution of the international letter rogatory it submitted to the French judicial authorities” (at ¶119). 112

1966

113

1933

General principle of distinguishing the preliminary objections phase from the merits phase Type: Procedural Underpinning: Judicial Recurrence: none South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6 (18 July) “It is a universal and necessary, but yet almost elementary principle of procedural law that a distinction has to be made between, on the one hand, the right to activate a court and the right of the court to examine the merits of the claim, – and, on the other, the plaintiff party’s legal right in respect of the subject-matter of that which it claims, which would have to be established to the satisfaction of the Court” (at ¶64). General principle that usually each Party bears its cost of the contentious proceedings before international tribunals Type: Procedural Underpinning: International, Judicial Recurrence: 1 pcij decision and 4 icj decisions Appeal from a judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University), Judgment [1933] p.c.i.j. (ser.A/B) No. 61 (15 Dec.) In this case, the Court referred to the provision of Article 64 of its Statute as a ‘general rule’. The Court said that it “is of opinion that there is no occasion, in the proceedings instituted by the Application of the Czechoslovak Government of May 3rd, 1933, to depart from the general rule of Article 64 of the Statute, to the effect that, unless otherwise

532

Digest of General Principles

decided by the Court, each Party shall bear its own costs” (at 248, 249; holding).

1973

Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) The Court referred to this norm as a ‘principle’ and only compared it to (as opposed to equating it with) Article 64 of its Statute. The Court said that “[a]ccount must also be taken of the basic principle regarding the question of costs in contentious proceedings before international tribunals, to the effect that each party shall bear its own in the absence of a specific decision of the tribunal awarding costs (cf. Article 64 of the Statute of the Court). An award of costs in derogation of this general principle, and imposing on one of the parties the obligation to reimburse expenses incurred by its adversary, requires not only an express decision, but also a statement of reasons in support. On the other hand, the decision merely to allow the general principle to apply does not necessarily require detailed reasoning, and may even be adopted by implication. It follows that on this point also the Judgement of the Administrative Tribunal cannot be said to be open to challenge on the basis of inadequate reasoning, as contended by the ­applicant” (at ¶98).

1999

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31 (25 Mar.) The Court referred to its Review of Judgment No. 158, but did not refer to this norm as a ‘principle’. The Court said that “Article 64 of the Statute provides that ‘[u]nless otherwise decided by the Court, each party shall bear its own costs’. This provision is given effect by Article 97 of the Rules of Court. While anticipating the possibility of exceptions, in circumstances which it does not specify, Article 64 confirms the ‘basic principle regarding the question of costs in contentious proceedings before international tribunals, to the effect that each party shall bear its own’” (at ¶18). In the holding, the Court “[r]eject[ed] Cameroon’s request that Nigeria bear the additional costs caused to Cameroon by the above-mentioned request for interpretation” (at ¶19; holding).

Digest of General Principles

2012

533

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324 (19 June) The Court referred to this general principle as to a ‘general rule’. “The Court recalls that Article 64 of the Statute provides that, ‘[u]nless otherwise decided by the Court, each party shall bear its own costs’. While the general rule has so far always been followed by the Court, Article 64 implies that there may be circumstances which would make it appropriate for the Court to allocate costs in favour of one of the parties. However, the Court does not consider that any such circumstances exist in the present case. Accordingly, each Party shall bear its own costs” (at ¶60). The Court “[r]eject[ed] the claim of the Republic of Guinea concerning the costs incurred in the proceedings” (at ¶61; holding).

2015

Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665 (16 Dec.) The Court considered this norm only as part of Article 64 of its Statute. It said that “[a]ccording to Article 64 of the Statute, ‘[u]nless otherwise decided by the Court, each party shall bear its own costs’. This Article provides that as a rule, costs are not awarded to any of the parties, but gives the Court the power to order that one of them will pay some or all of the costs. While the breach by Nicaragua of its obligations under the 2011 Order necessitated Costa Rica engaging in new proceedings on provisional measures, the Court finds that, taking into account the overall circumstances of the case, an award of costs to Costa Rica, as the latter requested, would not be appropriate” (at ¶144). The Court, therefore, “[r]eject[ed] Costa Rica’s request that Nicaragua be ordered to pay costs incurred in the proceedings” (at ¶229; holding).

114

General principle that a Party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established Type: Procedural Underpinning: Judicial Recurrence: none

534

1972

115

1999

Digest of General Principles

Appeal Relating to the Jurisdiction of the icao Council (India v. Pak.), Judgment [1972] i.c.j. 46 (18 Aug.) The Court in this decision only noted that “[a]n essential point of legal principle is involved here, namely that a party should not have to give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established” (at 56). General principle that immunity has to be expeditiously decided in limine litis Type: Procedural Underpinning: Judicial Recurrence: none Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion [1999] i.c.j. 62 (29 Apr.) The Court said that “[p]reliminary question [on immunity from legal process ‘of every kind’ within the meaning of Section 22(b) of the Convention …] must be expeditiously decided in limine litis” (at 63; abstract). “By necessary implication, questions of immunity are therefore preliminary issues which must be expeditiously decided in limine litis. This is a generally recognized principle of procedural law, and Malaysia was under an obligation to respect it” (at ¶63). The Court in this case said that “[t]he Malaysian courts did not rule in limine litis on the immunity of the Special Rapporteur […] thereby nullifying the essence of the immunity rule contained in Section 22(b). Moreover, costs were taxed to Mr. Cumaraswamy while the question of immunity was still unresolved. As indicated above, the conduct of an organ of a State – even an organ independent of the executive ­power – must be regarded as an act of that State. Consequently, Malaysia did not act in accordance with its obligations under international law” (at ¶63). The Court held “[t]hat the Malaysian courts had the obligation to deal with the question of immunity from legal process as a preliminary issue to be expeditiously decided in limine litis” (at ¶67; holding).

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1984

117

1924

1950

535

Functioning of the Court | Court’s Competence General principle that the Court is not required to decline its judicial task merely because the question before the Court is intertwined with a political question Type: Procedural Underpinning: Judicial Recurrence: none Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) The Court interpreted Nicaragua’s submissions as referring to “the principle that the Court is not required to decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects and that the Court should not decline its essentially judicial task merely because the question before the Court is intertwined with political questions” (at ¶104). The Court continued by recalling “that in the United States Diplomatic and Consular Staff in Tehran case it ‘pointed out that no provision of the Statute or Rules contemplates that the Court should decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects, however important’” (at ¶105). General principle of non ultra petita Type: Procedural Underpinning: Judicial Recurrence: 1 pcij decision and 5 icj decisions Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A), No. 2 (30 Aug.) The Court did not refer to this norm as a ‘principle’ and merely alluded to its existence by noting that “bearing in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given” (at 16). Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colom. v. Peru), Judgment [1950] i.c.j. 395 (27 Nov.) The Court stated that “[t]o decide whether the first requirement stated above is fulfilled, one must bear in mind the principle that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not

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included in those submissions. The three questions raised in this proceeding by the Colombian Government must be considered in the light of this principle” (at 402).

1973

Application for Review of Judgment No. 158 of the United Nations ­Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) The Court referred to this norm as a ‘principle’ and relied on the Request for Interpretation of the Judgment of 20 November 1950. The Court observed that “[t]hese circumstances suffice to explain why the Court is unable to accept the contention that the Administrative Tribunal failed to exercise its jurisdiction in that it did not enquire into the situation in the Yemen office. No tribunal can be fairly accused of failure to have exercised the jurisdiction vested in it on the ground that it failed to make an inquiry or a finding of fact which was not required in order to adjudicate on the case presented to it, and which none of the parties asked it to make. One must bear in mind the principle previously recalled by the Court, that it is the duty of an international ­tribunal ‘not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not indicated in those submissions’” (at ¶87).

1992

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) The Chamber referred to this general principle as ‘ne ultra petita’. “The Chamber […] considers that neither the principle ne ultra petita, nor any suggested acquiescence by Honduras in the boundary asserted by it, debars the Chamber from enquiry whether the ‘mountain of Cayaguanca’ might have extended further south, so as to be coterminous with the eastern boundary of the Jupula title” (at ¶126).

2002

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3 (14 Feb.) The Court referred to this general principle as a ‘rule’ and a ‘­well-established principle’. In this case, this general principle did not limit the task of the Court, as it had been suggested by the Parties. The Court said that “[it] would recall the well-established principle that ‘it is the duty of the Court not

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only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions’ […] While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning” (at ¶43). 2013

2013

118

1982

Frontier Dispute (Burk. Faso/Niger), Judgment [2013] i.c.j. 44 (16 Apr.) “[T]he principle whereby the Court does not rule ultra petita does not prevent it, in this case, from attributing that territory to one or the other Party, since the Special Agreement entrusts it with the task of fully determining the course of the frontier between the Tong-Tong astronomic marker and the beginning of the Botou bend (at ¶74). Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281 (11 Nov.) “The principle of non ultra petita is well established in the jurisprudence of the Court […] and is one reason why the claims contained in the final submissions of the Parties in the original case are of relevance in interpreting the 1962 Judgment. Nevertheless, that principle cannot justify an interpretation which runs counter to the terms of the 1962 Judgment. The Court in 1962 necessarily made an assessment of the scope of the petitum before it; Article 60 of the Statute does not give the Court the power today to substitute a different assessment for that made at the time of the Judgment” (at ¶71). General principle of the sound administration of justice Type: Procedural Underpinning: Judicial Recurrence: 6 icj decisions Continental Shelf (Tunis./Libya), Judgment [1982] i.c.j. 18 (24 Feb.) The Court noted that equity, interpreted as the ‘direct emanation of the idea of justice’, is a general principle. The Court noted that “[e]quity as a legal concept is a direct emanation of the idea of justice” and that “the legal concept of equity [i.e., the emanation of the idea of justice] is a general principle directly applicable as law” (at ¶71).

538

1986

Digest of General Principles

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) The Court said that it “is bound by the relevant provisions of its Statute and its Rules relating to the system of evidence, provisions devised to guarantee the sound administration of justice, while respecting the equality of the parties […] Article 53 of the Statute therefore obliges the Court to […] safeguard the essential principles of the sound administration of justice” (at ¶59). The Court also observed that “[w]hen a State named as party to proceedings before the Court decides not to appear in the proceedings, or not to defend its case, the Court usually expresses regret, because such a decision obviously has a negative impact on the sound administration of justice” (at ¶27).

1999

2008

Legality of Use of Force (Yu. v. U.S.), Order [1999] i.c.j. 916 (2 June) “Whereas it follows from what has been said above that the Court manifestly lacks jurisdiction to entertain Yugoslavia’s Application; whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein; and whereas, within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice” (at ¶29). Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) “The purpose of this amendment [introduction of Article 38(5) into the Rules of the Court] was to allow a State which proposes to found the jurisdiction of the Court to entertain a case upon a consent thereto yet to be given or manifested by another State to file an application setting out its claims and inviting the latter to consent to the Court dealing with them, without prejudice to the rules governing the sound administration of justice” (at ¶63). Article 38(5) provides that ‘[w]hen the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application

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is made consents to the Court’s jurisdiction for the purposes of the case’ (Rules of the Court, art.38(5)).

2010

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639 (30 Nov.) “The Court has deemed these provisions [Articles 38(2), 40(1) and 49(1) of the Rules of the Court] ‘essential from the point of view of legal security and the good administration of justice’” (at ¶38). “In light of the fact that the Application instituting proceedings in the present case was filed in December 1998, the Court considers that the sound administration of justice requires that those proceedings soon be brought to a final conclusion, and thus that the period for negotiating an agreement on compensation should be limited” (at ¶164).

2012

Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), ­Advisory Opinion [2012] i.c.j. 10 (1 Feb.) “[C]oncerns have been raised about a central aspect of the good ­administration of justice: the principle of equality before the Court of the organization on the one hand and the official on the other” (at ¶35). “As the Court said, on the only other occasion in which a specialized agency sought an opinion in terms of Article xii of the Annex to the Statute of the iloat, ‘[t]he principle of equality of the parties follows from the requirements of good administration of justice’” (at ¶44, ­referring to its 1956 advisory opinion).

2013

Certain Activities carried out by Nicaragua in the Border Area (Nicar. v. Costa Rica), Order [2013] i.c.j. 184 (17 Apr.) “Where the Court, or its predecessor, has exercised its power to join proceedings, it has done so in circumstances where joinder was consonant not only with the principle of the sound administration of justice but also with the need for judicial economy” (at ¶12). “In view of the above, the Court, in conformity with the principle of the sound administration of justice and with the need for judicial economy, considers it appropriate to join the proceedings in the present case and in the Nicaragua v. Costa Rica case” (at ¶18).

540

Digest of General Principles

119

General principle that the Court (as a judicial body) is bound to ­remain faithful to the requirements of its judicial character even in giving advisory opinions Type: Procedural Underpinning: Judicial Recurrence: 1 pcij decision and 5 icj decisions

1923

Status of Eastern Carelia, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 5 (23 July) The Court did not mention a ‘principle’ in this respect, and it also relied on a modified notion of the above-stated general principle, namely, that it cannot depart from its essential rules guiding its activity as a Court even in handing down advisory opinions. “The question put to the Court is not one of abstract law, but concerns directly the main point of the controversy between Finland and Russia, and can only be decided by an investigation into the facts underlying the case. Answering the question would be substantially equivalent to deciding the dispute between the parties. The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court” (at 28–29).

1960

1962

Constitution of the Maritime Safety Committee of the I­ nter-Governmental Maritime Consultative Organization, Advisory Opinion [1960] i.c.j. 150 (8 June) The Court did not refer to this notion as a ‘principle’. It only stated that “[t]he Court as a judicial body is however bound, in the exercise of its advisory function, to remain faithful to the requirements of its judicial character” (at 153). Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] i.c.j. 151 (20 July) “The power of the Court to give an advisory opinion is derived from Article 65 of the Statute. The power granted is of a discretionary character. In exercising its discretion, the International Court of Justice, like the Permanent Court of International Justice, has always been guided by the principle which the Permanent Court stated in the case concerning the Status of Eastern Carelia on 23 July 1923: ‘The Court, being a Court of Justice, cannot, even in giving advisory opinions, ­depart from the essential rules guiding their activity as a Court’ […]

Digest of General Principles

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Therefore, and in accordance with Article 65 of its Statute, the Court can give an advisory opinion only on a legal question. If a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested” (at 155). The Court continued by stating that “even if the question is a legal one, which the Court is undoubtedly competent to answer, it may nonetheless decline to do so” (at 155).

1963

Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] i.c.j. 15 (2 Dec.) The Court applied in this case a slightly modified version of the general principle, namely, the general principle that even in giving advisory opinions, the Court cannot depart from the essential rules guiding its activity. The Court said that “[it], like the Permanent Court of International Justice, has always been guided by the principle which the latter stated in the case concerning the Status of Eastern Carelia on 23 July 1923: ‘The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court’” (at 30).

1973

1975

Application for Review of Judgment No. 158 of the United Nations ­Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) “Article 65 of the Statute is, however, permissive and, under it, the Court’s power to give an advisory opinion is of a discretionary character. In exercising this discretion, the Court has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions” (at ¶24). In confirming this general principle, the Court referred to its jurisprudence (ibid.). Western Sahara, Advisory Opinion [1975] i.c.j. 12 (16 Oct.) “In exercising this discretion [under Article 65(1) of its Statute to give an advisory opinion], the International Court of Justice, like the Permanent Court of International Justice, has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions” (at ¶23).

542 120

1927

1974

1986

Digest of General Principles

General principle of jura novit curia Type: Procedural Underpinning: Judicial Recurrence: 1 pcij decision and 3 icj decisions “Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10 (7 Sept.) The Court said that it is its task to “ascertain[] what the international law is” (at 31). The Court added that in fulfilling this task, “it has not confined itself to a consideration of the arguments put forward, but has included in its researches all precedents, teachings and facts to which it had access and which might possibly have revealed the existence of one of the principles of international law contemplated in the special agreement” (ibid.). Fisheries Jurisdiction (U.K. v. Ice.), Judgment [1974] i.c.j. 3 (25 July) The Court did not refer to this norm as a ‘principle’. It merely stated that “[i]t being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court” (at ¶17). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (cf. [1927] “Lotus” […]), so that the absence of one party has less impact” (at ¶29). “[T]he Court is not solely dependent for its decision on the argument of the Parties before it with respect to the applicable law: it is required to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute even if these rules have not been invoked by a Party” (at ¶266).

1990

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92 (13 Sept.) “[W]hatever its status in international law – a matter to be determined, if necessary, by the Chamber, on the basis of the principle of jura novit

Digest of General Principles

543

curia –, its possible application to the boundaries of Spanish colonial provinces would require to be proved” (at ¶311). 121

1987

d 122

General principle that the role of the Court in review proceedings is not to retry the case Type: Procedural Underpinning: Judicial Recurrence: none Application for Review of Judgment No. 333 of the United Nations ­Administrative Tribunal, Advisory Opinion [1987] i.c.j. 18 (27 May) “In the case of the Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, the Court established the principle that the role of the Court in review proceedings is not to retry the case, but added that this ‘does not mean that in an appropriate case, where the judgement has been challenged on the ground of an error on a question of law relating to the provisions of the Charter, the Court may not be called upon to review the actual substance of the decision’ […] It re-emphasized that ‘the Court’s proper role is not to retry the case and to attempt to substitute its own opinion on the merits for that of the Tribunal’ […] That principle must continue to guide the Court in the present case” (at ¶27). Standing before the Court General principle of diplomatic protection The Court in its earlier jurisprudence referred to this norm as a ‘principle’; in its later jurisprudence it omitted the reference to ‘principle’ and described it as ‘diplomatic protection’. Type: Procedural Underpinning: Judicial Recurrence: 4 pcij and 9 icj decisions

1924

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2 (30 Aug.) In this decision, the Court referred to this norm as a ‘principle’. “It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking

544

Digest of General Principles

up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law” (at 12). “The latter Power [Greece] is asserting its own rights by claiming from His Britannic Majesty’s Government an indemnity on the ground that M. Mavrommatis, one of its subjects, has been treated by the Palestine or British authorities in a manner incompatible with certain international obligations which they were bound to observe” (at 11–12).

1928

Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17 (13 Sept.) The Court referred to diplomatic protection in the context of reparation for expropriation of the individual. It said that regardless of the State seeking reparation as a consequence of the damage suffered by an individual, the State claimed its own right, and the dispute (and the reparation) remained a State-to-State dispute. “It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law” (at 27–28). “Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State” (at 28).

1929

Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) The Court referred to multiple ‘principles’ in relation to diplomatic protection. In this case, the Court clarified that States can invoke their right of diplomatic protection for violation of any international obligation, not limited to treaty breaches. “Before approaching the questions submitted to it, the Court feels that it should define, with reference to the provisions governing its jurisdiction and functions, the task entrusted to it by the Special Agreement. This is made necessary because of the fact that the jurisdiction which the Court is called upon to exercise under the Agreement between

Digest of General Principles

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France and the Serb-Croat-Slovene State. seems at first sight to constitute a departure from the principles which the Court, in previous judgments, has laid down with regard to the conditions under which a State may bring before it cases relating to the private rights of its nationals” (at 16). “[T]he Court has said on several occasions, and in particular in Judgments Nos.2 and 13, namely, that by taking up a case on behalf of its nationals before an international tribunal, a State is asserting its own right – that is to say, its right to ensure in the person of its subjects, respect for the rules of international law. Accordingly, in all cases with which the Court has so far had to deal and in which private interests have been involved, the State’s claim has been based upon an alleged breach of an international agreement” (at 17). In this case, however, the Court found that the dispute did not require the State’s reliance on diplomatic protection, as it “[wa]s between the Government of the Serb-Croat-Slovene Kingdom and that of the French Republic, the latter acting in the exercise of its right to protect its nationals” (at 18). The Court added that “[the true function of the Court] is to decide disputes between States or Members of the League of Nations on the basis of international law: Article 38 of the [Court’s] Statute contains a clear indication to this effect […] But it would be scarcely accurate to say that only questions of international law may form the subject of a decision of the Court” (at 19). 1934

1939

Cf. Oscar Chinn, Judgment [1934] p.c.i.j. (ser.A/B) No. 63 (12 Dec.) At issue before the Court in this case was the treatment of Chinn, a British national, by the Belgian government. The Court did not invoke or rely on the general principle of diplomatic protection. The Special Agreement submitted to the Court noted that the dispute arose between Belgium and United Kingdom “in respect of loss and damage alleged to have been sustained by Mr. Oscar Chinn, a British subject, as the result of certain measures taken and applied […] by the Belgian Government” (at 66–68). Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76 (28 Feb.) The Court relied on diplomatic protection as a ‘rule’ of international law and clarified that it is applicable only when a State is espousing the claim of its own (and not foreign) nationals.

546

Digest of General Principles

“In the opinion of the Court, the rule of international law on which the first Lithuanian objection is based is that in taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse” (at 16). In this case, the Court did not allow the State to rely on diplomatic protection, because domestic remedies had not been exhausted. In clarifying this general principle, the Court ascertained another general principle, namely, that of the bond of nationality.

1949

Reparation for Injuries Suffered in the Service of the United Nations, ­Advisory Opinion [1949] i.c.j. 174 (11 Apr.) “When the victim [United Nations official] has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organization. In such an event, competition between the State’s right of diplomatic protection and the Organization’s right of functional protection might arise, and this is the only case with which the Court is invited to deal” (at 185). “In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obligations towards it occurring in relation to the performance of his mission by that agent” (at 186). The Court found that the United Nations can bring a claim on behalf of its agent for injuries suffered by the victim or persons entitled through him, and by the United Nations itself. “[I]n the event of an agent of the United Nations in the performance of his duties suffering injury in

Digest of General Principles

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c­ ircumstances involving the responsibility of a Member State [and a State which is not a member], the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations” (at 187; holding).

1952

Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) The Court confirmed the existence of diplomatic protection for the proceedings before the Council and noted that in those proceedings the United Kingdom espoused the claim of its company, the AngloIranian Oil Company, Ltd., against Iran. “The United Kingdom, in submitting its dispute with the Iranian Government to the League Council, was only exercising its right of diplomatic protection in favour of one of its nationals. It was seeking redress for what it believed to be a wrong which Iran had committed against a juristic person of British nationality. The final report by the Rapporteur to the Council on the successful conclusion of a new concessionary contract between the Iranian Government and the Company gave ­satisfaction to the United Kingdom Government. The efforts of the United Kingdom Government to give diplomatic protection to a British national had thus borne fruit, and the matter came to an end with its removal from the agenda” (at 112). The Court found that it lacked jurisdiction to consider the case further (at 115; holding).

1955

Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4 (6 Apr.) “Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the State. As the Permanent Court of International Justice has said and has repeated, ‘by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law’” (at 24).



“[T]he issue which the Court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on

548

Digest of General Principles

the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court, is to place oneself on the plane of international law. It is international law which determines whether a State is entitled to exercise protection and to seise the Court” (at 20–21).

1970

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3 (5 Feb.) The Court confirmed that diplomatic protection enables the State where the company is incorporated to bring a claim to the Court; however, the same option does not extend to States whose nationals are shareholders of that same company. It found that “the general rule of international law [diplomatic protection] authorizes the national State of the company alone to make a claim” (at ¶88). “In the absence of any treaty on the subject between the Parties, this essential issue has to be decided in the light of the general rules of diplomatic protection” (at ¶36). The Court also added that “[d]iplomatic protection deals with a very sensitive area of international relations, since the interest of a foreign State in the protection of its nationals confronts the rights of the territorial sovereign, a fact of which the general law on the subject has had to take cognizance in order to prevent abuses and friction” (at ¶37).

2002

LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) The Court in this case did not deal with the case of diplomatic protection; the right of the State to institute proceedings on behalf of its national was provided within a treaty. “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission” (at ¶42). The Court in this case said that “[b]ased on the text of these provisions, the Court concludes that Article 36,

Digest of General Principles

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­ aragraph 1, creates individual rights, which, by virtue of Article 1 of p the Optional Protocol, may be invoked in this Court by the national State of the detained person” (at ¶77).

2004

Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12 (31 Mar.) The Court concluded that Mexico’s rights were violated under the ­Vienna Convention on Consular Relations (in addition to the rights of its nationals) and, therefore, Mexico did not need to resort to diplomatic protection in bringing the case to the Court. “It would further observe that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State: and of individual rights, Mexico may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1(b) […] Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection” (at ¶40).

2005

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) “The Court thus considers that this part of Uganda’s counter-claim concerns injury to the particular individuals in question and does not relate to a violation of an international obligation by the drc causing a direct injury to Uganda. The Court is of the opinion that in presenting this part of the counter-claim Uganda is attempting to exercise its right to diplomatic protection with regard to its nationals. It follows that Uganda would need to meet the conditions necessary for the exercise of diplomatic protection as recognized in general international law, namely the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies. The Court observes that no specific documentation can be found in the case file identifying the individuals concerned as Ugandan nationals. The Court thus finds that, this condition not being met” (at ¶333).

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“[T]he Court observes that Uganda’s second counter-claim aims at obtaining reparation for the injuries suffered by Uganda itself as a result of the alleged violations by the drc of Article 29 of the Vienna Convention on Diplomatic Relations. Therefore Uganda is not exercising diplomatic protection on behalf of the victims but vindicating its own rights under the Vienna Convention. Accordingly, the Court finds that the failure to exhaust local remedies does not pose a barrier to Uganda’s counter-claim under Article 29 of the Vienna Convention on Diplomatic Relations” (at ¶330).

2007

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582 (24 May) The Court defined diplomatic protection and declared Article 1 of the International Law Commission’s Draft articles on Diplomatic Protection to be reflective of customary international law. It said that it “recall[s] that under customary international law, as reflected in ­Article 1 of the draft Articles on Diplomatic Protection of the International Law Commission (hereinafter the ‘ilc’), ‘diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility’” (at ¶39). In this case, the Court confirmed that States of the company’s nationality are able to espouse the claims of their companies. It said that “only the State of nationality may exercise diplomatic protection on behalf of the company when its rights are injured by a wrongful act of another State” (at ¶61). The Court clarified that diplomatic protection does not encompass protection by substitution. “Since its dictum in the Barcelona traction case […] the Court has not had occasion to rule on whether, in international law, there is indeed an exception to the general rule ‘that the right of diplomatic protection of a company belongs to its national State’ […] which allows for protection of the shareholders by their own national State ‘by substitution’ […] The Court, having carefully examined State practice and decisions of international courts and tribunals in respect of diplomatic protection of associés and shareholders, is of the opinion that these do not reveal – at least at the present time – an

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exception in customary international law allowing for protection by substitution, such as is relied on by Guinea” (at ¶¶87, 89). Protection by substitution would be allowed as a means of last resort, when the company would be harmed by the State of its nationality. As the Court said, “[p]rotection ‘by substitution’ would therefore appear to constitute the very last resort for the protection of foreign investments” (at ¶88). “It is a separate question whether customary international law contains a more limited rule of protection by substitution, such as that set out by the ilc in its draft Articles on Diplomatic Protection, which would apply only where a company’s incorporation in the State having committed the alleged violation of international law ‘was required by it as a precondition for doing business there’ (Art. 11, para. (b))” (at ¶91). “The Court is bound to note that, in contemporary international law, the protection of the rights of companies and the rights of their shareholders, and the settlement of the associated disputes, are essentially governed by bilateral or multilateral agreements for the protection of foreign investments, such as the treaties for the promotion and protection of foreign investments, and the Washington Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of Other States, which created an International Centre for Settlement of Investment Disputes (icsid), and also by contracts between States and foreign investors. In that context, the role of diplomatic protection somewhat faded, as in practice recourse is only made to it in rare cases where treaty régimes do not exist or have proved inoperative. It is in this particular and relatively limited context that the question of protection by substitution might be raised” (at ¶88). The Court also clarified that “[i]n determining whether a company possesses independent and distinct legal personality, international law looks to the rules of the relevant domestic law” (at ¶61). The Court found that Guinea acquired standing before it on account of diplomatic protection for injury incurred by Diallo as a natural person and as the employee of his companies. However, Guinea was not able to intervene on behalf of Diallo’s companies, because the companies’ nationality was the same as that of the State violating their rights (i.e., the drc) (at ¶98; holding).

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In this case, the Court also noted that diplomatic protection encompasses violation of human rights. “Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights” (at ¶39).

2012

123

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324 (19 June) In this case, the Court emphasised that although State-to-State reparation would be received by Guinea, it should be given to its national, Mr. Diallo. “[T]he sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury” (at ¶57). General principle of exhaustion of domestic remedies This general principle was ascertained in conjunction with the general principle of diplomatic protection. Type: Procedural Underpinning: Judicial Recurrence: 3 pcij and 8 icj decisions

1929

1933

Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) The Court observed that “[t]here are cases – as the Court has already had occasion to observe in Judgment No. 8 – in which an action cannot be brought before an international tribunal when there are legal remedies still open to the individuals concerned” (at 19). Prince von Pless Administration, Order [1933] p.c.i.j. (ser.A/B) No. 52 (4 Feb.) In this order, the Court referred to the ‘principle as to the exhaustion of internal means of redress’. The Court said that “the Court does not consider it necessary to pass upon the question of the applicability of the principle as to the exhaustion of internal means of redress in the present Order since, in any event, it will certainly be an advantage to the Court, as regards the points which have to be established in the case, to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal

Digest of General Principles

553

upon the appeals brought by the Prince von Pless and now pending before that Tribunal; and as the Court must therefore arrange its procedure so as to ensure that this will be possible” (at 16).

1939

Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76 (28 Feb.) The Court did not refer to a ‘principle’. It stated that domestic remedies do not have to be exhausted if those remedies are not effective. “There can be no need to resort to the municipal courts if those courts have no jurisdiction to afford relief; nor is it necessary again to resort to those courts if the result must be a repetition of a decision already given” (at 18). “The Court […declared] that the objection regarding the ­non-exhaustion of the remedies afforded by municipal law is well founded, and declares that the claim presented by the Estonian Government cannot be entertained” (at 22; holding).

1959

Interhandel (Switz. v. U.S.), Preliminary Objections [1959] i.c.j. 6 (21 Mar.) The Court in this case referred to the exhaustion of domestic remedies in relation to the right of diplomatic protection. The Court said that “[t]he rule that local remedies must be exhausted before international proceedings may be instituted is a ­well-established rule of customary international law; the rule has been generally observed in cases in which a State has adopted the cause of its national whose rights are claimed to have been disregarded in another State in violation of international law. Before resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system. A fortiori the rule must be observed when domestic proceedings are pending” (at 27).

1988

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion [1988] i.c.j. 12 (26 Apr.) The Court noted that in arbitration proceedings under the United ­Nations Headquarters Agreement, there is no need to exhaust domestic remedies (resort to domestic courts).

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Digest of General Principles

“The Court must further point out that the alleged dispute relates solely to what the United Nations considers to be its rights under the Headquarters Agreement. The purpose of the arbitration procedure envisaged by that Agreement is precisely the settlement of such disputes as may arise between the Organization and the host country without any prior recourse to municipal courts, and it would be against both the letter and the spirit of the Agreement for the implementation of that procedure to be subjected to such prior recourse. It is evident that a provision of the nature of section 21 of the Headquarters Agreement cannot require the exhaustion of local remedies as a condition of its implementation” (at ¶41).

1989

Elettronica Sicula S.p.A. (elsi) (U.S. v. It.), Judgment [1989] i.c.j. 15 (20 July) “The Chamber has no doubt that the parties to a treaty can therein either agree that the local remedies rule shall not apply to claims based on alleged breaches of that treaty; or confirm that it shall apply. Yet the Chamber finds itself unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so. This part of the United States response to the Italian objection must therefore be rejected” (at ¶50). “The Chamber, however, has not found it possible in the present case to find a dispute over alleged violation of the fcn Treaty resulting in direct injury to the United States, that is both distinct from, and independent of, the dispute over the alleged violation in respect of Raytheon and Machlett” (at ¶51). “In the present case, likewise [as in Interhandel], the Chamber has no doubt that the matter which colours and pervades the United States claim as a whole, is the alleged damage to Raytheon and Machlett, said to have resulted from the actions of the Respondent. Accordingly, the Chamber rejects the argument that in the present case there is a part of the Applicant’s claim which can be severed so as to render the local remedies rule inapplicable to that part” (at ¶52). “[T]he local remedies rule does not, indeed cannot, require that a claim be presented to the municipal courts in a form, and with arguments, suited to an international tribunal, applying different law to

Digest of General Principles

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d­ ifferent parties: for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success” (at ¶59). “On the basis that the local remedies rule does apply in this case, this Judgment may now turn to the question whether local remedies were, or were not, exhausted by Raytheon and Machlett […] it was for Italy to demonstrate that there was nevertheless some local remedy that had not been tried; or at least, not exhausted” (at ¶¶54, 59). “It is never easy to decide, in a case where there has in fact been much resort to the municipal courts, whether local remedies have truly been ‘exhausted’. But in this case Italy has not been able to satisfy the Chamber that there clearly remained some remedy which Raytheon and Machlett, independently of elsi, and of elsi’s trustee in bankruptcy, ought to have pursued and exhausted. Accordingly, the Chamber will now proceed to consider the merits of the case” (at ¶63). 2001

2002

LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) “The United States argues further that Germany’s first submission, as far as it concerns its right to exercise diplomatic protection with respect to its nationals, is inadmissible on the ground that the LaGrands did not exhaust local remedies” (at ¶58). “The Court notes that it is not disputed that the LaGrands sought to plead the Vienna Convention in United States courts after they learned in 1992 of their rights under the Convention; it is also not disputed that by that date the procedural default rule barred the LaGrands from obtaining any remedy in respect of the violation of those rights. Counsel assigned to the LaGrands failed to raise this point earlier in a timely fashion. However, the ­United States may not now rely before this Court on this fact in order to preclude the admissibility of Germany’s first submission, as it was the United States itself which had failed to carry our [sic] its ­obligation under the Convention to inform the LaGrand brothers” (at ¶60). Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment [2002] i.c.j. 3 (14 Feb.) In this case, the Court noted that there is no need to rely on diplomatic protection because the State was claiming a breach of its own right

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(at ¶40). Therefore, the general principle of the exhaustion of domestic remedies was not applicable to this case. “The Court notes that the Congo has never sought to invoke before it Mr. Yerodia’s personal rights. It considers that, despite the change in professional situation of Mr. Yerodia, the character of the dispute submitted to the Court by means of the Application has not changed: the dispute still concerns the lawfulness of the arrest warrant issued on 11 April 2000 against a person who was at the time Minister for Foreign Affairs of the Congo, and the question whether the rights of the Congo have or have not been violated by that warrant. As the Congo is not acting in the context of protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies” (at ¶40). “In any event, the Court recalls that an objection based on non-­ exhaustion of local remedies relates to the admissibility of the application” (at ¶40).

2004

Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12 (31 Mar.) The Court in this case said that Mexico did not need to rely on diplomatic protection in bringing the claim to the Court because its own rights had also been violated under the Vienna Convention on Consular Protection. The Court found that in the case of a joint violation of the right of nationals and the right of the State itself by another State, no prior exhaustion of domestic remedies is needed. “It would further observe that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State: and of individual rights, Mexico may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1(b). The duty to exhaust local remedies does not apply to such a request” (at ¶40).

Digest of General Principles

2005

2007

557

Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) The Court in this case did not find an instance of diplomatic protection, because Uganda was “vindicating its own rights under the Vienna Convention” (at ¶330). The Court said that “[a]ccordingly, the Court finds that the failure to exhaust local remedies does not pose a barrier to Uganda’s counter-claim under Article 29 of the Vienna Convention on Diplomatic Relations, and the claim is thus admissible” (ibid.). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582 (24 May) The Court noted that it is for the applicant to prove the exhaustion of domestic remedies. “In matters of diplomatic protection, it is incumbent on the applicant to prove that local remedies were indeed exhausted or to establish that exceptional circumstances relieved the allegedly injured person whom the applicant seeks to protect of the obligation to exhaust available local remedies” (at ¶44). In this case, the Court rejected the preliminary objection to admissi­ bility raised by the Democratic Republic of Congo on account of­ non-exhaustion by Mr. Diallo of local remedies in relation to Diallo and his position as employee of the two companies (at ¶98; holding).

124

1939

General principle of the bond of nationality Type: Procedural Underpinning: Judicial, International Recurrence: 1 pcij decision and 2 icj decisions Panevezys-Saldutiskis Railway, Judgment [1939] p.c.i.j. (ser.A/B) No. 76 (28 Feb.) The Court ascertained this general principle in conjunction with the general principle of diplomatic protection. The Court said that “[diplomatic protection] is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic

558

Digest of General Principles

­ rotection that the right to take up a claim and to ensure respect for p the rules of international law must be envisaged” (at 16). 1955

Nottebohm (Liech. v. Guat.), Second Phase [1955] i.c.j. 4 (6 Apr.) The Court noted that “Guatemala has referred to a well-established principle of international law, which it expressed in Counter-­Memorial; where it is stated that ‘it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection’. This sentence is taken from a Judgment of the Permanent Court of International Justice […] which relates to the form of diplomatic protection constituted by international judicial proceedings” (at 13). “According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national” (at 23). “When one State has conferred its nationality upon an individual and another State has conferred its own nationality on the same person, it may occur that each of these States, considering itself to have acted in the exercise of its domestic jurisdiction, adheres to its own view and bases itself thereon in so far as its own actions are concerned. In so doing, each State remains within the limits of its domestic jurisdiction […] The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of its domestic jurisdiction. The question to be decided is whether that act has the international effect here under consideration” (at 21). The Court noted that international arbitrators “[had] given their preference to real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the persons concerned and one of the State’s whose nationality is involved” (at 22).

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The Court also said that “States [have to act] in conformity with the general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the ­defence of its citizens by means of protection as against their States” (at 23). In determining Nottebohm’s nationality the Court considered his habitual residence, the centre of his interests, his family ties, his participation in public life, and the attachment to a particular State by his children, among others (at 22). The Court found that Liechtenstein was not entitled to exercise diplomatic protection vis-à-vis Mr. ­Nottebohm against Guatemala and rejected the claim as inadmissible (at 26).

1970

125

1929

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Second Phase [1970] i.c.j. 3 (5 Feb.) The Court in this case made it clear that the general principle of the bond of nationality in relation to companies rests on the ‘genuine connection’ test. It found that this test is not absolute (at 42) and said that “[t]he traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office” (ibid.). General principle that only States or Members of the League of ­Nations can be parties in cases before the Court Type: Procedural Underpinning: International Recurrence: none Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) “Article 34 of the Statute expressly provides that ‘only States or Members of the League of Nations can be parties in cases before the Court’ […] this principle has its origin in Article 14 of the Covenant, the terms of which, especially if regard be had at the same time to both the officia1 versions, hardly admit of a doubt that the disputes of an international character contemplated therein are disputes between the actual Parties who submit them to the Court” (at 17). The Court related this general principle to Article 34 of its Statute and Article 14 of the Covenant of the League of Nations.

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e 126

Facts and Evidence General principle that maps have only informational value, and are not an evidence of a frontier, except when they are the physical expression of the will of the State Type: Substantive Underpinning: Judicial Recurrence: 2 icj decisions

2005

2007 127

1986

Frontier Dispute (Benin/Niger), Judgment [2005] i.c.j. 90 (12 July) The Chamber identified a ‘principle’ that guides it “in its assessment of the maps relied on by the Parties” (at ¶44). The general principle that the Court ascertained is that maps that acquire legal force are those that “‘fall into the category of physical expressions of the will of the State or States concerned’ […] [i]n other words, ‘except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a ­frontier’” (ibid.). Maps that do not acquire legal force only “constitute information which varies in accuracy from case to case” (ibid.). The Chamber give an example of “maps [that] are annexed to an official text of which they form an integral part” (ibid.). In conclusion, it noted that “[t]his principle will also guide the Chamber in its assessment of the maps relied on by the Parties in the present case” (ibid.). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) The Court said that maps without legal force cannot establish a territorial title (at ¶215). General principle that the facts on which its judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case Type: Procedural Underpinning: Judicial Recurrence: none Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) “The Court holds that general principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case” (at ¶58).

Digest of General Principles

128

1984

1986

561

General principle that litigant seeking to establish the existence of facts bears the burden of proving it | General principle of burden of proof | General principle of onus probandi incumbit actori Type: Procedural Underpinning: Judicial Recurrence: 19 icj decisions Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) The Court did not invoke a ‘principle’. It stated that “[u]ltimately, however, it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved, but is not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof” (at ¶101). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) The Court reiterated its 1984 pronouncement and stated that “[w]hile it is true that ‘ultimately […] it is the litigant seeking to establish a fact who bears the burden of proving it’ […] it is also for Mali to establish the facts underlying its claims, that is, to demonstrate that the villages were Sudanese at that time” (at ¶65). The Court did not apply this general principle in this case because there was not enough information available. “[T]he question is not such that, in the absence of other grounds for a decision, the principle of the onus of proof can be brought into play” (at ¶142).

1987

1998

Application for Review of Judgment No. 333 of the United Nations ­Administrative Tribunal, Advisory Opinion [1987] i.c.j. 18 (27 May) “The question whether, for example, the [United Nations Administrative] Tribunal made a correct application of the principle of the burden of proof […] does not appear to the Court to be one of law ‘relating to the provisions of the Charter of the United Nations’, and does not therefore require examination in the present Opinion” (at ¶73). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432 (4 Dec.) The Court stated that “a party seeking to assert a fact must bear the burden of proving it”, by referring to the 1984 Nicaragua decision (at ¶37).

562

1998

2002

Digest of General Principles

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) “It is the applicant which must bear the consequences of an application that gives an inadequate rendering of the facts and grounds on which the claim is based” (at ¶101). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) “[I]t is ‘the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved’ […] Thus in the present case it is for Cameroon to show that Nigeria acted in violation of the provisional measures indicated in the Order of 15 March 1996” (at ¶321). “In this case, the Court had already noted in the above Order that it was unable to form any ‘clear and precise’ picture of the events taking place in Bakassi in February 1996 […] Cameroon has not established the facts which it bears the burden of proving, and its submissions on this point must accordingly be rejected” (at ¶322).

2003

Oil Platforms (Iran v. U.S.), Judgment [2003] i.c.j. 161 (6 Nov.) The Court in this case considered the ‘burden of proof of the existence of an attack by Iran on the United States’ and it noted that ‘[it has] not [been] discharged’ (at 162; abstract). “[T]he Court has simply to determine whether the United States has demonstrated that it was the victim of an ‘armed attack’ by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such an attack rests on the United States. The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence available is insufficient to establish that the missile was fired by Iran, then the necessary burden of proof has not been discharged by the United States” (at ¶57). “In considering whether the United States has discharged the burden of proof that Iranian forces fired the missile that struck the Sea Isle City, the Court must take note of this deficiency

Digest of General Principles

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in the evidence available” (at ¶59). “The conclusion to which the Court has come on this aspect of the case is thus that the burden of proof of the existence of an armed attack by Iran on the United States, in the form of the missile attack on the Sea Isle City, has not been discharged” (at ¶61). “The United States bears the burden of proof that the vessels which were attacked were engaged in commerce or navigation between the territories of the United States and Iran” (at ¶119).

2004

2007

Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12 (31 Mar.) “Both Parties recognize the well-settled principle in international law that a litigant seeking to establish the existence of a fact bears the ­burden of proving it” (at ¶55). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) “On the burden or onus of proof, it is well established in general that the applicant must establish its case and that a party asserting a fact must establish it” (at ¶204). The Court added an observation that “has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive […] The same standard applies to the proof of attribution for such acts” (at ¶209).

2007

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections [2007] i.c.j. 582 (24 May) “It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that were not exhausted […] Thus, in the present case, Guinea must establish that Mr. Diallo exhausted any available local remedies or, if not, must show that exceptional circumstances justified the fact that he did not do so; it is, on the other hand, for the drc to prove that there were available and effective remedies in its domestic legal system against the decision to remove Mr. Diallo from the territory and that he did not exhaust them” (¶44).

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Digest of General Principles

2008

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] i.c.j. 12 (23 May) The Court said that “[i]t is a general principle of law, confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support of its claim must establish that fact” (at ¶45).

2009

Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment [2009] i.c.j. 61 (3 Feb.) “A preliminary issue concerns the burden of proof. As the Court has said on a number of occasions, the party asserting a fact as a basis of its claim must establish it” (at ¶68). In this case, “Ukraine placed particular emphasis on the Court’s dictum in the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) that ‘[t]he establishment of a permanent maritime boundary is a matter of grave importance and agreement is not easily to be presumed’ […] That dictum, however, is not directly relevant since in that case no written agreement existed and therefore any implicit agreement had to be established as a matter of fact, with the burden of proof lying with the State claiming such an agreement to exist. In the present case, by contrast, the Court has before it the 1949 Agreement and the ­subsequent agreements. Rather than having to make findings of fact, with one or other Party bearing the burden of proof as regards claimed facts, the Court’s task is to interpret those agreements” (at ¶68).

2009

2010

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213 (13 July) “The Court notes that Costa Rica, in support of its claim of unlawful action, advances points of fact about unreasonableness by referring to the allegedly disproportionate impact of the regulations. The Court recalls that in terms of well established general principle it is for Costa Rica to establish those points […] It will not be enough in a challenge to a regulation simply to assert in a general way that it is unreasonable. Concrete and specific facts will be required to persuade a court to come to that conclusion” (at ¶101). Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) “To begin with, the Court considers that, in accordance with the wellestablished principle of onus probandi incumbit actori, it is the duty of

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the party which asserts certain facts to establish the existence of such facts. This principle which has been consistently upheld by the Court […] applies to the assertions of fact both by the Applicant and the Respondent” (at ¶162). The Court further explained that “[i]t is of course to be expected that the Applicant should, in the first instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that the Respondent should not co-operate in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it” (at ¶163).

2010

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment [2010] i.c.j. 639 (30 Nov.) “As a general rule, it is for the party which alleges a fact in support of its claims to prove the existence of that fact […] However, it would be wrong to regard this rule, based on the maxim onus probandi incumbit actori, as an absolute one, to be applied in all circumstances. The determination of the burden of proof is in reality dependent on the subjectmatter and the nature of each dispute brought before the Court; it ­varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case” (at ¶54). “[W]here, as in these proceedings, it is alleged that a person has not been afforded, by a public authority, certain procedural guarantees to which he was entitled, it cannot as a general rule be demanded of the Applicant that it prove the negative fact which it is asserting. A public authority is generally able to demonstrate that it has followed the appropriate procedures and applied the guarantees required by law – if such was the case – by producing documentary evidence of the actions that were carried out. However, it cannot be inferred in every case where the Respondent is unable to prove the performance of a procedural obligation that it has disregarded it: that depends to a large extent on the precise nature of the obligation in question; some obligations normally imply that written documents are drawn up, while others do not. The time which has elapsed since the events must also be taken into account” (at ¶55).

2011

Application of the Interim Accord of 13 September 1995 (Maced. v. Greece), Judgment [2011] i.c.j. 644 (5 Dec.) “[T]he Court recalls that, in general, it is the duty of the party that asserts certain facts to establish the existence of such facts […] Thus, the

566

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Applicant bears the burden of establishing the facts that support its allegation that the Respondent failed to comply with its obligation under the Interim Accord” (at ¶72). “[T]he Court turns to the evidence regarding the alleged breaches by the Applicant. As previously noted (see paragraph 72), it is in principle the duty of the party that asserts certain facts to establish the existence of such facts” (at ¶123). In this case, the Court “conclude[d] that the Respondent has not met its burden of demonstrating that the Applicant breached its obligation to negotiate in good faith […and] has not discharged its burden to demonstrate a breach of Article 7, paragraph 3, by the Applicant” (at ¶¶138, 159).

2012

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation [2012] i.c.j. 324 (19 June) The Court referred to this general principle as to a ‘general rule’ and applied it to its assessment of compensation. “[A]s a general rule, it is for the party which alleges a particular fact in support of its claims to prove the existence of that fact […] The Court also recognized that this general rule would have to be applied flexibly in this case and, in particular, that the Respondent may be in a better position to establish certain facts” (at ¶15).

2015

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections, 2015 i.c.j. (3 Feb.) “The Court recalls that it is for the party alleging a fact to demonstrate its existence. This principle is not an absolute one, however, since ‘[t]he determination of the burden of proof is in reality dependent on the subject-matter and the nature of [the] dispute brought before the Court; it varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case’ […] In particular, the Court has recognized that there may be circumstances in which the Applicant cannot be required to prove a ‘negative fact’” (at ¶172).

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“Whilst the burden of proof rests in principle on the party which ­alleges a fact, this does not relieve the other party of its duty to ­co-operate ‘in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it’” (at ¶173). “In the present case, neither the subject-matter nor the nature of the dispute makes it appropriate to contemplate a reversal of the burden of proof” (at ¶174). The Court added that “[t]he same principles are applicable, mutatis mutandis, in respect of the counter-claim” (at ¶176).

2018

f 129

1982

Certain Activities carried out by Nicaragua in the Border Area, Compensation [2018] i.c.j. (2 Feb.) “The Court recalls that, ‘as a general rule, it is for the party which alleges a particular fact in support of its claims to prove the existence of that fact’. Nevertheless, the Court has recognized that this general rule may be applied flexibly in certain circumstances, where, for example, the respondent may be in a better position to establish certain facts” (at ¶33). Other Procedural General Principles General principle that an organ which intervenes in a procedure which, taken as a whole, is judicial in nature must observe the rules governing its composition and its functioning Type: Procedural Underpinning: Judicial Recurrence: none Application for Review of Judgment No. 273 of the United Nations ­Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325 (20 July) “[T]he Court will endeavour to establish whether the Committee duly respected the elementary principle governing the judicial process, that an organ which intervenes in a procedure which, taken as a whole, is judicial in nature, must observe the rules governing its composition and its functioning” (at ¶32).

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130

General principle that the requirements of the judicial process should be observed not only during the two sets of judicial proceedings but also during the operation of the political organ with quasijudicial functions Type: Procedural Underpinning: Judicial Recurrence: none

Application for Review of Judgment No. 273 of the United Nations ­Administrative Tribunal, Advisory Opinion [1982] i.c.j. 325 (20 July) 1982 “It regards it as a highly important principle that the requirements of the judicial process should be observed not only during the two sets of judicial proceedings (one before the Administrative Tribunal, the other before the Court) but also during the operation of the political organ with quasi-judicial functions which furnishes what the Court in its earlier Advisory Opinion called ‘a potential link’ between them” (at ¶23). 131

General principle that denial of justice is not established unless the rights of the private citizens have been refused judicial protection Type: Procedural Underpinning: Judicial Recurrence: none

Phosphates in Morocco, Judgment [1938] p.c.i.j. (ser.A/B) No. 74 (14 June) 1938 “[T]he Court need only recall the principle which it has set forth above: the complaint of a denial of justice cannot be separated from the criticism which the Italian Government directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection” (at 28–29). 132

General principle of equality of access to courts and tribunals Type: Procedural Underpinning: Judicial Recurrence: 2 icj decisions

Digest of General Principles

569

Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion [1973] i.c.j. 166 (12 July) 1973 In this advisory opinion, the Court considered the equality of the Secretary General of the United Nations and the official and their capacity to appear before the Court. “[U]nder Article 11, the equality of a staff member in the written procedure before the Court is not dependent on the will or favour of the Organization, but is made a matter of right guaranteed by the Statute of the Administrative Tribunal” (at ¶35). “[T]he Court [in its 1956 advisory opinion] considered that ‘any seeming or nominal absence of equality’ inherent in Article 66 of the Court’s Statute ought not to prevent it from complying with the request for an opinion. True, certain judges considered that the absence of oral proceedings constituted either an insuperable or a serious obstacle to the Court’s complying with the request for an advisory opinion. But that view was not shared by the Court” (at ¶35). “[I]t does not appear to the Court that there is any general principle of law which requires that in review proceedings the interested parties should necessarily have an opportunity to submit oral statements of their case to the review tribunal. General principles of law and the judicial character of the Court do require that, even in advisory proceedings, the interested parties should each have an opportunity, and on a basis of equality, to submit all the elements relevant to the questions which have been referred to the review tribunal. But that condition is fulfilled by the submission of written statements” (at ¶36). “The Court is, therefore, only concerned to ensure that the interested parties shall have a fair and equal opportunity to present their views to the Court respecting the questions on which its opinion is requested and that the Court shall have adequate information to enable it to ­administer justice in giving its opinion” (at ¶38). Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion), Advisory Opinion [2012] i.c.j. 10 (1 Feb.) 2012 The Court referred to “the principle of equality before the Court of the organization on the one hand and the official on the other” (at ¶35).

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Digest of General Principles

“In the particular context of the four requests […] brought to this Court by way of applications for review of judgments of the unat and the iloat, concerns have been raised about a central aspect of the good administration of justice: the principle of equality before the Court of the organization on the one hand and the official on the other” (at ¶35). In citing its 1956 advisory opinion, the Court wrote that “‘[a]ccording to generally accepted practice, legal remedies against a judgment are equally open to either party. In this respect each possesses equal rights for the submission of its case to the tribunal called upon to examine the matter’ […] in the present case, that absence of equality between the parties to the Judgments is somewhat nominal since the officials were successful in the proceedings before the Administrative Tribunal and there was accordingly no question of any complaint on their part” (at ¶37). “To turn to the general question of the concept of equality, the development of the principle of equality of access to courts and tribunals since 1946, when the review procedure was established, may be seen in the significant differences between the two General Comments by the Human Rights Committee on Article 14, paragraph 1, of the ­International Covenant on Civil and Political Rights of 1966” (at ¶39). “[Q]uestions may now properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals. While the Court is not in a position to reform this system, it can attempt to ensure, so far as possible, that there is equality in the proceedings before it” (at ¶44). 133

General principles governing the validity of arbitral awards Type: Procedural Underpinning: Judicial Recurrence: none

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 The Court mentioned these ‘general principles’ only in passim, without elaborating on their content.

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The Court said that “[t]he validity of that decision was certainly not subject to the procedural principles governing the validity of arbitral awards” (at ¶140). 134

General principle for keeping the Court’s General List Type: Procedural Underpinning: International Recurrence: none

Losinger, Order [1936] p.c.i.j. (ser.A/B) No. 67 (27 June) 1936 “[I]n the Court’s practice and in accordance with the principles laid down for keeping the General List (Art. 20 of the Rules), documents submitting preliminary objections are, for the present purpose, assimilated to documents instituting proceeding” (at 22–23). III a 135

1926

1927

Interpretative General Principles Good Faith and Pacta Sunt Servanda General principle of good faith Type: Substantive / Interpretative Underpinning: Judicial, International Recurrence: 3 pcij and 29 icj decisions Certain German Interests in Polish Upper Silesia (Merits), Judgment [1926] p.c.i.j. (ser.A) No. 7 (25 May) In this decision, the Court considered “the good faith of the Government of the Reich in the light of the obligations arising out of this Treaty [of Versailles]” (at 38). The Court reasoned that because the Treaty of Versailles did not “impose on Germany such obligation to refrain from alienating, it is, a fortiori, impossible to regard as an infraction of the principle of good faith Germany’s action in alienating the property before the coming into force of the Treaty which had already been signed” (at 39). “The Court has already observed that from the point of view of international law, the transaction under consideration must, in its opinion, be regarded as effective and as entered into in good faith” (at 42). Factory at Chorzów ( Jurisdiction), Judgment [1927] p.c.i.j. (ser.A) No. 9 (26 July) The Court found “that the alienation was a genuine transaction effected in good faith and was not designed to be detrimental to Poland’s

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rights and that the Oberschlesische’s right of ownership must be regarded as established, and could have been disputed only before a competent tribunal” (at 15; holding).

1927

Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] p.c.i.j. (ser.A) No. 13 (16 Dec.) “The Court has already observed that from the point of view of international law, the transaction under consideration must, in its opinion, be regarded as effective and as entered into in good faith” (at 17).

1948

Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion [1948] i.c.j. 57 (28 May) “Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article” (at 63).

1952

Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment [1952] i.c.j. 176 (27 Aug.) “The power of making the valuation rests with the Customs authorities, but it is a power which must be exercised reasonably and in good faith” (at 212).

1960

1969

Right of Passage over Indian Territory (Port. v. India), Merits [1960] i.c.j. 6 (12 Apr.) “It is made clear that such passage remains subject to the regulation and control of India, which must be exercised in good faith, India ­being under an obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty over the enclaves” (at 28). North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) “On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continent shelves - that is to say, rules binding upon States for all delimitations; - in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal régime of the continental shelf in this field” (at ¶85).

Digest of General Principles

1971

1974

1980

573

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) “The mandatory Powers also bound themselves to exercise their functions of administration in conformity with the relevant obligations emanating from the United Nations Charter, which member States have undertaken to fulfil in good faith in all their international relations” (at ¶90). Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253 (20 Dec.) “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding c­ haracter of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected” (at ¶46). Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion [1980] i.c.j. 73 (20 Dec.) “The very fact of Egypt’s membership of the [World Health] Organization entails certain mutual obligations of co-operation and good faith incumbent upon Egypt and upon the Organization” (at ¶43). “[T]hese provisions [International Law Commission’s draft articles on treaties between States and international organizations or between international organizations] also are based on an obligation to act in good faith and have reasonable regard to the interests of the other party to the treaty” (at ¶47). “[I]n formulating its reply to the request, the Court takes as its starting point the mutual obligations incumbent upon Egypt and the Organization to co-operation in good faith with respect to the implications and effects of the transfer of the Regional Office from Egypt. The Court does so the more readily as it considers those obligations to be the very basis of the legal relations between the Organization and Egypt under general international law, under the Constitution of the Organization

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Digest of General Principles

and under the agreements in force between Egypt and the Organization” (at ¶48). “It follows that the Court’s reply to the second question is that the legal responsibilities of the Organization and Egypt during the transitional period between the notification of the proposed transfer of the Office and the accomplishment thereof would be to fulfil in good faith the mutual obligations which the Court has set out in answering the first question” (at ¶50).

1982

1984

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Judgment [1984] i.c.j. 246 (12 Oct.) “The Chamber observes that in any case the concepts of acquiescence and estoppel, irrespective of the status accorded to them by international law, both follow from the fundamental principles of good faith and equity” (at ¶130). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) In this case, the Court referred to good faith as a ‘principle’ and a ‘requirement’. “The Court cannot regard Nicaragua’s reliance on the optional clause as in any way contrary to good faith or equity” (at ¶51). “In the establishment of this network of engagements, which constitutes the Optional Clause system, the principle of good faith plays an important role; the Court has emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms” (at ¶60). “It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity” (at ¶61).

1988

Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69 (10 Dec.) The Court said that “[t]he principle of good faith is, as the Court has observed, ‘one of the basic principles governing the creation and

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­ erformance of legal obligations’ […] it is not in itself a source of oblip gation where none would otherwise exist” (at ¶94).

1992

Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment [1992] i.c.j. 240 (26 June) The Court “reject[ed] […] the preliminary objection based on Nauru’s alleged lack of good faith” (at ¶72). “Australia’s fifth objection is that ‘Nauru has failed to act consistently and in good faith in relation to rehabilitation’” (at ¶37). The Court reasoned that “such conduct does not amount to an abuse of process” (at ¶38).

1996

1997

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] i.c.j. 226 (8 July) “The obligation expressed in Article vi of the Treaty on the Non-­ Proliferation of Nuclear Weapons includes its fulfilment in accordance with the basic principle of good faith. This basic principle is set forth in Article 2, paragraph 2, of the Charter. It was reflected in the Declaration on Friendly Relations between States (resolution 2625 (xxv) of 24 October 1970) and in the Final Act of the Helsinki Conference of 1 August 1975. It is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, according to which ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’” (at ¶102). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) In this decision, the Court referred to good faith as a ‘principle’ and also cited Article 26 of the Vienna Convention on the Law of Treaties. “Treaties, if not codifying customary law, at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith” (at ¶109). “The responsibility to do this was a joint responsibility. The obligations contained in Articles 15, 19 and 20 are, by definition, general and have to be transformed into specific obligations of performance through a process of consultation and negotiation. Their implementation thus requires a mutual willingness to discuss in good faith actual and potential environmental risk” (at ¶112).

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Digest of General Principles

“The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized” (at ¶142). “The readiness of the Parties to accept such assistance [of a third party] would be evidence of the good faith with which they conduct bilateral negotiations in order to give effect to the Judgment of the Court” (at ¶143).

1998

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) “The Court observes that the principle of good faith is a w ­ ell-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969. It was mentioned as early as the beginning of this century in the Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case […] It was moreover upheld in several judgments of the Permanent Court of International Justice [and the International Court of Justice]” (at ¶38). “The Court furthermore notes that although the principle of good faith is ‘one of the basic principles governing the creation and performance of legal obligations […] it is not in itself a source of obligation where none would otherwise exist’” (at ¶39). The Court found that “in bringing proceedings before the Court, Cameroon did not disregard the legal rules relied on by Nigeria in support of its second objection. Consequently, Nigeria is not justified in relying on the principle of good faith and the rule pacta sunt servanda, both of which relate only to the fulfilment of existing obligations. The second branch of Nigeria’s objection is not accepted” (at ¶59).

2000

Aerial Incident of 10 August 1999 (Pak. v. India), Judgment [2000] i.c.j. 12 (21 June) In this case, the Court noted that States are under an obligation to seek a settlement in good faith in accordance with the United Nations Charter.

Digest of General Principles

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The Court said that States are “under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 2, of the Charter” (at ¶52).

2004

2004

Avena and Other Mexican Nationals (Mex v. U.S.), Judgment [2004] i.c.j. 12 (31 Mar.) “[T]he Court notes that the United States has been making considerable efforts to ensure that its law enforcement authorities provide consular information to every arrested person they know or have reason to believe is a foreign national. Especially at the stage of pre-trial consular information, it is noteworthy that the United States has been making good faith efforts to implement the obligations incumbent upon it under Article 36, paragraph 1, of the Vienna Convention, through such measures as a new outreach programme launched in 1998” (at ¶149). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] i.c.j. 136 (9 July) In this advisory opinion, the Court related the application of the general principle of good faith to States’ implementation of United Nations Security Council Resolutions. “[I]n the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973)” (at ¶162).

2007

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) “[T]he Court should, at this late stage of the proceedings, decline to examine the questions raised by the Respondent as to the status of Serbia and Montenegro in relation to Article 35 of the Statute, and its status as a party to the Genocide Convention, are because the conduct of the Respondent in relation to the case has been such as to create a sort of forum prorogatum, or an estoppel, or to debar it, as a matter of good faith, from asserting at this stage of the proceedings that it had no ­access to the Court at the date the proceedings were instituted” (at ¶85).

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Digest of General Principles

“[W]hether or not the Respondent should be held to have acquiesced in the jurisdiction of the Court in this case, such acquiescence would in no way debar the Court from examining and ruling upon the question stated above. The same reasoning applies to the argument that the Respondent is estopped from raising the matter at this stage, or debarred from doing so by considerations of good faith” (at ¶103).

2008

2008

Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) The Court in this case considered good faith as part of the Vienna Convention on the Law of Treaties and applied it to the State’s discretion in implementing a treaty. The Court said that “while it is correct, as France claims, that the terms of Article 2 [of the 1986 Convention on Mutual Assistance in Criminal Matters between France and Djibouti] provide a State to which a request for assistance has been made with a very considerable discretion, this exercise of discretion is still subject to the obligation of good faith codified in Article 26 of the 1969 Vienna Convention on the Law of Treaties” (at ¶145). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412 (18 Nov.) “Pursuant to the authority thus conferred upon it, the Security Council adopted resolution 9 (1946) of 15 October 1946, providing in substance that the Court shall be open to any State not a party to the Statute which has previously deposited a declaration, either in respect of one or more particular matters or with a more general ambit, whereby the State undertakes to accept the jurisdiction of the Court in accordance with the Charter and to comply in good faith with the decisions of the Court” (at ¶58). “The question what effects might, in law, result from the fact that Croatia might have thought it possible, in good faith, to rely on the commitment given in those documents, can be reserved for the present” (at ¶105).

2009

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment [2009] i.c.j. 213 (13 July) In this case, the Court noted that good faith must be presumed. The Court said that “there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat

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that act or conduct in the future, since its good faith must be presumed” (at ¶150).

2010

Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment [2010] i.c.j. 14 (20 Apr.) “Whatever its specific designation and in whatever instrument it may have been recorded (the caru minutes), this ‘understanding’ is binding on the Parties, to the extent that they have consented to it and must be observed by them in good faith” (at ¶128). “The Court notes, moreover, that the 1975 Statute is perfectly in keeping with the requirements of international law on the subject, since the mechanism for co-operation between States is governed by the principle of good faith. Indeed, according to customary international law, as reflected in Article 26 of the 1969 Vienna Convention on the Law of Treaties, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’. That applies to all obligations established by a treaty, including procedural obligations which are essential to co-operation between States” (at ¶145).

2012

Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) The Court did not refer to this norm as a ‘principle’. It noted that good faith must be presumed. “As the Court has stated in previous cases […] as a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed” (at ¶138).

2013

Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281 (11 Nov.) “[T]he parties to a case before the Court have an obligation to implement the judgment of the Court in good faith. It is of the essence of that obligation that it does not permit either party to impose a unilateral solution” (at ¶99). “Once a dispute regarding territorial sovereignty has been resolved and uncertainty removed, each party must fulfil in good faith the o­ bligation

580

Digest of General Principles

which all States have to respect the territorial integrity of all other States” (at ¶105).

2014

2015

Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Austl.), Order [2014] i.c.j. 147 (3 Mar.) “The Court further notes that the Agent of Australia stated that ‘the Attorney-General of the Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter of both Australian law and international law’. The Court has no reason to believe that the written undertaking dated 21 January 2014 will not be implemented by Australia. Once a State has made such a commitment concerning its conduct, its good faith in complying with that commitment is to be presumed” (at ¶44). Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Judgment [2015] i.c.j. 665 (16 Dec.) “If the environmental impact assessment confirms that there is a risk of significant transboundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk” (at ¶104). “As the Court noted in the [2009] Navigational and Related Rights case, ‘there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed’ and therefore assurances and guarantees of non-repetition will be ordered only ‘in special circumstances’” (at ¶141). “The Court reiterates its conclusion that, if the environmental impact assessment confirms that there is a risk of significant transboundary harm, a State planning an activity that carries such a risk is required, in order to fulfil its obligation to exercise due diligence in preventing significant transboundary harm, to notify, and consult with, the potentially affected State in good faith, where that is necessary to determine the appropriate measures to prevent or mitigate that risk” (at ¶168). “In this connection, the Court considers that, if the circumstances so require, Costa Rica will have to consult in good faith with Nicaragua,

Digest of General Principles

581

which is sovereign over the San Juan River, to determine the a­ ppropriate measures to prevent significant transboundary harm or minimize the risk thereof” (at ¶173).

2015

Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Judgment [2015] i.c.j. 665 (16 Dec.) “If the environmental impact assessment confirms that there is a risk of significant transboundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk” (at ¶104). “As the Court noted in the [2009] Navigational and Related Rights case, ‘there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed’ and therefore assurances and guarantees of non-repetition will be ordered only ‘in special circumstances’” (at ¶141). “The Court reiterates its conclusion that, if the environmental impact assessment confirms that there is a risk of significant transboundary harm, a State planning an activity that carries such a risk is required, in order to fulfil its obligation to exercise due diligence in preventing significant transboundary harm, to notify, and consult with, the potentially affected State in good faith, where that is necessary to determine the appropriate measures to prevent or mitigate that risk” (at ¶168). “[T]he Court considers that, if the circumstances so require, Costa Rica will have to consult in good faith with Nicaragua, which is sovereign over the San Juan River, to determine the appropriate measures to ­prevent significant transboundary harm or minimize the risk thereof” (at ¶173).

2016

Alleged Violations of Sovereign Rights and Maritime Spaces in the ­Caribbean Sea (Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 3 (17 Mar.) “The Court made clear that the parties are expected to provide substantive evidence to demonstrate that they considered in good faith that their dispute could or could not be settled by direct negotiations through the usual diplomatic channels” (at ¶93).

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Digest of General Principles

“[W]hat is essential for the Court to decide is whether, on that date […] the Parties considered in good faith a certain possibility of a negotiated settlement to exist or not to exist” (at ¶99). 136

General principle of pacta sunt servanda Type: Interpretative / Substantive Underpinning: International, Judicial Recurrence: 2 pcij and 5 icj decisions

Mavrommatis Palestine Concessions, Judgment [1924] p.c.i.j. (ser.A) No. 2 (30 Aug.) 1924 In this case, the Court referred to the principle of maintenance of concessionary contracts. It said that “[t]he fundamental principle of the Protocol is the maintenance of concessionary contracts concluded ­before October 29th, 1914” (at 27). Mavrommatis Jerusalem Concessions, Judgment [1925] p.c.i.j. (ser.A) No. 5 (26 Mar.) 1925 The Court referred to “principles that seem generally accepted in regard to contracts” (at 30). The Court noted that Article 1 of Protocol xii to the Lausanne Peace Treaty “lays down the fundamental principles of the maintenance of contracts and agreements duly entered into” (at 48). The Court implies that the content of these general principles is that “before a contract can have a beginning of operation, it must, in the first place, exist, it must be valid and the conditions necessary to endow it with validity must all be present” (at 49) and that “that which gives birth to a contract is the agreement between the parties to it, the exchange of signatories denoting that agreement, and it is at that moment that the conditions on which the agreement is based must exist. Everything that happens subsequently […] is the fulfilment of the contract” (at 50). Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253 (20 Dec.) 1974 In this decision, the Court noted that “rule of pacta sunt servanda in the law of treaties is based on good faith” (at ¶46). The Court referred to pacta sunt servanda in tandem with the general principle of good faith.

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The Court said that “as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected” (at ¶46). Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Preliminary Objections [1984] i.c.j. 392 (26 Nov.) 1984 The Court cited its Nuclear Tests pronouncement in which it linked pacta sunt servanda with good faith (at ¶60). Frontier Dispute (Burk. Faso/Mali), Judgment [1986] i.c.j. 554 (22 Dec.) 1986 The Chamber referred to pacta sunt servanda as a ‘principle’. The Chamber said that “[t]he Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger” (at ¶46). Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment [1997] i.c.j. 7 (25 Sept.) 1997 The Court considered the ‘integrity of the rule pacta sunt servanda’ (at 8; abstract). It also noted that this general principle is part of the Vienna Convention on the Law of Treaties (at ¶142). “The Court is of the view, however, that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal non-compliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent” (at ¶114).

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“The Court is of the opinion that the Parties are under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled” (at ¶139). “What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an agreed solution within the ­co-operative context of the Treaty” (at ¶142). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) 1998 The Court referred to the ‘rule’ of pacta sunt servanda. The Court said that “in bringing proceedings before the Court, Cameroon did not disregard the legal rules relied on by Nigeria in support of its second objection. Consequently, Nigeria is not justified in relying on the principle of good faith and the rule pacta sunt servanda, both of which relate only to the fulfilment of existing obligations” (at ¶59). b 137

1952

General Principles Specific to Treaty Interpretation General principle that a legal text should be interpreted in such a way that a reason and a meaning be attributed to every word in the text Type: Interpretative Underpinning: Judicial Recurrence: none Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) “The Government of the United Kingdom has further argued that the Declaration would contain some superfluous words if it is interpreted as contended by Iran. It asserts that a legal text should be interpreted in such a way that a reason and a meaning can be attributed to every word in the text. It may be said that this principle should in general be applied when interpreting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States” (at 105).

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1923

1932

585

General principles generally applicable to treaty interpretation Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij and 3 icj decisions Question on Jaworzina, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 8 (6 Dec.) The Court noted the existence of ‘principles governing the authoritative interpretation of legal documents’. In particular, it stated that “even leaving out of the question the principles governing the authoritative interpretation of legal documents, it is obvious that the opinion of the authors of a document cannot be endowed with a decisive value when that opinion has been formulated after the drafting of that document and conflicts with the opinion which they expressed at that time” (at 38). Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 50 (15 Nov.) In the abstract, the Court referred to ‘principles of interpretation’ (at 365; abstract). The Court did not refer to any particular principle of interpretation. It stated, however that “the principles underlying these earlier decisions throw light on the question whether there is any solid foundation for the suggested rule of interpretation. To justify the adoption of a rule for the interpretation of Labour conventions to the effect that words describing general categories of human beings such as ‘persons’ or ‘women’ must prima facie be regarded as referring only to manual workers, it would be necessary to show that it was only with manual workers that the Labour Organization was intended to concern itself. The words used in the Preamble and in the operative articles of Part xiii – both in the French and English texts – to describe the i­ ndividuals who are the subjects of the International Labour Organization’s activities are not words which are confined to manual workers […] The text […] of Part xiii does not support the view that it is workers doing manual work - to the exclusion of other categories of workers – with whom the International Labour Organization was to concern itself. This being so, the fact that the Washington Convention is a Labour convention

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Digest of General Principles

does not provide sufficient reason for interpreting ‘women’ in Article 3 of that Convention as confined to women doing manual work” (at 375–376).

1962

1991

Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] i.c.j. 151 (20 July) The Court used this generalised statement of ‘principles and rules’ when noting that “[o]n the previous occasions when the Court has had to interpret the Charter of the United Nations, it has followed the principles and rules applicable in general to the interpretation of treaties, since it has recognized that the Charter is a multilateral treaty, albeit a treaty having certain special characteristics […] The Court sustained its interpretation of Article 4 by considering the manner in which the organs concerned ‘have consistently interpreted the text’ in their practice” (at 157). Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53 (12 Nov.) “An arbitration agreement (compromis d’arbitrage) is an agreement between States which must be interpreted in accordance with the general rules of international law governing the interpretation of treaties” (at ¶48). The Court referred to the duty of the Court to interpret the text in accordance with the natural and ordinary meaning in the context in which it occurred (ibid.). The Court added that “[t]hese principles are reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary international law on the point” (at ¶48).

1992

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66 (8 July) The Court applied these general principles to interpreting the constituting documents of international organisations. “From a formal standpoint, the constituent instruments of international organizations are multilateral treaties, to which the well-­ established rules of treaty interpretation apply. As the Court has said with respect to the Charter […] ‘it has followed the principles and rules applicable in general to the interpretation of treaties, since it has recognized that the Charter is a multilateral treaty’” (at ¶19).

Digest of General Principles

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“It follows from the various instruments mentioned above that the who Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter” (at ¶26). 139

General principle that there is no occasion to resort to preparatory work if the text of a treaty is sufficiently clear in itself Type: Interpretive Underpinning: Judicial Recurrence: 7 icj decisions

Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4 (3 Mar.) 1950 “In the present case the Court finds no difficulty in ascertaining the natural and ordinary meaning of the words in question and no difficulty in giving effect to them. Some of the written statements submitted to the Court have invited it to investigate the travaux préparatoires of the Charter. Having regard, however, to the considerations above stated, the Court is of the opinion that it is not permissible, in this case, to resort to travaux préparatoires” (at 8). Fisheries Jurisdiction (U.K. v. Ice.), Preliminary Objections [1973] i.c.j. 3 (2 Feb.) 1973 “Since, on the face of it, the dispute thus brought to the Court upon the Application of the United Kingdom falls exactly within the terms of this clause, the Court would normally apply the principle it reaffirmed in its 1950 Advisory Opinion […] according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself” (at ¶17). “However, having regard to the peculiar circumstances of the present proceedings, as set forth in paragraph 12 above, and in order fully to ascertain the scope and purpose of the 1961 Exchange of Notes, the Court will undertake a brief review of the negotiations that led up to that exchange” (at ¶17). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) 1994 “Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of

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Digest of General Principles

i­nterpretation such as the preparatory work of the treaty and the ­circumstances of its conclusion” (at ¶41). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility [1995] i.c.j. 6 (15 Feb.) 1995 “Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion” (at ¶33). Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045 (13 Dec.) 1999 “Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty” (at ¶20). Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] i.c.j. 625 (17 Dec.) 2002 “Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion” (at ¶18). Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70 (1 Apr.) 2011 “[T]he Court need not resort to supplementary means of interpretation such as the travaux préparatoires of cerd and the circumstances of its conclusion, to determine the meaning of Article 22” (at ¶142). “However, the Court notes that both parties have made extensive arguments relating to the travaux préparatoires, citing them in support of their respective interpretations of the phrase ‘a dispute which is not settled…’. Given this and the further fact that in other cases, the Court had resorted to the travaux préparatoires in order to confirm its reading of the relevant texts […] the Court considers that in this case a presentation of the parties’ positions and an examination of the travaux préparatoires is warranted” (at ¶142).

Digest of General Principles

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589

General principle that international obligations cannot transmit to another international agreement unless the international agreement expressly allows This general principle, ascertained in the 1924 Treaty of Neuilly decision, provides that the terms of two treaties cannot transfer if that is not explicitly provided for in the text of one treaty. Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij decisions

Treaty of Neuilly‚ Article 179‚ Annex‚ Paragraph 4 (Interpretation), Judgment [1924] p.c.i.j. (ser.A) No. 3 (12 Sept.) 1924 The Court, placing this general principle among the “general principles of interpretation”, noted that “an obligation imposed on one Contracting Party cannot be based on the fact that it is mentioned in the annex to a section of a Treaty dealing with a different matter” (at 9). Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 50 (15 Nov.) 1932 Without referring to any ‘principle’, the Court compared the Berne and the Washington Conventions and said that “[t]he text of the Convention as adopted made no reference to the Berne Convention […] The Washington Convention cannot therefore be said […] as to require that the terms of the Washington Convention should bear the same meaning as the terms of the Berne Convention” (at 377). The Court referred to its 1924 decision. It noted that “the principles underlying these earlier decisions throw light on the question whether there is any solid foundation for the suggested rule of interpretation” (at 375). 141

General principle that if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the Parties should be adopted Type: Interpretative Underpinning: Judicial Recurrence: none

590

Digest of General Principles

Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 12 (21 Nov.) 1925 “[Turkey’s] argument appears to rest on the following principle: if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the Parties should be adopted. This principle may be admitted to be sound” (at 25). “In the present case, however, the argument is valueless, because, in the Court’s opinion, the wording of Article 3 is clear” (at 25). See also Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23, at 26 (10 Sept.) (noting that “it will be only when [after reference is properly had to the principles underlying the matter to which the text refer], in spite of all pertinent considerations, the intention of the Parties still remains doubtful, that that interpretation should be adopted which is most ­favourable to the freedom of States”). 142

General principle that the intention of the Parties is decisive Type: Interpretative Underpinning: Judicial Recurrence: 4 pcij decisions

Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] p.c.i.j. (ser.B) No. 15 (3 Mar.) 1928 “The intention of the Parties, which is to be ascertained from the contents of the Agreement, taking into consideration the manner in which the Agreement has been applied, is decisive. This principle of interpretation should be applied by the Court in the present case” (at 18). Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) 1929 “[T]his method of executing the contract should be deemed to be ­controlling in determining the intention of the Parties, in accordance with the familiar principle applicable to ambiguous agreements” (at 38). “On this principle it is argued that the Parties did not intend by the loan contracts to provide for payment in gold francs. But the loan ­contracts are not ambiguous on this point. They are clear and definite” (at 38).

Digest of General Principles

591

Brazilian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 21 (12 July) 1929 “It is sought to apply the familiar principle that where a contract is ambiguous, resort may be had to the manner of performance in order to ascertain the intention of the Parties. But in this case, there is no ambiguity, at least in the loan contracts of 1910 and 1911, as these call in clear and precise terms for payment of principal and interest in gold francs” (at 119). Territorial Jurisdiction of the International Commission of the River Oder, Judgment [1929] p.c.i.j. (ser.A) No. 23 (10 Sept.) 1929 The Court did not refer to this general principle. It only stated that it “fully appreciates the value of this argument, but considers that it is not alone sufficient to show that the intention of the contracting ­Parties was to internationalize tributaries and sub-tributaries as such” (at 26). The argument put forward by six States was “that the word part in Article 331 refers to river systems, and that a part of a river system, in the natural meaning of the terms, is one of the units composing the said system, namely, a tributary or sub-tributary” (at 26; emphases in the original). c 143

General Principles Not Specific to Treaty Interpretation General principle of effectiveness | General principle according to which statements must be given their maximum effect in order to ensure the achievement of their underlying purposes | General principle of ut res magis valeat quam pereat | General principle of appropriate effect Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij and 9 icj decisions

Competence of the ilo to Regulate Incidentally the Personal Work of the Employer, Advisory Opinion [1926] p.c.i.j. (ser.B) No. 13 (23 July) 1926 “[T]he Court, in determining the nature and scope of a measure, must look to its practical effect rather than to the predominant motive that may be conjectured to have inspired it” (at 13). Free Zones of Upper Savoy and the District of Gex, Order [1929] p.c.i.j. (ser.A) No. 22 (19 Aug.) 1929 “[I]n case of doubt the clauses of a special agreement by which a dispute is referred to the Court, must, if it does not involve doing violence

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Digest of General Principles

to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects” (at 13). Corfu Channel (U.K. v. Alb.), Judgment [1949] i.c.j. 4 (9 Apr.) 1949 The Court in this decision did not refer to this notion as a ‘principle’; it referred to its 1926 and 1929 precedents. The Court said that “[i]t would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect” (at 24). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion [1950] i.c.j. 221 (18 July) 1950 “The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit” (at 229). The Court also said that “[t]he ineffectiveness in the present case of the clauses dealing with the settlement of disputes does not permit such a generalization [… it] does not justify the Court in exceeding its judicial function on the pretext of remedying a default for the occurrence of which the Treaties have made no provision” (at 229–230). Right of Passage over Indian Territory (Port. v. India), Preliminary Objections [1957] i.c.j. 125 (26 Nov.) 1957 The Court observed that the outcome of applying this general principle must be in line with positive law and not in violation of it. The Court said that “[i]t is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it” (at 142). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6 (18 July) 1966 The Court in this case noted the limits of this general principle (at 7; abstract, noting the ‘limits of the teleological principle of interpretation’) and interpreted it as a general principle according to which

Digest of General Principles

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statements must be given their maximum effect in order to ensure the achievement of their underlying purposes. “It may be urged that the Court is entitled to engage in a process of ‘filling in the gaps’, in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. The Court need not here enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, and would have to engage in a process of r­ ectification or revision […] In other words, the Court cannot remedy a deficiency if, in order to do so, it has to exceed the bounds of normal judicial ­action” (at ¶91). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] i.c.j. 16 (21 June) 1971 The Court did not refer to the ‘principle’ of interpretation, and it only implied the existence of the general principle of effectiveness. “If Article 80, paragraph 1, were to be understood as a mere interpretative provision preventing the operation of Chapter xii from affecting any rights, then it would be deprived of all practical effect […] Likewise, if paragraph 1 of Article 80 were to be understood as a mere saving clause, paragraph 2 of the same Article would have no purpose […] This provision was obviously intended to prevent a mandatory Power from invoking the preservation of its rights resulting from paragraph 1 […] No method of interpretation would warrant the conclusion that Article 80 as a whole is meaningless” (at ¶66). Aegean Sea Continental Shelf (Greece v. Turk.), Judgment [1978] i.c.j. 3 (19 Dec.) 1978 The Court did not invoke a ‘principle’ and it applied this notion in an implicit manner. The Court said that “[t]he grammatical interpretation of reservation (b) advanced by Greece leads to a result which is legally somewhat surprising. Disputes concerning matters of ‘domestic jurisdiction’ and ­disputes relating to ‘territorial status’ are different concepts which, in

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treaty provisions, including Article 39, paragraph 2, of the General Act, and in reservations to treaties or to acceptances of jurisdiction under Article 36, paragraph 2, of the Statute, have been kept quite separate and distinct. Furthermore, the integration of ‘disputes relating to territorial status’ within the category of disputes concerning matters of ‘domestic jurisdiction’, largely deprives the former of any significance. Consequently, only if the grammatical arguments were compelling and decisive would the Court be convinced that such is the effect which ought to be given to the words ‘et, notamment’, in reservation (b). But those arguments do not appear to the Court to be so compelling as has been suggested” (at ¶52). Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) 1994 The Court referred to a ‘fundamental principle of effectiveness’. It said that “[a]ny other construction would be contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness” (at ¶51). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432 (4 Dec.) 1998 The Court referred to this general principle in its abstract as the ‘effectiveness principle’ (at 432; abstract). The Court applied this general principle to interpretation of unilateral declarations. “[T]he principle of effectiveness meant that a reservation must be interpreted by reference to the object and purpose of the declaration, which was the acceptance of the compulsory jurisdiction of the Court” (at ¶43). “The Court was addressed by both Parties on the principle of effectiveness. Certainly, this principle has an important role in the law of ­treaties and in the jurisprudence of this Court; however, what is required in the first place for a reservation to a declaration made under Article 36, paragraph 2, of the Statute, is that it should be interpreted in a manner compatible with the effect sought by the reserving State” (at ¶52).

Digest of General Principles

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“[T]he purpose of the reservation was specifically to protect ‘the integrity’ of the Canadian coastal fisheries protection legislation. Thus to take the contrary view would be to disregard the evident intention of the declarant and to deprive the reservation of its effectiveness” (at ¶66). Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Judgment [2011] i.c.j. 70 (1 Apr.) 2011 The Court ascertained the ‘principle that words should be given appropriate effect whenever possible’, while referring to the 1929 Fee Zones, 1949 Corfu Channel and 1994 Territorial Dispute cases. The Court interpreted the Special Agreement between the Parties and noted that this agreement produces some (appropriate) effect. “Leaving aside the question of whether the two modes of peaceful resolution are alternative or cumulative, the Court notes that Article 22 of cerd qualifies the right to submit ‘a dispute’ to the jurisdiction of the Court by the words ‘which is not settled’ by the means of peaceful resolution specified therein. Those words must be given effect […] By interpreting Article 22 of cerd to mean, as Georgia contends, that all that is needed is that, as a matter of fact, the dispute had not been resolved (through negotiations or through the procedures established by cerd), a key phrase of this provision would become devoid of any effect” (at ¶133). “[I]t stands to reason that if, as a matter of fact, a dispute had been settled, it is no longer a dispute. Therefore, if the phrase ‘which is not settled’ is to be interpreted as requiring only that the dispute referred to the Court must in fact exist, that phrase would have no usefulness. Similarly, the express choice of two modes of dispute settlement, namely, negotiations or resort to the special procedures under cerd, suggests an affirmative duty to resort to them prior to the seisin of the Court. Their introduction into the text of Article 22 would otherwise be meaningless and no legal consequences would be drawn from them contrary to the principle that words should be given appropriate effect whenever possible” (at ¶134).

596

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144

General principle that the words must be interpreted in the sense which they would normally have in their natural and ordinary meaning in their context, unless such interpretation would lead to something unreasonable or absurd Type: Interpretative Underpinning: Judicial Recurrence: 1 pcij decision and 8 icj decisions

Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11 (16 May) 1925 “It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd” (at 39). The Court added that “[i]n the opinion of the Court, the rules as to a strict or liberal construction of treaty stipulations can be applied only in cases where ordinary methods of interpretation have failed” (at 39), but did not explain what these ‘rules as to a strict or liberal construction of treaty stipulations’ are. The Court concluded that it is reasonable and supported by the reference to various articles read alone and in relation to one another (at 39–40). Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion [1950] i.c.j. 4 (3 Mar.) 1950 “The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter. If, on the other hand, the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words” (at 8). “When the Court can give effect to a provision of a treaty by giving to the words used in it their natural and ordinary meaning, it may not

Digest of General Principles

597

interpret the words by seeking to give them some other meaning. In the present case the Court finds no difficulty in ascertaining the natural and ordinary meaning of the words in question and no difficulty in giving effect to them” (at 8). Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) 1952 “[T]he Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court” (at 104). Right of Passage over Indian Territory (Port. v. India), Preliminary ­Objections [1957] i.c.j. 125 (26 Nov.) 1957 The Court interpreted Portugal’s declaration of acceptance of the Court’s jurisdiction in accordance with this general principle, without referring to it as a ‘principle’. The Court said that “[c]onstrued in their ordinary sense, these words mean simply that a notification under the Third Condition [limiting the application of Article 36 of the Court’s Statute] applies only to ­disputes brought before the Court after the date of the notification” (at 142). Constitution of the Maritime Safety Committee of the Inter-­Governmental Maritime Consultative Organization, Advisory Opinion [1960] i.c.j. 150 (8 June) 1960 “[T]he words of Article 28 (a) must be read in their natural and ordinary meaning, in the sense which they would normally have in their context. It is only if, when this is done, the words of the Article are ambiguous in any way that resort need be had to other methods of construction […] The language employed […] in its natural and ordinary meaning conveys this intent of the draftsmen […] This interpretation accords with the structure of the Article” (at 160–161). Temple of Preah Vihear (Cambodia v. Thai.), Preliminary Objections [1961] i.c.j. 17 (26 May) 1961 “[T]he Court must apply its normal canons of interpretation, the first of which, according to the established jurisprudence of the Court, is

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Digest of General Principles

that words are to be interpreted according to their natural and ordinary meaning in the context in which they occur” (at 32). “[T]he Court has held in the Anglo-Iranian Oil Co. case […] that the principle of the ordinary meaning does not entail that words and phrases are always to be interpreted in a purely literal way; and the Permanent Court, in the case of the Polish Postal Service in Danzig […] held that this principle did not apply where it would lead to ‘something unreasonable or absurd’. The case of a contradiction would clearly come under that head” (at 32–33). The Court referred in the abstract of its decision to ‘[r]ules of interpretation of the legal instruments’ (at 17; abstract). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections [1962] i.c.j. 319 (21 Dec.) 1962 “This contention is claimed to be based upon the natural and ordinary meaning of the words employed in the provision. But this rule of interpretation is not an absolute one. Where such a method of ­interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it” (at 336). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase [1966] i.c.j. 6 (18 July) 1966 The Court did not refer to this general principle directly, but applied it in its reasoning. The Court said that “[s]ince the course adopted in the minorities case does not constitute any parallel to that of the mandates, the Applicants’ contention is seen to depend in the last analysis almost entirely on what has been called the broad and unambiguous language of the jurisdictional clause-or in other words its literal meaning taken in isolation and without reference to any other consideration […] ­ Thus reduced to its basic meaning, it can be seen that the clause is not capable of carrying the load the Applicants seek to put upon it” (at ¶72).

Digest of General Principles

599

Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Judgment [1991] i.c.j. 53 (12 Nov.) 1991 Although using the generalised expression of “general rules of international law governing the interpretation of treaties”, the Court referred to its duty to interpret the text in the natural and ordinary meaning in the context in which it occurred (at ¶48). In citing its 1950 advisory opinion, the Court stated that “‘the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter. If, on the other hand, the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words’” (at ¶48). The Court said that “[t]he travaux préparatoires accordingly confirm the ordinary meaning of Article 2” (at ¶54). Cf. Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. ­intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 The Chamber relied on Article 31 of the Vienna Convention on the Law of Treaties. The Chamber said that “[i]t is therefore necessary, in application of the normal rules of treaty interpretation, to ascertain whether the text is to be read as entailing such delimitation. If account be taken of the basic rule of Article 31 of the Vienna Convention on the Law of Treaties, according to which a treaty shall be interpreted ‘in accordance with the ordinary meaning to be given to the terms’” (at ¶373). The Court added that “[i]n considering the ordinary meaning to be given to the terms of the treaty, it is appropriate to compare them with the terms generally or commonly used in order to convey the idea that a delimitation is intended” (at ¶380).

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Cf. Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) 1994 The Court referred to this norm only as embodied in Article 31 of the Vienna Convention on the Law of Treaties and as part of customary international law. “The Court would recall that, in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion” (at ¶41). Cf. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility [1995] i.c.j. 6 (15 Feb.) 1995 “It is accordingly incumbent upon the Court to decide the meaning of the text in question by applying the rules of interpretation that it recently had occasion to recall in the case concerning the Territorial Dispute […] ‘in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ­ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion’” (at ¶33). Cf. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] i.c.j. 66 (8 July) 1996 The Court referred to Article 31 of the Vienna Convention on the Law of Treaties in noting that “the terms of a treaty must be interpreted ‘in their context and in the light of its object and purpose’” (at ¶19). The Court interpreted the constitution of the World Health Organisation “in accordance with their ordinary meaning, in their context and in the light of the object and purpose […] as well as of the practice followed by the Organization” (at ¶21).

Digest of General Principles

601

Cf. Oil Platforms (Iran v. U.S.), Preliminary Objections [1996] i.c.j. 803 (12 Dec.) 1996 The Court referred only to the customary international law counterpart of Article 31 of the Vienna Convention on the Law of Treaties. “The Court recalls that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose” (at ¶23). Cf. Kasikili/Sedudu Island (Bots./Namib.), Judgment [1999] i.c.j. 1045 (13 Dec.) 1999 While referring to the norm, the Court relied only on the Vienna Convention on the Law of Treaties and its customary counterparts. “The Court will now proceed to interpret the provisions of the 1890 Treaty by applying the rules of interpretation set forth in the 1969 ­Vienna Convention” (at ¶20; see also at ¶¶25, 52, 73). Cf. LaGrand (Ger. v. U.S.), Judgment [2001] i.c.j. 466 (27 June) 2001 “The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose” (at ¶99). The Court did not interpret Article 36(1)(c) of the Vienna Convention on Consular Relations beyond the context. The Court said that “[t]he clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand” (at ¶77). Cf. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), Judgment [2002] i.c.j. 625 (17 Dec.) 2002 The Court referred only to customary international law and the Vienna Convention on the Law of Treaties.

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“The Court notes that Indonesia is not a party to the Vienna Convention of 23 May 1969 on the Law of Treaties; the Court would nevertheless recall that, in accordance with customary international law, ­reflected in Articles 31 and 32 of that Convention” (at ¶18). Cf. Accordance with international law of the unilateral declaration of ­independence in respect of Kosovo (Request for Advisory Opinion), Advisory Opinion [2010] i.c.j. 403 (22 July) 2010 The Court referred only to customary international law and the Vienna Convention on the Law of Treaties. “[T]he rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance” (at ¶94). 145

General principle that a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with appropriate regard for the intentions of the reserving State and the purpose of the reservation Type: Interpretative Underpinning: Judicial Recurrence: 4 icj decisions

Anglo-Iranian Oil Co. (U.K. v. Iran), Preliminary Objections [1952] i.c.j. 93 (22 July) 1952 The Court did not refer to this norm as a ‘principle’. It merely stated that “the Court cannot base itself on a purely grammatical interpretation of the text [of the Iran’s declaration of acceptance of the Court’s jurisdiction]. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court” (at 104). Certain Norwegian Loans (Fr. v. Nor.), Advisory Opinion [1957] i.c.j. 9 (6 July) 1957 The Court did not specifically apply this general principle. It, however, observed that “[t]he validity of the reservation has not been ­questioned by the Parties. It is clear that France fully maintains its Declaration,

Digest of General Principles

603

including the reservation, and that Norway relies upon the reservation. In consequence the Court has before it a provision which both Parties to the dispute regard as constituting an expression of their common will relating to the competence of the Court. The Court does not therefore consider that it is called upon to enter into an examination of the reservation in the light of considerations which are not presented by the issues in the proceedings. The Court, without prejudging the question, gives effect to the reservation as it stands and as the Parties recognize it” (at 27). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) 1998 The Court did not refer to a ‘principle’; it instead cited to its 1952 precedent. “In the light of this practice, the additional phrase of the sentence [in Nigeria’s declaration of the acceptance of the Court’s jurisdiction], ‘that is to say, on the sole condition of reciprocity’ must be understood as explanatory and not adding any further condition. This interpretation is ‘in harmony with a natural and reasonable way of reading the text’” (at ¶45). Fisheries Jurisdiction (Spain v. Can.), Judgment [1998] i.c.j. 432 (4 Dec.) 1998 “The régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties […] The Court observes that the provisions of that [Vienna] Convention [on the Law of Treaties] may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction” (at ¶46). “[T]he Court has in earlier cases elaborated the appropriate rules for the interpretation of declarations and reservations. Every declaration ‘must be interpreted as it stands, having regard to the words actually used’ (Anglo-Iranian Oil Co. […]). Every reservation must be given ­effect ‘as it stands’ (Certain Norwegian Loans, Judgment […]). Therefore, declarations and reservations are to be read as a whole. Moreover, ‘the

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Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text’. (Anglo-Iranian Oil Co. […]) […] [S]ince a declaration under Article 36, paragraph 2, of the Statute, is a unilaterally drafted instrument, the Court has not hesitated to place a certain emphasis on the intention of the depositing State. Indeed, in the case concerning Anglo-Iranian Oil Co., the Court found that the limiting words chosen in Iran’s declaration were ‘a decisive confirmation of the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court’” (at ¶¶47–48). “The Court will thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court. The intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served. In the Aegean Sea Continental Shelf case, the Court affirmed that it followed clearly from its jurisprudence that in interpreting the contested reservation “regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time” (Aegean Sea Continental Shelf […]). In the present case the Court has such explanations in the form of Canadian ministerial statements, parliamentary debates, legislative proposals and press communiqués. Where, moreover, an existing declaration has been replaced by a new declaration which contains a reservation, as in this case, the intentions of the Government may also be ascertained by comparing the terms of the two instruments” (at ¶¶49–50). “The Court will begin by once again pointing out that declarations of acceptance of its jurisdiction must be interpreted in a manner which is in harmony with the ‘natural and reasonable’ way of reading the text, having due regard to the intention of the declarant […] In the opinion of the Court the interpretation proposed by Spain cannot be accepted,

Digest of General Principles

605

for it runs contrary to a clear text, which, moreover, appears to express the intention of its author” (at ¶76). The Court said that “Spain’s position is not in conformity with the principle of interpretation whereby a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with appropriate regard for the intentions of the reserving State and the purpose of the reservation” (at ¶54). This general principle applies also when the State made a reservation for a potentially internationally wrongful act. “The holding of the Court relied on by Spain in the Right of Passage over Indian Territory case, which was concerned with a possible retroactive effect of a reservation, does not detract from this principle. The fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations” (at ¶54). 146

General principle that special words override the general expressions (lex specialis derogat legi generali) Type: Interpretative Underpinning: Judicial Recurrence: none

Serbian Loans, Judgment [1929] p.c.i.j. (ser.A) No. 20 (12 July) 1929 “The special words, according to the elementary principles of interpretation, control the general expressions” (at 30). d 147

General Principles Interpreting Customary International Law General principle that only if State abstentions are based on their being conscious of having a duty to abstain is it possible to speak of international custom Type: Interpretative Underpinning: Judicial Recurrence: appearing in 1 pcij and 1 icj decision

606 1927

Digest of General Principles

“Lotus”, Judgment [1927] p.c.i.j. (ser.A) No. 10 (7 Sept.) The Court was “ascertain[ing] whether a rule specially applying to collision cases has grown up, according to which criminal proceedings regarding such cases come exclusively within the jurisdiction of the State whose flag is flow” (at 27–28). France argued that “prosecutions only occur before the courts of the State whose flag is flown and that that circumstance is proof of a tacit consent on the part of States and, consequently, shows what positive international law is in collision cases” (at 28), but the Court rejected this contention. “In the Court’s opinion, this conclusion is not warranted. Even if the rarity of the judicial decisions to be found among the reported cases were sufficient to prove in point of fact the circumstance alleged by the Agent for the French Government, it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true” (at 28).

1969

e 148

North Sea Continental Shelf (Ger./Neth.; Ger./Den.), Judgment [1969] i.c.j. 3 (20 Feb.) “[T]he Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case [… that] ‘for only if such ­abstention [in instituting criminal proceedings] were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom’” (at ¶78). General Principles Interpreting International Decisions General principle of res judicata Type: Interpretative Underpinning: International, Judicial Recurrence: 4 pcij and 33 icj decisions

Digest of General Principles

607

Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11 (16 May) 1925 The Court referred to res judicata as a ‘doctrine’ (at 21, 30). “[I]t must be remembered that the Court of Arbitration applied the doctrine of res judicata because not only the Parties but also the matter in dispute was the same” (at 30). Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment [1927] p.c.i.j. (ser.A) No. 13 (16 Dec.) 1927 The Court referred to res judicata, but did not refer to it as a ‘principle’. “As has been recalled above, the Court, by that Judgment, decided that the attitude of the Polish Government in regard to the Oberschlesische was not in conformity with the provisions of the Geneva Convention. This conclusion […] has now indisputably acquired the force of res judicata” (at 20). “[T]he obligation incumbent upon the Court under Article 60 of the Statute to construe its judgments at the request of any Party, cannot be set aside merely because the interpretation to be given by the Court might possibly be of importance in another case which is pending. The interpretation adds nothing to the decision, which has acquired the force of res judicata, and can only have binding force within the limits of what was decided in the judgment construed” (at 21). Factory at Chorzów (Merits), Judgment [1928] p.c.i.j. (ser.A) No. 17 (13 Sept.) 1928 The Court said that “it remains to be ascertained whether a breach of an international engagement has in fact taken place in the case under consideration. Now this point is res judicata. The non-conformity of Poland’s attitude in respect of the two Companies with Article 6 and the following articles of the Geneva Convention is established by No. 2 of the operative provisions of Judgment No. 7. The application of the principle to the present case is therefore evident” (at 29). Société Commerciale de Belgique, Judgment [1939] p.c.i.j. (ser.A/B) No. 78 (15 June) 1939 The Court did not refer to res judicata as a ‘principle’. It said that “­recognition of an award as res judicata means nothing else than

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r­ ecognition of the fact that the terms of that award are definitive and obligatory” (at 175). The Parties in this case were in agreement as to the application of res judicata to the Mixed Arbitral Tribunal’s awards between Belgium and Société Commerciale de Belgique. “[T]he two Parties are in agreement: the Belgian Government asks the Court to say that the arbitral awards have the force of res judicata, and the Greek Government asks the Court to declare that it recognizes that they possess this force” (at 175). The Court in the holding confirmed that the “arbitral awards […] are definitive and obligatory” (at 178; holding). Corfu Channel (U.K. v. Alb.), Compensation [1949] i.c.j. 15 (15 Dec.) 1949 “As has been said above, the Albanian Government disputed the jurisdiction of the Court with regard to the assessment of damages. The Court may confine itself to stating that this jurisdiction was established by its Judgment of April 9th, 1949; that, in accordance with the Statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian Government, that Judgment is final and without appeal, and that therefore the matter is res judicata” (at 248). Haya de la Torre (Colom. v. Peru), Judgment [1951] i.c.j. 71 (13 June) 1951 “[T]he Court observes that the Memorandum attached to the Declaration of Intervention of the Government of Cuba is devoted almost entirely to a discussion of the questions which the Judgment of November 20th, 1950, had already decided with the authority of res judicata” (at 77). Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion [1954] i.c.j. 47 (13 July) 1954 “According to a well-established and generally recognized principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute. It must therefore be examined who are to be regarded as parties bound by an award of compensation made in favour of a staff member of the United Nations whose contract of service has been terminated without his assent” (at 53).

Digest of General Principles

609

Northern Cameroons (Cameroon v. U.K.), Preliminary Objections [1963] i.c.j. 15 (2 Dec.) 1963 “[T]he Court has not felt called upon to pass expressly upon the several submissions of the Respondent, in the form in which they have been cast. The Court finds that the proper limits of its judicial function do not permit it to entertain the claims submitted to it in the Application of which it has been seised, with a view to a decision having the authority of res judicata between the Republic of Cameroon and the United Kingdom. Any judgment which the Court might pronounce would be without object” (at 38). Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) (New Application: 1962), Preliminary Objections [1964] i.c.j. 6 (24 July) 1964 “The right of objection given to a respondent State which has taken a step in the proceedings is protective, to enable it to insist on the case continuing, with a view to bringing about a situation of res judicata; or in other words (perhaps more pertinent for the present case), to enable it to ensure that the matter is finally disposed of for good” (at 20). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Judgment [1966] i.c.j. 6 (18 July) 1966 “As regards the issue of preclusion, the Court finds it unnecessary to pronounce on various issues which have been raised in this connection, such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of that term, whether it ranks as a ‘decision’ for the purposes of Article 59 of the Court’s Statute, or as ‘final’ within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection” (at ¶59). Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), Judgment [1985] i.c.j. 192 (10 Dec.) 1985 The Court considered the ‘significance of the principle of res judicata’ (at 192; abstract). “[T]he Court considers it useful, before proceeding further, to make certain observations as to the meaning of ‘binding force’ and the

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s­ ignificance of the principle of res judicata in the circumstances of the present case […] It is always open to the parties to a dispute to have recourse to a conjunction of judicial determination and settlement by agreement” (at ¶47). “While the Parties requested the Court to indicate ‘what principles and rules of international law may be applied for the delimitation of the area of the continental shelf’, they may of course still reach mutual agreement upon a delimitation that does not correspond to that decision […] What should be emphasized is that, failing such mutual agreement, the terms of the Court’s Judgment are definitive and binding” (at ¶48). “The fact […] that the Parties did not entrust the Court in this case with the task of drawing the delimitation line itself in no way affects the Judgment of the Court or its binding effect on the Parties as a matter of res judicata” (at ¶48). “[T]here is a dispute as to what in the 1982 Judgment has been decided with binding force” (at ¶55). “The Court is […] at present seised of a request for interpretation of a previous judgment; and as the Permanent Court of International Justice observed, such an interpretation: ‘adds nothing to the decision, which has acquired the force of res judicata, and can only have binding force within the limits of what was decided in the judgment construed’” (at ¶65). “The Court in its 1982 Judgment could of course have determined this point, if necessary by appointing an expert for the purpose, since according to the Court the point was a necessary element in the decision as to the practical method to be used. Nevertheless it did not do so, preferring to leave this task to the experts of the Parties. Its decision in this respect is covered by the force of res judicata. This does not, however, mean that the force of res judicata is such as to prevent the Parties returning to the Court to present a joint request that it should order an expert survey to establish the precise co-ordinates of the most westerly point of the Gulf of Gabes. But they would have to do so by means of an agreement” (at ¶66).

Digest of General Principles

611

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Judgment [1986] i.c.j. 14 (27 June) 1986 “It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata” (at ¶284). Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment [1988] i.c.j. 69 (10 Dec.) 1988 The Court did not refer to this norm as a ‘principle’; it mentioned it in the abstract as ‘res judicata’ (at 69; abstract). The Court said that “it [cannot] be accepted that once the Court has given judgment in a case involving certain allegations of fact, and made findings in that respect, no new procedure can be commenced in which those, as well as other, facts might have to be considered. In any event, it is for the Parties to establish the facts in the present case taking account of the usual rules of evidence, without it being possible to rely on considerations of res judicata in another case not involving the same parties (see Article 59 of the Statute)” (at ¶54). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Application by Nicaragua for Permission to Intervene [1990] i.c.j. 92 (13 Sept.) 1990 “El Salvador’s argument starts from the proposition that the 1917 Judgement of the Central American Court is res judicata between El Salvador and Nicaragua. The Chamber has noted above (paragraph 28) that in 1917 Nicaragua informed the States of Central America that it did not accept that Judgement. That very question of res judicata, even though not directly in issue before the Chamber since El Salvador does not contend that Honduras was a party to the case and as such bound by the decision, underlies the asserted opposability of the Judgement to Honduras, so that a decision on such opposability may affect the interests of Nicaragua” (at ¶71). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 “The 1917 Judgement [by the Central American Court of Justice, between El Salvador and Nicaragua] is therefore a valid decision of a

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competent Court [but] [o]bviously it could not be res judicata between the Parties in the present case […] It does not appear, therefore, that this Chamber is at present required now to pronounce upon whether the 1917 Judgement is res judicata between the States parties to it, only one of which is a Party to the present proceedings” (at ¶402). “In truth, however, the question of the existence or not of a res judicata arising from a case with two parties is not helpful in a case raising a question of a joint sovereignty of three coastal States […] In short, the Chamber must make up its own mind on the status of the waters of the Gulf, taking such account of the 1917 decision as it appears to the Chamber to merit” (at ¶403). “[T]he force of res judicata does not operate in one direction only: if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the binding force of the judgment against the other parties. A non-party to a case before the Court, whether or not admitted to intervene, cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties. In the present case, El Salvador requested the Chamber to deny the permission to intervene sought by Nicaragua; neither Party has given any indication of consent to Nicaragua’s being recognized to have any status which would enable it to rely on the Judgment. The Chamber therefore concludes that in the circumstances of the present case, this Judgment is not res judicata for Nicaragua” (at ¶424). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Preliminary Objections [1998] i.c.j. 275 (11 June) 1998 Nigeria claimed that the Court’s 1957 Right of Passage decision was not applicable to it because of the principle of res judicata and Article 59 of the Court’s Statute. The Court replied that “[i]t is true that, in ­accordance with Article 59, the Court’s judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases” (at ¶28).

Digest of General Principles

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The Court also observed that “the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory. That solution should be maintained” (at ¶31). Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment [1999] i.c.j. 31 (25 Mar.) 1999 The abstract of this decision refers to the ‘primacy of the principle of res judicata’ (at 31; abstract). “The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained” (at ¶12). “It follows from the foregoing that the Court has already clearly dealt with and rejected, in its Judgment of 11 June 1998, the first of the three submissions presented by Nigeria at the end of its request for interpretation […] The Court would therefore be unable to entertain [these] submission[s] without calling into question the effect of the Judgment concerned as res judicata” (at ¶16). Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment [2001] i.c.j. 40 (16 Mar.) 2001 The Court did not consider the 1939 decision to be res judicata; it did, however, consider its ‘nature and legal significance’ (at 40; abstract). Bahrain argued that the 1939 arbitral award was res judicata. “Bahrain maintains that the British decision of 1939 must be considered primarily as an arbitral award, which is res judicata” (at ¶111). The Court found that the decision to which Bahrain was referring was not an arbitral award and said that “[t]he fact that a decision is not an arbitral award does not however mean that the decision is devoid of legal effect, as was acknowledged by the Court of Arbitration in the Dubai/ Sharjah Border Arbitration […] In order to determine the legal effect of the 1939 British decision, the events which preceded and immediately followed its adoption need to be recalled” (at ¶117).

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Legality of Use of Force (Serb. & Montenegro v. Italy), Preliminary Objections [2004] i.c.j. 865 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶79). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶97). Legality of Use of Force (Serb. & Montenegro v. Can.), Preliminary Objections [2004] i.c.j. 429 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶79). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶97). Legality of Use of Force (Serb. & Montenegro v. U.K.), Preliminary Objections [2004] i.c.j. 1307 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶78). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶96).

Digest of General Principles

615

Legality of Use of Force (Serb. & Montenegro v. Fr.), Preliminary Objections [2004] i.c.j. 575 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶79). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶97). Legality of Use of Force (Serb. & Montenegro v. Germ.), Preliminary Objections [2004] i.c.j. 720 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶78). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶96). Legality of Use of Force (Serb. & Montenegro v. Belg.), Preliminary Objections [2004] i.c.j. 279 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶80). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶98).

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Legality of Use of Force (Serb. & Montenegro v. Port.), Preliminary Objections [2004] i.c.j. 1160 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶79). “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶100). Legality of Use of Force (Serb. & Montenegro v. Neth.), Preliminary ­Objections [2004] i.c.j. 1011 (15 Dec.) 2004 “A further point to consider is the relevance to the present case of the Judgment in the Application for Revision case, of 3 February 2003. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined” (at ¶79). “The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’” (at ¶97). Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment [2005] i.c.j. 168 (19 Dec.) 2005 “It goes without saying […] as the Court has had the opportunity to state in the past, ‘that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata’” (at ¶260). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 The Court referred to res judicata as a ‘principle’. “Both Parties recognize that each of these Judgments [the Court’s cases concerning the Legality of Use of Force] has the force of res judicata

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in the specific case for the parties thereto; but they also recognize that these Judgments, not having been rendered in the present case, and involving as parties States not parties to the present case, do not constitute res judicata for the purposes of the present proceedings” (at ¶84). “The previous decisions of the Court in this case, and in the Application for Revision case, have been briefly recalled above […] They will be referred to more fully below (paragraphs 105–113) for the purpose of (in particular) an examination of the contentions of Bosnia and Herzegovina on the question of res judicata” (at ¶87). “On 8 April 1993, the Court made an Order in this case indicating certain provisional measures […] The Order contained the reservation, normally included in orders on requests for provisional measures, that ‘the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case…and leaves unaffected the right of the Governments of BosniaHerzegovina and Yugoslavia to submit arguments in respect of [that question]’ […] It is therefore evident that no question of res judicata arises in connection with the Order of 8 April 1993” (at ¶105). “The Court will now consider the principle of res judicata, and its application to the 1996 Judgment in this case […] There is no dispute between the Parties as to the existence of the principle of res judicata even if they interpret it differently as regards judgments deciding questions of jurisdiction” (at ¶¶114–115). “The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose” (at ¶115). “Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end […] Secondly, it is in the interest of each party that an issue which has already been

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a­ djudicated in favour of that party be not argued again […] Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes” (at ¶116). “The Court […] observe[s] that the decision on questions of jurisdiction, pursuant to Article 36, paragraph 6, of the Statute, is given by a judgment, and Article 60 of the Statute provides that ‘[t]he judgment is final and without appeal’, without distinguishing between judgments on jurisdiction and admissibility, and judgments on the merits” (at ¶117). “[J]urisdictional decisions [do not] remain reviewable indefinitely, nor that the Court may, proprio motu or otherwise, reopen matters already decided with the force of res judicata” (at ¶118). The Court’s Statute “declares, in Article 60, the res judicata principle without exception” (at ¶119). “[I]n the view of the Court, these too [certain jurisprudence of the European Court of Human Rights, and an arbitral decision of the German-Polish Mixed Arbitral Tribunal], being based on their particular facts, and the nature of the jurisdictions involved, do not indicate the existence of a principle of sufficient generality and weight to override the clear provisions of the Court’s Statute, and the principle of res ­judicata” (at ¶119). “As noted above […] the fry’s Application for revision of the 1996 Judgment in this case was dismissed, as not meeting the conditions of Article 61. Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events” (at ¶120). “The operative part of a judgment of the Court possesses the force of res judicata” (at ¶123). “In the view of the Court, if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each case

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having regard to the context in which the judgment was given” (at ¶125). “[I]n respect of a particular judgment it may be necessary to distinguish between, first, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly any peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all” (at ¶126). “If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it” (at ¶126). “[T]he fact that a judgment may, in addition to rejecting specific preliminary objections, contain a finding that ‘the Court has jurisdiction’ in the case does not necessarily prevent subsequent examination of any jurisdictional issues later arising that have not been resolved, with the force of res judicata, by such judgment […] the fact that the Court has in these past cases dealt with jurisdictional issues after having delivered a judgment on jurisdiction does not support the contention that such a judgment can be reopened at any time, so as to permit reconsideration of issues already settled with the force of res judicata” (at ¶¶127–128). “[R]es judicata could not extend to the proceedings in the cases that were then before it, between different parties” (at ¶135). “The Court thus considers that the 1996 Judgment contained a finding […] The force of res judicata attaching to that judgment thus extends to that particular finding” (at ¶136). “That principle [of res judicata] signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case […] once a finding in favour of jurisdiction has been ­pronounced with the force of res judicata, it is not open to question or

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re-examination, except by way of revision under Article 61 of the ­Statute” (at ¶138). “[O]nce the Court has determined, with the force of res judicata, that it has jurisdiction, then for the purposes of that case no question of ultra vires action can arise, the Court having sole competence to determine such matters under the Statute. For the Court res judicata pro veritate habetur, and the judicial truth within the context of a case is as the Court has determined it, subject only to the provision in the Statute for revision of judgments. This result is required by the nature of the judicial function, and the universally recognized need for stability of legal relations” (at ¶139). “The Court accordingly concludes that […] State having the capacity to come before the Court under the Statute, the principle of res judicata precludes any reopening of the decision embodied in the 1996 Judgment […] in the light of the conclusion that the Court has reached as to the res judicata status of the 1996 decision, it does not find at present the necessity to do so” (at ¶¶140–141). “The Court has already examined above the question of the authority of res judicata attaching to the 1996 Judgment, and indicated that it cannot reopen issues decided with that authority” (at ¶152). “A second issue about the res judicata effect of the 1996 Judgment concerns the territorial limits, if any, on the obligations of the States parties to prevent and punish genocide […] The Court did not in 1996 rule on the territorial scope of each particular obligation arising under the Convention. Accordingly the Court has still to rule on that matter. It is not res judicata” (at ¶¶153–154). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment [2007] i.c.j. 659 (8 Oct.) 2007 The Court said that the 1906 arbitral award is res judicata for the Parties in the determination of their land boundary. “The Parties are in the best position to monitor the situation as the shape of Cape Gracias a Dios evolves and to arrange a solution in

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a­ ccordance with the 1906 Arbitral Award, which remains res judicata for the land boundary” (at ¶310). In the holding – without referring to res judicata – the Court mentioned that “the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line of that portion of the territorial sea located between the endpoint of the land boundary as established by the 1906 Arbitral Award” (at ¶321; holding). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections [2008] i.c.j. 412 (18 Nov.) 2008 “While some of the facts and the legal issues dealt with in those cases arise also in the present case, none of those decisions were given in proceedings between the two Parties to the present case (Croatia and Serbia), so that, as the Parties recognize, no question of res judicata arises” (at ¶53). “The Judgment of 11 July 1996 on jurisdiction in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide […] to which the Court gave full effect as res judicata in its 2007 Judgment on the merits in the same case, does not of itself have any authority as res judicata in the present case” (at ¶69). “The two Parties further agree that the position adopted by the Court in those [2004] cases does not have the force of res judicata in the present case, because those Judgments were rendered in different cases which did not involve the same parties” (at ¶71). “There can be no doubt that for purposes of the present case the aforementioned Judgments of 2004 do not have force of res judicata on this – or any other – point, since they were given in different cases which did not involve the same parties, as has already been noted above with respect to another aspect of those Judgments” (at ¶76). “As for the Court itself […] these decisions do not have the status of res judicata in the present proceedings. [However,] [i]n general the Court does not choose to depart from previous findings, particularly when

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similar issues were dealt with in the earlier decisions, as in the current case, unless it finds very particular reasons to do so” (at ¶104). “In the present case, the Court therefore cannot draw from that [1996] judgment (which, as already noted, does not have the authority of res judicata in the present proceedings) any definitive conclusion as to the temporal scope of the jurisdiction it has under the Convention” (at ¶123). “As has already been indicated […] this [2007] decision does not have the force of res judicata in the present proceedings, but the Court sees no reason to depart from its earlier finding on the general question of interpretation of the Convention in this respect. The Court will have to decide how these findings of law are to be applied, and what may be their effect in the present case” (at ¶141). Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Honduras for Permission to Intervene [2011] i.c.j. 420 (4 May) 2011 The Court considered the application of the general principle of res judicata. “It is a well-established and generally recognized principle of law that a judgment rendered by a judicial body has binding force between the parties to the dispute […] The Court notes that in ascertaining the scope of res judicata of the 2007 Judgment, it must consider Honduras’s request in the specific context of the case […] The Court is of the view that the course of the bisector line as determined in point (3) of the operative clause of its 2007 Judgment (paragraph 321) is clear. In point (3) of its operative clause, which indisputably has the force of res judicata”. (at ¶¶67, 69). “In the Nicaragua v. Honduras case in which the 2007 Judgment was rendered, one of Honduras’s principal arguments with respect to the delimitation was that the 15th parallel […] The Court in that judgment, however, rejected both of these legal grounds and gave no effect to the 15th parallel as the boundary line. By virtue of the 2007 Judgment therefore, the 15th parallel plays no role in the consideration of the maritime delimitation between Honduras and Nicaragua. In other words, the matter has rested on res judicata for Honduras in the present proceedings” (at ¶61).

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“What was decided by the Court with respect to the maritime delimitation between Honduras and Nicaragua in the Caribbean Sea is definitive. Honduras could not be a ‘third State’ in the legal relations in that context for the reason that it was itself a party to the proceedings. So long as there are no third-State claims, the boundary is to run indisputably on the course defined by the Court” (at ¶64). ‘By virtue of the principle of res judicata, as applied to the Court’s 8 October 2007 Judgment, Honduras cannot have an interest of a legal nature in the area south of the bisector line established by the Court in that Judgment’ (at 422; abstract). Questions relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment [2012] i.c.j. 422 (20 July) 2012 The Court referred to the Court of Justice of the Economic Community of West African States, which declared that “Senegal should respect the rulings handed down by its national courts and, in particular, abide by the principle of res judicata, and ordered it accordingly to comply with the absolute principle of non-retroactivity” (at ¶35). Frontier Dispute (Burk. Faso/Niger), Judgment [2013] i.c.j. 44 (16 Apr.) 2013 “[S]ince there is an obligation to comply both with international agreements and with Judgments of the Court, the ‘force of res judicata’ with which, according to Burkina Faso, the delimitation effected in the two sectors in question would be endowed if the Court acceded to its request would not reinforce the binding character of that delimitation” (at ¶53). Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai.), Judgment [2013] i.c.j. 281 (11 Nov.) 2013 “The Court recalls that the process of interpretation is premised upon the ‘primacy of the principle of res judicata’ which ‘must be maintained’” (at ¶55). Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (­Nicar. v. Colom.), Preliminary Objections [2016] i.c.j. 100 (17 Mar.) 2016 “The Court will now examine the res judicata principle and its application to subparagraph 3 of the operative clause of the 2012 Judgment,

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in which the Court found ‘that it cannot uphold the Republic of Nicaragua’s claim contained in its final submission i(3)’ […] The question as to the effect of the res judicata principle relates to the admissibility of Nicaragua’s First Request” (at ¶¶49, 53). “Even if their views converge on the elements that constitute the principle of res judicata, the Parties disagree on the meaning of the decision adopted by the Court in subparagraph 3 of the operative clause of its 2012 Judgment, and hence on what falls within the scope of res ­judicata in that decision” (at ¶54). “The Parties agree that the principle of res judicata requires an identity between the parties (personae), the object (petitum) and the legal ground (causa petendi). They likewise accept that this principle is reflected in Articles 59 and 60 of the Statute of the Court […] As the Court underlined in its [1999] Judgment […] ‘[t]he language and structure of Article 60 reflect the primacy of the principle of res judicata’” (at ¶55). “The Court recalls that the principle of res judicata, as reflected in Articles 59 and 60 of its Statute, is a general principle of law which protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal […] This principle establishes the finality of the decision adopted in a particular case” (at ¶58). “It is not sufficient, for the application of res judicata, to identify the case at issue, characterized by the same parties, object and legal ground; it is also necessary to ascertain the content of the decision, the finality of which is to be guaranteed. The Court cannot be satisfied merely by an identity between requests successively submitted to it by the same parties; it must determine whether and to what extent the first claim has already been definitively settled” (at ¶59). “The Court underlined in its [2007] Judgment […] that ‘[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular

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matter is or is not contained in it’ […] The decision of the Court is contained in the operative clause of the judgment. However, in order to ascertain what is covered by res judicata, it may be necessary to determine the meaning of the operative clause by reference to the reasoning set out in the judgment in question” (at ¶¶60–61). “The Court concludes that it is not precluded by the res judicata principle from ruling on the Application submitted by Nicaragua on 16 September 2013” (at ¶88). Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. ­Nicar.), Judgment [2018] i.c.j. (2 Feb.) 2018 “The Court has previously had the occasion to emphasize that ‘the principle of res judicata, as reflected in Articles 59 and 60 of its Statute, is a general principle of law which protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal’ […] However, for res judicata to apply in a given case, the Court ‘must determine whether and to what extent the first claim has already been definitively settled’ […] for ‘[i]f a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it’” (at ¶68). “These passages indicate that no decision was taken by the Court in its 2015 Judgment on the question of sovereignty concerning the coast of the northern part of Isla Portillos, since this question had been expressly excluded. This means that it is not possible for the issue of sovereignty over that part of the coast to be res judicata” (at ¶69). Maritime Delamination in the Caribbean Sea and the Pacific Ocean (­Costa Rica v. Nicar.), Judgment [2018] i.c.j. (2 Feb.) 2018 “The Court has previously had the occasion to emphasize that ‘the principle of res judicata, as reflected in Articles 59 and 60 of its Statute, is a general principle of law which protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal’ […] However, for res judicata to apply in a given case, the Court ‘must determine whether and to what extent the first claim has already been definitively settled’ […] for ‘[i]f a matter has not in fact been determined, expressly or

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by necessary implication, then no force of res judicata attaches to it’” (at ¶68). “These passages indicate that no decision was taken by the Court in its 2015 Judgment on the question of sovereignty concerning the coast of the northern part of Isla Portillos, since this question had been ­expressly excluded. This means that it is not possible for the issue of ­sovereignty over that part of the coast to be res judicata” (at ¶69). 149

General principle that reliance on the principle that a decision in a judgment or an arbitral award can only be opposed to the Parties Type: Interpretative Underpinning: Judicial Recurrence: none

Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.) 1992 “Honduras has […] in its pleadings in the present case, made clear its reliance on the principle that a decision in a judgment or an arbitral award ‘can only be opposed to the parties’” (at ¶402). f 150

General Principles Delineating International Law from Domestic Law General principle that international law prevails over national law Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij decisions and 1 icj decision

Greco-Bulgarian “Communities”, Advisory Opinion [1930] p.c.i.j. (ser.B) No. 17 (31 July) 1930 “[I]t is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the ­treaty” (at 32). The Court stated in the holding that “[s]hould a proper application of the Convention be in conflict with some local law, the latter would not prevail as against the Convention” (at 35; holding; see also at 33).

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Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44 (4 Feb.) 1932 “[A] State cannot adduce as against another State its own Con­ stitution with a view to evading obligations incumbent upon it under international law or treaties in force” (at 24). The Court considered this statement as part of the “generally accepted principles” (ibid.). Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion [1988] i.c.j. 12 (26 Apr.) 1988 “It would be sufficient to recall the fundamental principle of international law that international law prevails over domestic law. This principle was endorsed by judicial decision as long ago as the arbitral award of 14 September 1872 in the Alabama case between Great Britain and the United States, and has frequently been recalled since, for example in the case concerning the Greco-Bulgarian “Communities” in which the Permanent Court of International Justice laid it down that ‘it is a generally accepted principle of international law that in the ­relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty’” (at ¶57). The Court noted that this general principle had also been used by the Secretary-General in his reply to the United States. “The SecretaryGeneral, in his reply of 15 March 1988 to the letter from the United States Acting Permanent Representative, disputed the view there expressed, on the basis of the principle that international law prevails over domestic law” (at ¶47). 151

General principle that the considerations of domestic law cannot relieve in any event the State of its international obligations Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij and 7 icj decisions

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Free Zones of Upper Savoy and the District of Gex (Second phase), Order [1930] p.c.i.j. (ser.A) No. 24 (6 Dec.) 1930 In this order, the Court said that “France cannot rely on her own legislation to limit the scope of her international obligations” (at 12). Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion [1932] p.c.i.j. (ser.A/B) No. 44 (4 Feb.) 1932 The Court said that “the question of the treatment of Polish nationals or other persons of Polish origin or speech must be settled exclusively on the bases of the rules of international law and the treaty provisions in force between Poland and Danzig” (at 24). “It should however be observed that, while on the one hand, according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted, on the other hand and conversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force” (at 24). The Court also noted the “principle that in general the application of a constitution is essentially a matter of domestic concern” (at 23). Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), Judgment [1992] i.c.j. 351 (11 Sept.). 1992 “El Salvador for its part accepts the well-established rule in international law that ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’ […] and does not attempt to elevate the Constitution over the international obligations of El Salvador” (at ¶377). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections [1996] i.c.j. 595 (11 July) 1996 “The Court does not, in order to rule on that objection, have to consider the provisions of domestic law which were invoked in the course of the proceedings either in support of or in opposition to that

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o­ bjection. According to international law, there is no doubt that every Head of State is presumed to be able to act on behalf of the State in its international relations” (at ¶44). Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment [2006] i.c.j. 6 (3 Feb.) 2006 “[I]n the Court’s view the question of the validity and effect of the décret-loi within the domestic legal order of Rwanda is different from that of its effect within the international legal order. Thus a clear distinction has to be drawn between a decision to withdraw a reservation to a treaty taken within a State’s domestic legal order and the implementation of that decision by the competent national authorities within the international legal order, which can be effected only by notification of withdrawal of the reservation to the other States parties to the treaty in question […] The Court observes that in this case it has not been shown that Rwanda notified the withdrawal of its reservations to the other States parties to the ‘international instruments’ […] In order to have effect in international law, the withdrawal would have had to be the subject of a notice received at the international level” (at ¶¶41–42). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment [2007] i.c.j. 43 (26 Feb.) 2007 “The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law” (at ¶392). Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), Judgment [2008] i.c.j. 177 (4 June) 2008 The Court invoked the treaty (and customary) counterpart of this general principle, namely, Article 27 of the Vienna Convention on the Law of Treaties, which provides that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. ­Article 27 is limited only to treaty obligations. The Court said that “[it] sees no reason why the rule of customary law reflected in Article 27 of the Vienna Convention on the Law of Treaties

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would be applicable in this instance. In fact, here the requested State is invoking its internal law not to justify an alleged failure to perform the international obligations contained in the 1986 Convention, but, on the contrary, to apply them according to the terms of that Convention” (at ¶124). Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), Judgment [2009] i.c.j. 3 (19 Jan.) 2009 The Court reiterated ‘the principle that considerations of domestic law cannot in any event relieve the Parties of obligations deriving from judgments of the Court’ (at 3; abstract). The Court referred to it as a ‘principle’ only in the abstract (at 3), while outlining the content of this general principle in paragraph 47. “[T]the Court observes that considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation. A choice of means was allowed to the United States in the implementation of its obligation and, failing success within a reasonable period of time through the means chosen, it must rapidly turn to alternative and effective means of attaining that result” (at ¶47). Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment [2012] i.c.j. 422 (20 July). 2012 As in Certain Questions of Mutual Assistance in Criminal Matters, the Court invoked only the treaty and customary counterpart of this general principle, reflected in Article 27 of the Vienna Convention on the Law of Treaties. It said that “under Article 27 of the Vienna Convention on the Law of Treaties, which reflects customary law, Senegal cannot justify its breach of the obligation provided for in Article 7, paragraph 1, of the Convention against Torture by invoking provisions of its internal law, in particular by invoking the decisions as to lack of jurisdiction rendered by its courts in 2000 and 2001, or the fact that it did not adopt the necessary legislation pursuant to Article 5, paragraph 2, of that Convention until 2007” (at ¶113).

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631

General principle that a State is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligation undertaken Type: Interpretative Underpinning: International Recurrence: none

Exchange of Greek and Turkish Population, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 10 (21 Feb.) 1925 “This clause [Article 18 of the Convention for the Exchange of Greek and Turkish Populations], however, merely lays stress on a principle which is self-evident, according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken” (at 20). g 153

1994

2002

Other Interpretative General Principles General principle of intertemporal law Type: Interpretative Underpinning: Judicial Recurrence: 2 icj decisions Territorial Dispute (Libya/Chad), Judgment [1994] i.c.j. 6 (3 Feb.) The Court did not refer to intertemporal law as a ‘principle’, and did not apply it. It merely stated that it “does not need to consider the rules of intertemporal law” (at ¶76). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea intervening), Judgment [2002] i.c.j. 303 (10 Oct.) “Even if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present dispute” (at ¶205).

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Digest of General Principles

154

General principle that a limitation of the sovereignty must be construed restrictively Type: Interpretative Underpinning: Judicial Recurrence: 3 pcij and 2 icj decisions

Free Zones of Upper Savoy and the District of Gex (Second phase), Order [1930] p.c.i.j. (ser.A) No. 24 (6 Dec.) 1930 The Court only said that “in case of doubt, a limitation of sovereignty must be construed restrictively […] it follows from this principle that the Court cannot envisage the adoption in its judgment of provisions modifying the territorial delimitation of the zones, unless the French Government consents thereto” (at 12). Free Zones of Upper Savoy and the District of Gex, Judgment [1932] p.c.i.j. (ser.A/B) No. 46 (7 June) 1932 In this case, “the Court observe[d] […] that in case of doubt a limitation of sovereignty must be construed restrictively” (at 167). Minority Schools in Albania, Advisory Opinion [1935] p.c.i.j. (ser.A/B) No. 64 (6 Apr.) 1935 “[A]s the minority régime is an extraordinary régime, constituting a derogation from the ordinary law, the text in question should, in case of doubt, be construed in the manner most favourable to the sovereignty of the Albanian State” (at 15). Nuclear Tests (Austl. v. Fr.), Judgment [1974] i.c.j. 253 (20 Dec.) 1974 “When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for” (at ¶44). Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.), Judgment [2008] i.c.j. 12 (23 May) 2008 “[T]he Court recalls that when it is claimed that ‘States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for’” (at ¶229).

Digest of General Principles

155

633

General principle that the right of giving authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it | General principle of ejus est interpretare legem cujus condere Type: Interpretative Underpinning: Judicial Recurrence: 2 pcij decisions

Question on Jaworzina, Advisory Opinion [1923] p.c.i.j. (ser.B) No. 8 (6 Dec.) 1923 “Without succes [sic] it has been maintained against this reasoning that the letter of November 13th, 1922, from the Conference of Ambassadors, which had already taken the decision of July 28th, is the most authoritative and most reliable interpretation of the intention expressed at that time, and that such an interpretation, being drawn from the most reliable source, must be respected by all, in accordance with the traditional principle: ejus est interpretare legem cujus condere” (at 37). “Even if it were possible to accept the assimilation between this decision and internal legislation (an assimilation on which this contention is based) to be well-founded, it will suffice, in order to reduce this objection to its true value, to observe that it is an established principle that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it” (at 37). The Court also said that “in the absence of an express agreement between the parties the Arbitrator is not competent to interpret, still less modify his award by revising it” (at 38). Polish Postal Service in Danzig, Advisory Opinion [1925] p.c.i.j. (ser.B) No. 11 (16 May) 1925 The Court did not mention the general principle of ejus est interpretare legem cujus condere, but instead identified the general principle that the decisions of the body are to be construed as being in conformity with the powers conferred upon it.

634

Digest of General Principles

The Court stated that “[the High Commissioner’s] decision should, if possible, be construed as being in conformity with the powers conferred upon him” (at 26). The Court explained that “the functions of the High Commissioner are of a judicial character and are limited to deciding questions submitted by one or other of the Parties. The High Commissioner, therefore, had no authority to decide questions which the Parties had not submitted to him” (ibid.). The Court concluded that “[i]n the present case, however, it is not necessary to apply this principle” (at 26). 156

General principle that the law should not be applied retrospectively to determine matters of legality and responsibility | General principle that the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred Type: Interpretative Underpinning: International Recurrence: none

Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), Judgment [2012] i.c.j. 99 (3 Feb.) 2012 “The Court observes that, in accordance with the principle stated in Article 13 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred” (at ¶58). “That is why the application of the contemporary law of State immunity to proceedings concerning events which occurred in 1943–1945 does not infringe the principle that law should not be applied retrospectively to determine matters of legality and responsibility” (at ¶93).

Appendices

∵

Appendix 1

Conclusions on General Principles Conclusion 1: General Principles Are ‘Principles’ and ‘Rules’ Sub-conclusions – General principles are rules that may be either broad or­ specific – General principles may have exceptions – General principles may or may not have names; how the Court refers to a general principle in its jurisprudence ­varies – Methods are not a modality of the sources of international law.

Conclusion 2: General Principles Are ‘Principles’ and ‘Rules’ of International Law Sub-conclusions – General principles are part of the positive/existing international law – The Court applies only international law – Domestic laws, including ‘domestic principles’, do not directly form part of international law – Doctrines and theories do not constitute general principles because they are not part of international law.

Conclusion 3: General Principles Apply to the Entire International Community Sub-conclusions – General principles are binding and form part of the general international law – General principles create rights and obligations – The Court’s interpretation of international law is valid for the entire international community – General principles apply equally and universally to all States and other international actors.

Conclusion 4: General Principles Are Ascertained with the Court’s Opinio Juris Sub-conclusions – General principles are ascertained with the Court’s opinio­ juris – States do not actively participate in the Court’s ascertainment of general ­principles – Individual judges cannot ascertain general principles for the entire ­international community.

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_014

Appendix 2

Dataset – Worksheet No. of decisions referring to a general principle pcij icj

Type

Total Substantive Procedural Interpretative

Underpinning

Domestic Int’l Judicial Total

Substantive General Principles (1) Law of Treaties #1 #2 #3 #4 #5 #6 #7

0 0 1 0 0 0 2

2 1 0 1 1 2 3

2 1 1 1 1 2 5

x x x x x x x

x x x x x x x

x

1 1 1 1 1 2 1

(2) Diplomatic and Consular Law #8 #9 #10 #11 #12

0 0 0 0 0

1 1 1 1 1

1 1 1 1 1

x x x x x

x x x x x

1 1 1 1 1

x x

1 1 1 1 1 1 1 1 1 1 1

(3) Law of State Sovereignty #13 #14 #15 #16 #17 #18 #19 #20 #21 #22 #23

3 0 1 2 1 0 0 0 0 0 0

7 6 0 0 0 1 3 3 3 6 3

10 6 1 2 1 1 3 3 3 6 3

x x x x x x x x x x x

x x x

© koninklijke brill nv, leiden, ���� | doi:10.1163/9789004400184_015

x x x x x x

639

Dataset – Worksheet

No. of decisions referring to a general principle pcij icj

Type

Total Substantive Procedural Interpretative

#24

0

1

1

x

#25 #26

0 0

1 2

1 2

x x

Underpinning

Domestic Int’l Judicial Total x x x

1 1 1

(4) Law of State Responsibility #27 #28 #29 #30 #31 #32

2 0 0 0 1 0

10 1 1 1 1 1

12 1 1 1 2 1

x x x x x x

x x x x x

x x

1 1 1 1 1 1

(5) Law of State Succession #33 #34 #35 #36 #37 #38

3 0 2 2 1 0

6 1 0 11 0 3

9 1 2 13 1 3

x x x x x x

x x x

x x x x x

1 1 2 2 1 1

(6) Law of Economic Relations #39 #40

1 1

2 1

3 2

x x

x x

1 1

(7) Reparation #41 #42 #43

5 1 1

20 7 0

25 7 1

x x x

x x

1 1 1

x x x

1 2 1 1 1 1 2 1

x

(8) Individuals, Peoples, International Organisations #44 #45 #46 #47 #48 #49 #50 #51

0 0 0 0 0 0 1 1

1 6 3 3 2 2 0 1

1 6 3 3 2 2 1 2

x x x x x x x x

x x

x x

x x x

640

Appendix 2

No. of decisions referring to a general principle pcij icj

Type

Total Substantive Procedural Interpretative

#52

1

1

2

x

#53 #54 #55 #56

0 1 4 6

1 0 1 2

1 1 5 8

x x x x

Underpinning

Domestic Int’l Judicial Total

x x x

x

1

x x

1 2 1 1

(9) International Maritime and River Law #57 #58 #59 #60 #61 #62 #63 #64 #65 #66 #67 #68 #69 #70 #71 #72 #73 #74 #75 #76 #77 #78 #79

0 1 3 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1

1 0 2 5 1 4 1 1 7 1 1 4 7 1 1 1 3 2 2 3 1 0 0

1 1 5 5 1 4 1 1 7 1 1 4 7 1 1 1 3 2 2 3 1 1 1

x x x x x x x x x x x x x x x x x x x x x x x

x x x x x x

x x

x x x x x x x x x x x x x x x x

x x

1 1 1 1 1 2 1 1 1 1 1 1 1 1 1 2 1 2 1 1 1 1 1

(10) International Humanitarian Law #80 #81 #82 #83

0 0 0 0

4 1 1 1

4 1 1 1

x x x x

x

x x

x x

2 1 1 1

641

Dataset – Worksheet

No. of decisions referring to a general principle pcij icj #84 #85

0 1

4 0

Type

Total Substantive Procedural Interpretative 4 1

Underpinning

Domestic Int’l Judicial Total

x x

x x

1 1

(11) Other Substantive General Principles #86 #87 #88 #89 #90 #91 #92 #93

0 0 0 1 0 1 1 1

1 3 1 4 1 0 0 0

1 3 1 5 1 1 1 1

x x x x x x x x

x x x x x x x x

1 1 1 1 1 1 1 1

Procedural General Principles (1) Court’s Jurisdiction #94 #95 #96 #97 #98 #99 #100 #101 #102

1 5 0 0 0 0 0 0 0

12 28 4 3 2 7 1 4 1

13 33 4 3 2 7 1 4 1

x x x x x x x x x

x x x

x x x x x x x x

2 2 1 2 1 1 1 1 1

x x x x x

1 1 1 1 1 1 1 1 2 2

x

(2) Procedure before the Court #103 #104 #105 #106 #107 #108 #109 #110 #111 #112

0 0 0 0 1 1 0 1 3 0

2 6 2 1 10 0 2 1 10 1

2 6 2 1 11 1 2 2 13 1

x x x x x x x x x x

x x x x x

x x

642

Appendix 2

No. of decisions referring to a general principle pcij icj #113 #114 #115

1 0 0

4 1 1

Type

Underpinning

Total Substantive Procedural Interpretative 5 1 1

Domestic Int’l Judicial Total

x x x

x

x x x

2 1 1

x x x x x x

1 1 1 1 1 1

x x x

1 1 1 1

x x x

1 1 1

x x x x x

1 1 1 1 1 1

x x

2 2

x

1

(3) Functioning of the Court / Court’s Competence #116 #117 #118 #119 #120 #121

0 1 0 1 1 0

1 5 7 5 3 1

1 6 7 6 4 1

x x x x x x (4) Standing before the Court

#122 #123 #124 #125

4 3 1 1

9 8 2 0

13 11 3 1

x x x x

x

(5) Facts and Evidence #126 #127 #128

0 0 0

2 1 19

2 1 19

x x x (6) Other Procedural General Principles

#129 #130 #131 #132 #133 #134

0 0 1 0 0 1

1 1 0 2 1 0

1 1 1 2 1 1

x x x x x x

x

Interpretative General Principles (1) Good Faith and Pacta Sunt Servanda #135 #136

3 2

28 5

31 7

x x

x x

x x

(2) General Principles Specific to Treaty Interpretation #137

0

1

1

x

643

Dataset – Worksheet

No. of decisions referring to a general principle pcij icj

Type

Underpinning

Total Substantive Procedural Interpretative

Domestic Int’l Judicial Total

#138

2

3

5

x

x

1

#139 #140 #141 #142

0 2 1 4

7 0 0 0

7 2 1 4

x x x x

x x x x

1 1 1 1

x x x x

1 1 1 1

x

1

x x

1 1

x x

1 1 1

x x x

1 1 1 1

(3) General Principles Not Specific to Treaty Interpretation #143 #144 #145 #146

2 1 0 1

9 8 4 0

11 9 4 1

x x x x

(4) General Principle of Interpreting Customary International Law #147

1

1

2

x

(5) General Principle of Interpreting International Decisions #148 #149

4 0

33 1

37 1

x x

(6) General Principles Delineating International Law from Domestic Law #150 #151 #152

2 2 1

1 7 0

3 9 1

x x x

x

(7) Other Interpretative General Principles #153 #154 #155 #156

0 3 2 0

2 2 0 1

2 5 2 1

x x x x

x

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B

Further Reading1

Listed by language, with unofficial translations 1 Many thanks to Nicolas Angelet, Agata Kleczkowska, Asaf Lubin, Benjamin Samson, Vasilka Sancin and Jakub Wojsyk for their help in collecting foreign language material on the topic of

650

Literature

English

Abi-Saab, G., ‘The Newly Independent States and the Rules of International Law: An Outline’, Howard L.J. 8, 95 (1962). Akehurst, M., ‘Note: The Hierarchy of the Sources of International Law’, 47 Brit. Y Int’l L. 273 (1977). Alexy, R., ‘Formal principles: Some replies to critics’, icon 12, 511 (2014). Alpa, G., ‘General Principles of Law’, 1 Ann. Surv. Int'l & Comp. L. 1 (1994). Anghel, E., ‘General Principles of Law’, Scientia Int’l J. 120 (2016). d’Argent, P., ‘Sources and the Legality and Validity of International Law: What makes Law “International”?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). d’Aspremont, J., Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2011). d’Aspremont, J., ‘The Permanent Court of International Justice and Domestic Courts: A Variation in Roles’, in Tams and M Fitzmaurice (eds), Legacies of the Permanent Court of International Justice (Leiden: Brill, 2013). d’Aspremont, J., ‘Sources in Legal-Formalist Theories: The Poor Vehicle of Legal Forms’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). d’Aspremont, J., ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation’, 27 Eur. J. Int’l L. 4, 1027 (2017). Baxi, U., ‘Sources in the Anti-Formalist Tradition: “That Monster Custom, Who Doth All Sense Doth Eat”’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Bentham, J., ‘Principles of International Law’, in Bowring (ed.), The Works of Jeremy Bentham (1843). Besson, S., ‘Theorizing the Sources of International Law’, in Besson and Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010). Besson, S., ‘Sources of International Human Rights Law: How General is General International Law?’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Bjorge, E., ‘Public Law Sources and Analogies of Public International Law’, 49 Victoria University of Wellington L. Rev. 533 (2018). Bogdan, M., ‘General Principles of Law and the Problem of Lacunae in the Law of ­Nations’, 46 Nordic J. Int’l L. (1977).

this book. Several r­eferences to scholarly work on general principles in English and other languages have also been sourced from the excellent literature list available in Kohen and Schramm, ‘General Principles of Law’, Oxford Bibliographies (2013).

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Tomuschat, C., ‘General Principles of Law’, in Obligations arising for states without or against their will, offprint from the Recueil des Cours de l'Académie de La Haye en ligne, Volume 241 (Leiden: Brill/Nijhoff, 1993). Tomuschat, C., ‘General International Law: A New Source of International Law?’, in Pisillo Mazzeschi and De Sena (eds), Global Justice, Human Rights, and the Modernization of International Law (Cham: Springer, 2018). Treves, T., ‘Environmental Impact Assessment and the Precautionary Approach: Why Are International Courts and Tribunals Reluctant to Consider Them as General Principles of Law?’, in Andenæs, M Fitzmaurice, Tanzi and Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/Nijhoff, 2019). Tunkin, G. I., ‘General Theory of Sources of International Law’, 19 Indian J. Int’l L. 4, 474 (1979). Vec, M., ‘Sources of International Law in the Nineteenth-Century European Tradition: The Myth of Positivism’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Venzke, I., ‘Sources in Interpretation Theories: The International Law-Making Process’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Villalpando, S., ‘On the International Court of Justice and the Determination of Rules of Law’, 26 Leiden J. Int’l L. 243 (2013). Weihofen, H., ‘General Principles of Criminal Law by Jerome Hall’, 33 Virginia L. Rev. 3, 383 (1947). de Wet, E., ‘Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the un Charter Within the Sources of International Law’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Wolfke, K., ‘Some Reflections on Kinds of Rules and International Law-Making by ­Practice’, in Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1997). Wouters, J., ‘Conclusions: The Role of General Principles in a Multi-layered Legal Setting’, in Andenæs, M Fitzmaurice, Tanzi and Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/Nijhoff, 2019). Wuerth, I. B., ‘Sources of International Law in Domestic Law: Domestic Constitutional Structure and the Sources of International Law’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). Yusuf, A. A., ‘Concluding Remarks’, in Andenæs, M Fitzmaurice, Tanzi and Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/­ Nijhoff, 2019).

Literature

French

663

Abi Saab, G., ‘Les sources du droit international: essei de déconstruction’, in: Liber Amicorum Eduardo Jiménez de Aréchaga (1994). de Cara, J. Y., ‘Les Principes Généraux de Droit au sens de l’Article 38 du Statut de la Cour Internationale de Justice’ [General principles of law within the meaning of Article 38 of the Statute of the International Court of Justice], Les Dénominateurs Communs entre les Principes Généraux du Droit Musulman et des Droits des Pays Arabes et les Principes Généraux du Droit Français: Colloque de Beyrouth (2001, ed. Centre d’études des droits du monde arabe, Université Saint-Joseph) (Brussels: Bruylant, 2005). Castberg, F., ‘La Méthodologie du Droit International Public’ [The methodology of public international law], Recueil des Cours de l'Académie de La Haye en ligne Tome 43 (Leiden: Brill/Nijhoff, 1933), at 309–384. Durand, P., ‘La contribution de l’activité normative des organisations internationales au développement des sources du droit international’ [The contribution of the normative activity of international organisations to the development of sources of international law], University of Paris ii Pantheon-Assas, Thèse pour le doctorat (forthcoming). Gérard, P., ‘Droit, Egalité et Idéologie: Contribution à l’Etude Critique des Principes Généraux de Droit’ [Law, Equality and Ideology: Contribution to the critical study of the general principles of law] (Facultés Universitaires Saint-Louis, 1981). Kohen, M. G., ‘Les Principes Généraux du Droit International de l’Eau à la lumière de la Jurisprudence Récente de la Cour Internationale de Justice’ [General principles of international water law in light of recent jurisprudence of the International Court of Justice], L’eau en droit international: Colloque d’Orléans (Pédone, 2011), at 91–108. Kolb, R., ‘La bonne foi en droit international public: Contribution à l'étude des principes geneaux de droit’ [Good faith in public international law: Contribution to the study of the principles of law], Thèse pour le doctorat (1999). Oraison, A., ‘La Cour Internationale de Justice, l’Article 38 de son Statut et les Principes Généraux: La stratégie sectorielle de neutralité mise en oeuvre par l’organe judiciaire principal des Nations Unies’ dans le domaine de la formulation des principes généraux’ [International Court of Justice, Article 38 of its Statute and General Principles: The sectoral strategy of neutrality implemented by the principal judicial ­organ of the United Nations in the field of the formulation of the general principles], Revue de Droit International, de Sciences Diplomatiques et Politiques 80 (2000), at 103– 136. Pellet, A., ‘Recherche Sur Les Principles Generaux de Droit En Droit International’ [Research on the General Principles of Law in International Law], Thèse pour le doctorat (1974).

664

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‘PGD: de et pas du’ [General principles of law], in: Dictionnaire des idées reçues en droit international (Paris: Pédone, 2017), at 433–438. Rousseau, C., ‘Principes Généraux du Droit International Public: Tome i’ [General principles of public international law, Volume i] (Paris: Pédone, 1944). Samson, B., ‘Les clauses parapluies dans le droit international des investissements étrangers’ [Umbrella clauses in international investment law], Paris Nanterre, Thèse pour le doctorat (forthcoming). Virally, M., ‘Le Rôle des “Principes” dans le Développement du Droit International’ [The role of ‘principles’ in the development of international law], Recueil d‘Etudes de Droit International en hommage à Paul Guggenheim (Guggenheim ed., Institut universitaire de hautes études internationales, 1968), at 531–554. Vitanyi, B., ‘Les Positions Doctrinales concernant le Sens de la Notion de “Principes Généraux de Droit Reconnus par les Nations Civilisées” [Doctrinal positions concerning the meaning of the notion ‘general principles of law recognised by civilised nations’], Revue Générale de Droit International Public lxxxvi (1936), at 48–116. Verdross, A., ‘Les Principes Généraux du Droit dans la Jurisprudence Internationale’ [General principles of law in international jurisprudence], Recueil des Cours de l'Académie de La Haye en ligne Tome 52 (1935), at 195–225.

German

von Arnauld, A., ‘Rechtsangleichung durch allgemeine Rechtsgrundsätze? Europäisches Gemeinschaftsrecht und Völkerrecht im Vergleich’ [Approximation of laws by general principles? European Community and international law compared], in: Rechtsangleichung: Grundlagen, Methoden und Inhalte (Riesenhuber, Takayama eds, Springer, 2006), at 247–262. Weiss, W., ‘Allgemeine Rechtsgrundsätze des Völkerrechts’; [General legal principles of international law], Archiv des Völkerrechts 39 (2001), at 383–431.

Hebrew

Rosenne, S., ‫[ בנבכי המשפט הבינלאומי‬In the depths of international law], The Perplexities of Modern International Law: Revised and Updated Hebrew-Israeli Edition (2012), at 41–44. Shany, Y., and Ben Naftali, V., ‫[ המשפט הבינלאומי בין מלחמה לשלום‬International Law Between War and Peace] (2006), at 399–404.

Italian

Battaglini, G., ‘Il Riconoscimento Internazionale dei Principi Generali del Diritto’ [The international recognition of general principles of law], Il diritto internationale al tempo della sua codificazione (Milan: Dott. A. Giuffrè Editore, 1987), at 97–140.

Literature

665

Benvenuti, P., ‘Principi generali del diritto, giurisdizioni internazionali e mutazioni sociali nella vita di relazione internazionale’ [General principles of law, international jurisdiction and social mutations in the life of international relations], Studi di Diritto Internazionale in onore di Gaetano Arangio-Ruiz, Volume 1. (Gaetano ArangioRuiz ed., Editoriale Scientifica, 2004), at 295–312.

Polish

Bierzanek, R., ‘Studia nad społecznością międzynarodową. Źródła prawa międ­ zynarodowego’ [Studies on the international community. Sources of international law], University of Maria Curie-Skłodowska (Lublin, 1991), at 44 et seq. Bierzanek, R., and Symonides, J., ‘Prawo międzynarodowe publiczne’ [Public international law], wp pwn (Warszawa, 2003), at 115. Bierzanek, R., Jakubowski, J., and Symonides, J., ‘Prawo międzynarodowe i stosunki międzynarodowe’ [International law and international relations], Prawo międzynarodowe publiczne (Warszawa, 1980), at 89. Czapliński, W., and Wyrozumska, A., ‘Prawo międzynarodowe publiczne. Zagadnienia systemowe’ [Public international law. Systemic issues] (Warszawa, 2004), at 1 and 79 et seq. Gilas, J., ‘Zasady ogólne prawa w pracach Międzynarodowego Trybunału Spraw­ iedliwości’ [General principles of law in the work of the International Court of Justice], Zeszyty Naukowe umk vi. Jasudowicz, T., ‘O zasach ogólnych prawa uznanych przez narody cywilizowane – garść refleksij’ [On the general principles of law recognised by civilised nations – a handful of reflections], in: Pokój i sprawiedliwość przez prawo międzynarodowe: zbiór studiów z okazji 60 rocznicy urodzin profesora Janusz Gilasa (Cezary Mik (ed.), Toruń, 1997), at 141 et seq. Kalisz, A., ‘Orzekanie z udziałem zasad ogólnych jako droga do zapewnienia aksjologicznej skuteczności stosowania prawa unijnego – uwagi teoretycznoprawne na tle wyroku Kücükdeveci’ [Adjudication involving general principles as a way to ensure the axiological effectiveness of the application of eu law – theoretical remarks on the background of the Kücükdeveci judgment], in: Zapewnienie efektywności orzeczeń sądów międzynarodowych w polskim porządku prawnym (Ensuring the efficiency of international court decisions in the Polish legal order) (Wróbel (ed.), 2011), at 465–476. Klafkowski, A., ‘Prawo międzynarodowe publiczne’ [Public international law], Państwowe Wydawnictwa Naukowe (2nd ed., Warszawa, 1966), at 35. Maliszewska-Nienartowicz, J., ‘Zasady ogólne prawa jako źródło europejskiego prawa wspólnotowego’ [General principles of law as a source of European Community law], Państwo i Prawo z. 4/2005, s. 23 et seq.

666

Literature

Peretiatkowicz, A., ‘Ogólne zasady prawa jako źródło prawa międzynarodowego a tendencje kosmopolityczne’ [General principles of law as a source of international law and cosmopolitan tendencies], in: Prace Komisji Nauk Społecznych / Poznańskie ­Towarzystwo Przyjaciół Nauk, Wydział Historii i Nauk Społecznych (Works of the Commission of Social Sciences / Poznań Society of Friends of Sciences) (Poznań, 1956). Sozański, J., ‘Ogólne zasady prawa a wartości Unii Europejskiej (po traktacie lizbońskim) – studium porównawcze’ [General principles of law and the values of the European Union (after the Treaty of Lisbon) – a comparative study] (Toruń, 2012). Wróblewski, J., ‘Prawo obowiązujące a „ogólne zasady prawa”’ [Applicable law and “general principles of law”], Zeszyty Naukowe Uniwersytetu Łódzkiego. Nauki Humanistyczno-Społeczne (Scientific Papers of the University of Lodz. Humanities and Social Sciences), Series I, No. 42, at 18.

Slovene

Olaj, A., ‘Neposredna uporaba splošno veljavnih načel mednarodnega prava v pravnem redu Republike Slovenije’ [Direct use of the generally applicable principles of international law in Slovene legal order], International Public Administration Review, Vol. xi, No. 3–4/2013, at 123–140. Sancin, V., ‘Vloga mednarodnega prava v slovenskem sodstvu’ [The role of international law in the Slovenian judiciary], 38 Podjetje in delo 6/7 (GV Založba, 2012), at 1213–1223. Sancin, V., ‘Mednarodno pravo v hierarhiji pravnih virov eu in njenih članic’ [International law in the hierarchy of the legal sources of eu and its members], Scientia iustitia 14 (Uradni list Republike Slovenije, 2009). Škrk, M., ‘Pojem virov v mednarodnem pravu’ [The notion of sources in international law], 45 Zbornik znanstvenih razprav (1985), at 147–161.

Spanish

Barberis, J. A., ‘Los Principios Generales de Derecho como Fuente del Derecho Internacional’ [General principles of law as a source of international law], Revista del Instituto Interamericano de Derechos Humanos 14 (1991), at 11–41. Peña Neira, S., Fuentes del Estado de Derecho Internacional: Acerca de la ormación de las normas jurídicas internacionales con respeto a las garantías de las personas [Sources of international law: The formation of international legal norms with respect to peoples’ rights] (Ediciones Olejnik, 2016).

Author Index Abi-Saab, Rosemary 143n56, 144n62, 150, 151n103, 158n141 Akehurst, Michael 41, 60n56, 70n109, 76, 81, 114, 120n75, 124n93, 126n100, 143, 146, 147, 187, 188n280, 197n16, 200, 201n46 Andenæs, Mads 2n6, 62n71, 87n216, 99n303, 126, 200

Fitzmaurice, Gerald 2, 34n17, 50n113, 59n41, 62n67, 64n86, 69, 70, 90n238, 91, 92n249, 130n131, 136–137, 159, 166, 169, 306 Fitzmaurice, Malgosia 10n3, 144, 181n234, 202, 212n103, 341n4 Francioni, Francesco 189n288

Bassiouni, M. Cherif 23n94, 24n104, 52n121, 59n40, 60n50, 61n57, 62n73, 62n78, 70, 73n129, 76, 77n154, 92n253, 93, 95, 98, 105n3, 108n15, 110, 120n71, 129n116, 130n121, 133, 136n24, 139n39, 145, 146, 148, 157n133, 158, 171n190, 182, 183, 202, 209n82, 218n121, 341, 342n2, 343n6, 344 Berry, David S. 26, 47, 58n30, 69, 92n252, 139n35, 167, 174, 187, 197n17, 200n38, 342n4 Besson, Samantha 2n7, 10n3, 20n71, 27n116, 28n120, 34, 35n25, 55n6, 56n13, 117n54, 130n125, 135n18, 198n23, 211n94, 344n15 Brett, Annabel S. 28 Brierly, James L. 52n124, 59n40, 61n57, 195n9, 212n98 Brown Scott, James 9n1, 13, 16n44, 20n69

Gaja, Giorgio 16n48, 17n52, 22n83, 24, 25n107, 26n110, 50n113, 52, 53n125, 57n27, 69n107, 76, 86, 89, 98, 113n34, 117, 120n72, 123, 127n103, 135, 136, 151, 168n170 García-Salmones Rovira, Mónica 32n8 Geraets, Dylan 58n32, 59n41, 61n59, 62n68, 70n111, 98, 110 Greenwood, Christopher 55n7, 60n56, 87, 133, 166, 181

Cheng, Bin 1, 25n108, 26n109, 51n117, 61, 62n69, 69, 94n266, 128, 129, 140n42, 156, 195, 203, 212n98, 344 Coppens, Dominic 58n32, 59n41, 61n59, 62n68, 70n111, 98, 110 d’Aspremont, Jean 2n7, 10n3, 20n71, 26, 27, 28n120, 32n8, 34, 35n25, 47n89, 52n121, 55n6, 56, 57, 58n30, 63, 70, 71, 110, 117n54, 135n18, 138n34, 195, 196n10, 197, 198n23, 203n59, 209, 211n94, 212n98, 342n5, 345n15 de Vattel, Emer 27, 28, 56 de Wet, Erica 23, 53n128, 58n39, 61, 77, 117 Elias, Olufemi 17n53, 47, 57, 77n157, 88, 90n234, 99, 118, 120n77, 127, 128n112, 130n127, 133n7, 144n63, 145, 147, 181, 196n14, 197n16

Haggenmacher, Peter 55n6, 56 Herczegh, Géza 17n53, 19, 55–57, 58n33, 59n48, 60n52, 70, 74n139, 76n150, 83, 88n227, 89, 90n239, 95n269, 116, 118, 120n74, 129, 130n120, 136, 139n35, 142, 145, 146n81, 150n97, 156n130, 157n133, 166, 169, 174, 181, 183, 195, 196n15, 218n121 Houben, Piet-Hein 24n98 Hudson, Manley O. 10n2, 21n82, 24n101, 52, 59n44, 77n160, 92n253, 114, 119, 218n122 Jennings, Robert 33n15, 34n19, 73n129, 95n269, 130n128, 179n221, 198n23 Kaufman Hevener, Natalie 52, 57, 94, 108n15, 120n76, 128n112, 129, 130, 137, 197n16 Kleinlein, Thomas 43, 55n5, 57, 58n29, 60, 61n58, 69, 70n109, 71n122, 76, 77n160, 94, 124, 126, 127, 129n116, 130n126, 135n19, 136n25, 143n57, 144, 145, 146n78, 149n93, 198n22, 199n34, 202, 206 Kohen, Marcelo 54n1, 130, 157n134, 198n24, 341n3 Kotuby, Charles T. 61 Kotzur, Markus 189n288

668 Kozłowski, Artur 88, 98n294, 129n115, 130n122, 200n41, 218n121 Kunz, Josef L. 59n41, 77, 82 Kwiecień, Roman 64n83, 98, 156n131, 218n121 Lauterpacht, Hersch 62n66, 90n237, 91, 92, 117, 118, 168, 194, 195, 196n15, 200n38 Leiss, Johann Ruben 39n60, 62n71, 87n216, 99n303, 126, 200 Lepard, Brian D. 66, 70n109, 92n251, 129n113, 130, 131, 145, 146n81, 150, 151, 156n129, 217n120 Lesaffer, Randall 27n116, 55, 135n18 Lim, Chin Leng 17n53, 47, 57, 77n157, 88, 90n234, 99, 118, 120n77, 127, 128n112, 130n127, 133n7, 144n63, 145, 147, 181, 196n14, 197n16 Lloyd-Jones, David 26, 69, 95, 129n115 McCormack, Timothy L. H. 67 Mendelson, Maurice H. 1n3, 10n7, 33n15, 34n24, 38, 39, 58n36, 59, 60n49, 61n60, 73n129, 88, 130n128, 135n19, 148, 151, 158, 171, 172n191, 178, 179n221, 198n23 Mosher, Steven A. 52, 57, 94, 108n15, 120n76, 128n112, 129, 130, 137, 197n16 Oppenheim, Lassa 37, 53n127, 56, 90n237, 194, 195, 196n15, 347 Paparinskis, Martins 129n117, 134n14, 138n34, 158n139, 182 Parry, Clive 23n91, 24n105, 53n126, 55, 56n11, 69n107, 70, 117, 118, 120n75, 129, 136n21, 181, 341n3 Pellet, Alain 1n3, 1n4, 15n38, 15n41, 16, 17n53, 19n67, 20n70, 20n73, 22, 24n104, 26n109, 26n110, 27n113, 31n3, 32n5, 34n17, 36n36, 37n40, 38–40, 42n71, 43n73, 50n112, 70, 73n129, 74, 77n156, 83n195, 84n198, 84n200, 86, 87n215, 89, 119, 130, 133n4, 133n8, 133n10, 134n13, 134n15, 136, 144n63, 148, 149, 152n109, 156, 181, 184, 185, 186n257, 188, 198n22, 198n23, 199, 200n41, 201n47, 212n97, 341n2, 342n6, 344n11 Raimondo, Fabian O. 1, 34n23, 40, 42, 57n27, 59n42, 195, 200n38

Author Index Redgwell, Catherine 1n3, 33n16, 39n57, 40, 58n31, 59n42, 61n65, 67, 68, 108n15, 117n56, 118, 127, 129n116, 130n127, 137, 201n47, 217n120, 341n2 Reinisch, August 211n94 Rosenne, Shabtai 16n47 Saganek, Przemysław 65n88, 127n105, 129, 196n12 Schachter, Oscar 128, 130n131, 187, 188n275 Schlesinger, Rudolf B. 54n2, 95, 102, 108n15, 118, 129n115, 196n15, 197n21 Schramm, Bérénice K. 54n1, 130, 157n134, 198n24, 341n3 Schwarzenberger, Georg 22, 57n26, 58n38, 59n46, 59n47, 60, 62, 70, 92n252, 93n258, 136, 195, 196n13 Skomerska-Muchowska, Izabela 32n6, 34n17, 51n115, 52n121, 59n46, 64n83, 64n86, 64n87, 82n187, 108n14, 108n15, 135n19, 139n34, 145, 150, 156, 158, 168n172, 169, 172, 201n49, 218n121 Sobota, Luke 61 Spiermann, Ole 10n3, 10n4, 10n5, 10n8, 11n12, 12, 13, 14n31, 14n32, 14n36, 15n37, 15n38, 15n39, 15n40, 15n42, 16n45, 18n55, 19, 20n71, 20n75, 21n76, 22n84, 27n117, 29n128, 30n131, 39n58, 56, 117, 198n23, 344n15 Sykes, Katie 23, 24n98, 44, 61, 73n130, 98, 130n121, 182n240, 182n243, 182n244, 201n47 Thirlway, Hugh 18n56, 23n96, 32n4, 34n19, 35n32, 37n41, 39n59, 49, 51n114, 58n34, 58n38, 59n40, 59n42, 59n43, 59n45, 63, 69n107, 70n112, 83n195, 84n199, 86n212, 108n15, 133, 135n18, 136, 137, 141n49, 146, 148, 155, 167, 171n189, 178n218, 181, 183, 185n256, 186n263, 188, 196n10, 197n16, 198n23, 199, 209n82, 212n99, 218n121 Tunkin, Grigory 16, 17n52, 90n234, 120, 150n97, 157n133 Voigt, Christina 135n20 Watts, Arthur 95n269 Weatherall, Thomas 182 Wheaton, Henry 22n89, 23, 27n118, 28

Author Index White, Margaret 18n62, 129n116, 185n256, 188, 189 Wouters, Jan 2n6, 58n32, 59n41, 61n59, 62n68, 62n75, 70n111, 98, 110, 129n117, 134n14 Yotova, Rumiana 10n7, 11n13, 13n28, 14n35, 14n36, 18n62, 21n77, 21n80, 22n83, 23n94, 34n18, 36n36, 40, 41n67, 49n102,

669 58n36, 59n44, 60n50, 61, 70n108, 70n115, 71, 73, 74n135, 77n159, 90n235, 94, 99, 108n14, 111n33, 113n34, 117n56, 120n70, 124n94, 126n100, 127n104, 129n116, 130n121, 130n125, 136n21, 139n37, 142n51, 143n57, 145n70, 145n73, 148, 158n139, 162n154, 195n5, 195n6, 195n7, 195n9, 196n15, 197n17, 199n33, 200n36, 200n40, 200n41, 202n54, 212n98, 213

Case Index Access to, or Anchorage in, the port of Danzig, of Polish War Vessels advisory opinion 96n280, 238n17 Accordance with international law of the unilateral declaration of independence in respect of Kosovo advisory opinion 42n72, 117n53, 211n91, 312n165, 379, 390, 441, 602 Aegean Sea Continental Shelf case 82n188, 175, 176n207, 178, 186, 288, 300n106, 367, 414, 468, 491, 528, 593–594, 604 Ahmadou Sadio Diallo case 86, 90, 114, 115n39, 116, 186, 187n264, 285, 303, 303n124, 304, 326, 327, 334–336, 340n60, 398, 429, 430, 436–437, 533, 539, 550, 552, 557, 563, 565, 566 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea case 298n96, 320n223, 581–582 Anglo-Iranian Oil Co. case 97, 109, 116, 160, 296, 309, 311, 316, 334, 494, 507, 514, 525, 530, 547, 584, 597, 598, 602–604 Appeal from a Judgment of the Hungaro/ Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University) case 50n106, 86n207, 214n107, 236n11, 237–238n16, 239n24, 248n85, 249n91, 401, 405, 421, 531 Appeal Relating to the Jurisdiction of the icao Council case 33n13, 301, 490, 517, 534 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal advisory opinion 96n277, 108n12, 140n43, 176n211, 201n47, 211n92, 219n132, 277n8, 422, 514, 532, 536, 541, 569 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal advisory opinion 52, 123n88, 176n210, 211n92, 450, 515, 567 Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal advisory opinion 48n99, 220n133, 543, 561

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute case 49n103, 209n83, 409–410 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro) case 24n103, 32n7, 35n29, 36n35, 66n95, 67n98, 80n179, 116n46, 174n200, 211n96, 296n83, 302n117, 304n127, 395, 397, 402, 403, 427, 436, 483, 485, 501, 504, 508, 510, 513, 520, 522, 563, 577, 616, 628, 629 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.) case 94–95n268, 153n117, 162n152, 208n80, 295n74, 303n123, 304n128, 321n232, 507, 511, 566, 578, 621 Application of the Interim Accord of 13 September 1995 case 42n72, 303, 305n138, 322n239, 372, 513, 565–566 Application of the International Convention on the Elimination of All Forms of Racial Discrimination case 296n80, 308n146, 309n149, 315n184, 505, 588, 595 Arbitral Award of 31 July 1989 case 36n38, 159n145, 162, 201n45, 306n140, 311, 491, 586, 599 Armed Activities on the Territory of the Congo case 74, 85, 150, 330n14, 339n59, 371, 379, 387, 389, 393, 396, 427, 478, 549–550, 557, 616 Armed Activities on the Territory of the Congo (New Application: 2002) case 85n203, 142n51, 164n159, 294n68, 483, 504, 510, 523, 629 Arrest Warrant of 11 April 2000 case 73n131, 74n135, 215, 297n86, 297n88, 323n244, 425, 435, 510, 536–537, 555–556 Avena and Other Mexican Nationals case 198, 302, 302n117, 321, 333, 549, 556, 563, 577

Case Index Barcelona Traction, Light and Power Company, Limited (New Application: 1962) case 37n47, 82n187, 85n202, 114n37, 275n2, 284n14, 293n62, 332n24, 334n36, 338n56, 495–496, 548, 559, 609 Border and Transborder Armed Actions case 33n10, 74n135, 215, 317, 324n243, 485, 574–575, 611 Brazilian Loans case 86, 243, 266, 273, 382, 591 Certain Activities carried out by Nicaragua in the Border Area case 204, 205n64, 219n126, 303n125, 320n224, 397, 431, 539, 567, 581 Certain German Interests in Polish Upper Silesia (Merits) case 84, 124n94, 141n46, 157, 168, 177n212, 239n24, 249n88, 252, 254, 255n125, 289n44, 401, 405, 448, 451, 571 Certain Norwegian Loans advisory opinion 176n207, 207n75, 316n193, 525, 602–603 Certain Questions of Mutual Assistance in Criminal Matters case 38n52, 51n114, 159n145, 169n182, 177, 213, 296, 317n201, 318, 318n210, 428, 505, 508, 530–531, 538, 578, 629, 630 Competence of the General Assembly for the Admission of a State to the United Nations advisory opinion 109n16, 160n149, 180n228, 308n146, 310n157, 587, 596 Competence of the ilo to Regulate Incidentally the Personal Work of the Employer advisory opinion 90n239, 209n84, 240n34, 313n176, 591 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) advisory opinion 176n209, 218n125, 319n212, 572 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City advisory opinion 239n31, 240n35, 240–241n36 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime

671 Consultative Organization advisory opinion 160n149, 285n21, 311n161, 540, 597 Construction of a Road in Costa Rica along the San Juan River case 88n222, 150n98, 320n224, 322n238, 379, 391, 413, 458, 533, 580 Continental Shelf (Libya/Malta) case 50n111, 72n124, 74, 75, 189, 293n66, 298, 380, 384, 392, 453, 463, 465, 466, 468, 473, 482, 497, 509, 528 Continental Shelf (Tunis./Libya) case 36n37, 38n55, 46, 52, 72n124, 72n127, 75, 132, 186n262, 187n266, 189n290, 277n7, 363, 461, 467, 468, 537 Corfu Channel case 37, 68n102, 93, 155, 177, 213, 275, 284, 313, 390, 391, 394, 421, 427, 430, 442, 459, 472, 476, 592, 595, 608 Customs Regime between Germany and Austria advisory opinion 242n43, 377 Delimitation of the Maritime Boundary in the Gulf of Maine Area case 39n62, 48, 64n85, 154n119, 182n238, 184n251, 187n267, 213n105, 318n205, 319, 370, 463, 472, 518, 574 Denunciation of the Treaty of 2 November 1865 between China and Belgium case 255n124 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights advisory opinion 115n40, 396, 534 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.) case 305n134, 307, 322n237, 415, 429, 458, 564, 578–579 Electricity Company of Sofia and Bulgaria case 95, 127n104, 140n41, 237, 239n22, 262, 263, 523, 525 Elettronica Sicula S.p.A. (elsi) case 84n199, 85n204, 305n133, 333n33, 519, 554 Exchange of Greek and Turkish Population advisory opinion 115, 215n116, 271, 631 Factory at Chorzów case 83, 87n218, 106, 115, 125, 126, 127n103, 142n52, 155, 177n212,

672 235n7, 236, 237, 239n26, 245–248, 254n119, 256, 257, 259, 269, 293–294n66, 323n242, 336, 397, 400, 417, 418, 420, 422, 425, 434, 436, 447, 448, 493, 544, 571, 572, 607 Fisheries (U.K. v. Nor.) case 75n142, 460 Fisheries Jurisdiction (Germ. v. Ice.) case 369 Fisheries Jurisdiction (Spain v. Can.) case 35n30, 37n45, 38n52, 48n100, 83n195, 294n69, 315n187, 315n189, 316n198, 603 Fisheries Jurisdiction (U.K. v. Ice.) case 32n4, 32n7, 35n26, 36n37, 37n42, 81n182, 82n188, 83n193, 91n247, 97n282, 109n16, 122n82, 139n39, 150n96, 180n228, 210n89, 219n131, 285n20, 287n27, 299n102, 308n147, 366, 368–369, 392, 471, 484, 490, 542, 587 Free Zones of Upper Savoy and the District of Gex case 87, 91, 238n18, 239n29, 242, 249n94, 313n177, 366, 377, 591, 628, 632 Frontier Dispute (Benin/Niger) case 50n108, 84n201, 86n214, 116n46, 290, 410, 483, 560 Frontier Dispute (Burk. Faso/Mali) case 38n49, 47n90, 48n99, 84n201, 173n196, 186n262, 199n28, 289n36, 290n46, 298n94, 402, 405, 440, 509, 529, 561, 583 Gabčíkovo-Nagymaros Project case 23n93, 35n28, 151, 152, 154, 201n47, 213n105, 214n107, 288, 318n205, 320n220, 321n228, 363, 365, 367, 371, 380, 395, 400, 423, 436, 458, 481, 575, 583 Greco-Bulgarian “Communities” advisory opinion 270, 626, 627 Immunities and Criminal Proceedings case 141n49, 155, 160n150, 219n129, 486 Interhandel case 97, 333, 527, 530, 553, 554 International Status of South West Africa advisory opinion 115, 122n85, 285n22, 384, 442, 443 Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne advisory

Case Index opinion 173n199, 202n51, 216n118, 237n14, 251n104, 261n159, 265n171, 445, 446, 521, 590 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) case 87n218, 269n198, 323n242, 572, 607 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania advisory opinion 97n287, 109n20, 179n225, 257n140, 295n75, 314n181, 494, 496, 498 Interpretation of the Agreement of 25 March 1951 between the who and Egypt advisory opinion 72n127, 73n132, 83n194, 176n209, 188, 211n95, 214n107, 319n216, 321n229, 369, 573 Interpretation of the Convention of 1919 concerning Employment of Women during the Night advisory opinion 267, 273n221, 585, 589 Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article iv) advisory opinion 73n129, 98n289, 256n127, 488 Jurisdictional Immunities of the State case 173, 322n237, 379, 381, 398, 399, 430, 437, 513, 579, 634 Jurisdiction of the Courts of Danzig advisory opinion 109, 173, 235, 240n36, 265, 362, 590 Jurisdiction of the European Commission of the Danube advisory opinion 97, 100, 106n4, 121n78, 134n12, 180, 212n101, 239n23, 239n28, 244, 250n96, 250n98, 253, 444, 451, 455, 475, 482 Kasikili/Sedudu Island case 72, 152, 159n145, 164n160, 308n148, 312n165, 453, 468, 588, 601 Land and Maritime Boundary between Cameroon and Nigeria case 38n53, 39n62, 187n269, 189n288, 208, 214, 215, 305, 315, 317n200, 318n206, 320n227, 323, 324n246, 325n248, 371, 395, 409, 465, 474, 501, 503, 517, 520, 530, 532, 562, 576, 584, 603, 612, 613, 631

Case Index Land, Island and Maritime Frontier Dispute case 36n34, 74n137, 289, 293, 297n88, 306, 311, 402, 407, 409, 459, 492, 499, 500, 520, 536, 542, 599, 611, 612, 626, 628 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) advisory opinion 44n77, 172n194, 175n205, 251n103, 321n229, 364, 368, 384, 439, 443, 446, 484, 573, 593 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion 23n90, 44n77, 64–65n88, 66n96, 72n126, 73n134, 74n138, 82n188, 93n255, 94n262, 144n61, 154n124, 245n65, 295n76, 321n230, 384, 389, 396, 426, 435, 441–443, 503, 577 Legality of the Threat or Use of Nuclear Weapons advisory opinion 39n63, 64, 82n187, 93n255, 144n61, 151, 162, 318n209, 370, 442, 477, 479, 480, 575 “Lotus” case 74, 87n217, 95, 96, 110n21, 116, 125n96, 188, 201, 226n134, 237, 240, 244, 382, 454, 542, 606 Maritime Delamination in the Caribbean Sea and the Pacific Ocean case 625 Maritime Delimitation and Territorial Questions between Qatar and Bahrain case 31–32n3, 37n45, 66, 72n124, 162n155, 213n105, 308n148, 312n165, 409, 460, 469, 474, 500, 570, 588, 600, 613 Maritime Delimitation in the Black Sea case 303n121, 465, 469, 470, 564 Maritime Delimitation in the Indian Ocean case 163, 374 Mavrommatis Jerusalem Concessions case 121, 157, 239n25, 405, 582 Mavrommatis Palestine Concessions case 80, 81, 84, 107, 124n91, 150n100, 199n35, 200, 201n44, 234n1, 256n132, 258, 259n145, 292n56, 326–329, 331, 338, 404, 493, 499, 522, 535, 543, 582 Military and Paramilitary Activities in and against Nicaragua case 32n8, 33n14, 35n26, 36n39, 37n41, 44n80, 47n94,

673 48n97, 65n89, 68n101, 73n133, 85n206, 86n213, 94n267, 134n11, 137n31, 143n56, 149n95, 152n115, 158n141, 159n143, 164n161, 165n162, 167n167, 169n177, 177n213, 179n222, 198n22, 201n44, 209n85, 214n108, 292n60, 295n74, 301n107, 302n114, 305n135, 318n205, 319, 320n226, 323n245, 377, 380, 385, 388, 394, 422, 457, 459, 472, 476, 480, 484, 491, 498, 506, 514, 516, 519, 523, 528, 535, 538, 542, 560, 574, 583, 611 Minority Schools in Albania advisory opinion 111n32, 140n40, 207, 235, 239n30, 253, 452, 632 Monastery of Saint-Naoum advisory opinion 49, 96 Monetary Gold Removed from Rome in 1943 case 44n81, 121n81, 138n38, 296n71, 495, 501, 512, 513 Nationality Decrees issued in Tunis and Morocco on November 8, 1921 advisory opinion 178n219, 218n123, 249n92, 366, 484 Northern Cameroons case 38n54, 186n259, 275n3, 523, 541, 609 North Sea Continental Shelf case 42n69, 46, 52, 91, 95, 110n21, 152, 168, 169, 187, 189n288, 198, 204, 207n72, 216n119, 277, 319, 384, 385, 455, 460, 461, 466–469, 473, 518, 519, 573, 606 Nottebohm case 81, 107, 116, 122, 123, 125, 126, 142, 151, 202n50, 208, 283, 284, 295, 295n74, 299, 330, 331n18, 488, 494, 506, 507, 509, 512, 547, 558 Nuclear Tests case 35, 36n37, 37n43, 48n100, 83n195, 177, 181n234, 188, 300n105, 317, 318n206, 319, 319n218, 490, 517, 573, 582, 632 Obligation to Negotiate Access to the Pacific Ocean case 217, 219n127, 276, 373, 374, 521 Oil Platforms case 36n34, 296n80, 305n138, 312n166, 389, 416, 426, 457, 481, 503, 562, 601 Oscar Chinn case 76, 140n41, 170, 207, 233, 238, 239n27, 243, 244, 248, 252–254, 260, 415, 416, 421, 449, 452, 456, 545

674 Panevezys-Saldutiskis Railway case 259, 260, 283n10, 327n5, 330–332, 545, 553, 557 Phosphates in Morocco case 94, 169n183, 246, 254, 262, 393, 449, 524, 568 Polish Postal Service in Danzig advisory opinion 51n116, 91, 160n148, 180n229, 235, 268, 269n201, 272, 310, 596, 598, 607, 633 Prince von Pless Administration case 97, 150n100, 238, 260, 332, 552 Pulp Mills on the River Uruguay case 100n304, 212n98, 302, 317n203, 319, 371, 390, 429, 444, 564, 579 Question on Jaworzina advisory opinion 271, 272, 272n220, 585, 633 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie case 48n98, 215, 323n244, 510 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor–Leste v. Austl.) case 323, 381, 516, 580 Reparation for Injuries Suffered in the Service of the United Nations advisory opinion 39n56, 98n290, 106n6, 178n220, 258n144, 336, 337, 376, 444, 546 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria case 214n108, 215, 324n246, 517, 532, 613 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear case 99n302, 297n86, 320n222, 321n233, 537, 579 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals case 87n221, 630 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case 107n8, 111n31, 157n137, 220– 221n132, 277n8, 297n87, 535 Reservations to the Convention on the Prevention and Punishment of the Crime

Case Index of Genocide advisory opinion 24n103, 93n256, 142n51, 153n116, 185n255, 206n69, 211n96, 362, 447, 476 Right of Passage over Indian Territory case 94n263, 108, 125, 144n60, 160n149, 169n183, 171n190, 178n218, 210n88, 284n13, 295n74, 312n167, 314, 321, 322n234, 502, 506, 526, 572, 592, 597, 605, 613 Rights of Minorities in Upper Silesia (Minority Schools) case 50n109, 96, 97n281, 171, 207, 235, 252, 256, 257n135, 292–293n61, 293–294n66, 451, 493 Rights of Nationals of the United States of America in Morocco case 106, 121n80, 141n48, 285n19, 319, 417, 572 Serbian Loans case 91, 188, 235n5, 240n33, 243n50, 258, 260, 266, 268, 327n4, 328, 329, 338n57, 382, 518, 544, 552, 559, 590, 605 Settlers of German Origin in Poland advisory opinion 236, 239n23, 252, 253, 414, 450 Société Commerciale de Belgique case 214n108, 218, 257, 269, 270n203, 323, 494, 607 South West Africa case 43, 44n77, 50, 69, 115, 160, 184, 186, 198, 251, 311, 313, 314, 314n183, 321, 438, 447, 531, 592, 598, 609 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge case 213n105, 302n116, 379, 521, 564, 632 Sovereignty over Pulau Ligitan and Pulau Sipadan case 154, 308n148, 312n165, 403, 588, 601 Status of Eastern Carelia advisory opinion 140, 242, 256, 376, 493, 540, 541 Temple of Preah Vihear case 160, 177, 184, 188, 275n2, 310, 312n168, 414, 597 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.) case 170n185, 208n77, 211n93, 290n53, 371, 403, 411, 469, 560, 564, 620

Case Index Territorial and Maritime Dispute (Nicar. v. Colom.) case 64n88, 67, 162, 207, 209n83, 361, 413, 415, 454, 469–471, 474, 622 Territorial Dispute (Libya/Chad) case 42n69, 68, 154n120, 208n79, 209n87, 290n54, 308n148, 313, 409, 415, 587, 594, 600, 631 Territorial Jurisdiction of the International Commission of the River Oder case 111n30, 244n56, 250n96, 250n100, 265n173, 266n182, 380, 381, 456, 591 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory advisory

675 opinion 83n195, 168n173, 240–241n36, 246n66, 262n165, 270n209, 393, 524, 627, 628 Treaty of Neuilly‚ Article 179‚ Annex‚ Paragraph 4 (Interpretation) case 266n184, 589 United States Diplomatic and Consular Staff in Tehran case 33n9, 52n122, 60, 144n61, 151, 341n1, 368, 375, 422, 434, 491 Western Sahara advisory opinion 33n9, 35n29, 39n56, 83, 84, 94, 123, 175, 178, 179, 277n6, 286, 293n63, 295n75, 383, 439, 496, 498, 503, 541

General Index acquired rights 157n135, 254n118, 354, 448–450 See also vested rights (general principle of) Advisory Committee of Jurists 2, 9–14, 17–25, 30, 39n58, 43, 45, 132, 136, 146, 200, 344n11, 346 Members 9–10, 21, 26, 27 Meetings 10, 12, 13, 20 Proposals for Article 38 10, 15, 16, 22, 56 Alabama arbitration 122, 125, 299 analogy 38, 84, 86n208, 115, 125, 137, 139n35, 171, 200n38, 284, 337, 575, 606 appropriate effect (general principle of)  80n176, 313n171, 314–315, 592–596 See also ut res magis valeat quam pereat (general principle of) arbitral tribunal 26, 36n38, 50n106, 57n27, 86, 122, 125, 154, 237, 259, 238n16, 489 ascertaining general principles 3, 34n23, 40, 42, 43, 89–90, 99–101, 112, 113, 125, 145, 155, 163, 193–195, 195n9, 196, 197, 199, 202, 202n53, 209, 218n121, 229, 273, 283, 285, 338, 342 methodology 193–216 States’ role 201, 210, 213 audi alteram partem xx, 357, 517 automatic succession (general principle of) 288, 353, 403, 404 bad faith 322, 322n239, 372 bilateral custom 171n190 See also local custom bond of nationality (general principle of) 107, 126, 202, 283n10, 326, 328, 330–332, 331n18, 332, 338, 339, 358, 546, 558–559 boundaries 68–69, 78, 367, 374, 408, 622 continuity 286, 352, 363 stability 68n103, 288, 414–415 burden of proof (general principle of)  xxiv, 219, 301–305, 302n113, 305n138, 358, 492, 561–567. See also onus probandi incumbit actori (general principle of)

canons of supersession 3, 132, 166–174 generally 166–167 between general principles and treaties 168–171 between general principles and custom 171–172 among general principles 172–174 civilized nations 22–25, 29, 44, 63, 88, 93, 100, 118, 128, 153, 186, 193, 199, 204, 342, 345, 346 colonial law 84, 116, 290, 407, 408 committee of experts 248, 421 company 82n187, 86, 90, 116, 117, 284, 331–335, 398, 416, 547, 548, 551–552 comparativism/comparative research 113, 120n75, 188, 194, 196, 197, 199, 200, 345 compensation (general principle of)  245–248, 279, 303, 337, 417–438. See also reparation (general principle of) consent to jurisdiction (general principle of) 257, 292–295, 492–506 conservation of fish stocks 77, 77n164, 355, 471–472 Constitution of Danzig 77–79, 239 continental shelf 78n170, 95, 152, 171–172, 204n62, 207n72, 455, 467–471, 473, 501, 572, 610 contra proferentem xxi, 273 Council of the League of Nations 30, 216, 242, 257.See also League of Nations Court categories 221–222, 224, 227, 228, 231–233 ‘pcij only’ 225–229 ‘icj only’ 223–227 ‘pcij + icj’ 221, 222, 224, 225, 227, 233 Court’s competence 29n126, 257, 295, 299, 316, 535–543 Court’s jurisdiction 10, 12, 13, 15, 38, 44, 50, 81, 84, 97, 99, 108, 121, 122, 125, 176, 177, 179, 208, 226, 236, 255–257, 275–276, 280, 291–295, 298–301, 309–310, 312n167, 315–316, 488, 514. See also consent to jurisdiction (general principle of)

General Index Covenant of the League of Nations 12, 122, 140n42, 216, 238, 242, 258, 285, 328, 376, 440, 493, 560. See also League of Nations Cube 102–127 customary international law 135 interpretation 80 norms 159, 161, 163–167, 171–172, 343 obligation 319 relationship with general principles 132– 134, 138, 143–153, 157 trend of superseding general principle 153–156, 343 decisions xxxii, xxxiv, xl, 31, 38n60, 44–47 Definitive Statute of the Danube xli, 134n12, 239 diplomatic protection (general principle of) 81, 81n185, 98, 117, 258–260, 280, 284, 326–340, 543–552 elements 328–337 by substitution 334–335, 551 shareholders 37, 90, 116, 284, 334–335, 339, 398, 548, 551 doctrine 14n30, 21, 27, 82, 90, 91, 188, 269, 363, 366, 367, 508, 519, 607, 637 domestic law xxviii, 13, 21–22, 25, 40–41, 43, 51, 59, 60, 70, 82, 84–90, 95, 98, 100, 112, 120, 125, 129–131, 146, 188, 194, 196, 197, 197n16, 199–201, 219, 226n134, 237, 240, 243, 264, 269–271, 274, 282–284, 324, 331, 333, 334, 339, 342, 356, 485–486, 626–631, 637 domestic principles xxviii, 41, 43, 82, 90, 116, 240, 241, 284, 637 domestic underpinning xxviii, 103, 104, 112–119, 126, 130, 131, 148, 188, 226–229, 238, 240, 286, 291, 342, 383 drafting history 87, 114, 163 of pcij Statute 2, 17, 45 See also Advisory Committee of Jurists duration of the validity of treaties (general principle of) 249, 366–368. See also rebus sic stantibus (general principle of) effectiveness (general principle of) 80, 80n176, 210, 309, 313–315, 313n171, 314, 314n179, 359, 386, 420, 591–595. See also

677 ut res magis valeat quam pereat (general principle of) ejus est interpretare legem cujus condere (general principle of) 236, 271n213, 272, 360, 633–634 elevation (the process of) xxviii, xxix, xxxi, 40–42, 114, 117 equal treatment (general principle of) 77, 77n162, 106, 207n74, 235, 236, 238, 250, 252–253, 252n107, 255n124, 353, 354, 392, 450–454 See also equality (general principle of) equality of the League of Nations Members 251 equidistance 75, 170, 170n186, 355, 464, 473–474 equitable general principles 78, 78n169, 95, 182, 188, 188n281, 189, 189n286, 280, 355, 461–465 equity xx, xxi, 3, 18, 18n61, 19, 28, 29, 37n48, 41n68, 60n56, 114n38, 129n116, 130, 132, 143n59, 181–183, 181n235, 185n256, 186–189, 186n263, 188n275, 189n286, 189n288, 197n16, 318n205, 319, 319n214, 353, 392, 453, 461, 463, 465, 518, 519, 537, 572, 574 estoppel (general principle of)  188, 219, 235n5, 240, 280, 318n205, 319n214357518–521, 574, 577 European Commission of the Danube xxxiii, 97, 97n288, 100, 100n305, 106n4, 121n78, 134n12, 180, 180n226, 212n101, 239n23, 239n28, 244, 244n56, 244n57, 250, 250n96, 250n98, 253, 253n114, 444, 451, 455, 475, 482 ex aequo et bono xxi, 3, 15, 28, 71, 132, 182–186, 183n249, 185n256, 189, 189n288, 345, 461–462 exceptions 63, 80, 82, 104, 112, 135n19, 145, 210, 216, 293, 294, 367, 383, 532, 637 exhaustion of domestic remedies (general principle of) 97, 134n16, 150, 236, 238, 260–261, 260n153, 280, 304, 326, 328, 332–334, 333n33, 333n34, 338, 339, 358, 552–557 expropriation 168, 253–254, 419, 420, 448, 544. See also acquired rights (general principle of) and vested rights (general principle of)

678 facts and evidence 281, 301n111, 560–567 fairness xx, 76, 186, 186n263, 189 forum prorogatum xxii, 97, 276, 291, 296, 296n77, 296n78, 296n79, 505, 507–509, 520, 577 freedom of the seas (general principle of) 60, 243–245, 243n52, 454–455 of trade (general principle of) 170, 170n187, 207n72, 241, 243, 243n47, 354, 415–417, 456 of navigation (general principle of) 77, 77n161, 106, 111, 111n29, 212, 212n102, 236, 239, 241, 243–245, 243n53, 245n60, 250, 355, 416, 451, 455–458 frontiers 272, 289, 289n36, 383, 402, 406, 407, 410, 411, 440 functioning of the Court 38, 281, 358, 535–543, 642 General Assembly Resolutions xlii, 31n2, 120n75, 123, 123n87, 181, 286, 318, 380, 393, 439, 441 resolution 1514 (xv), xlii, 123, 123n87, 286, 439 resolution 2625 (xxv), 318, 380, 441, 575 general international law 34n17, 36n33, 77n160, 92, 122, 127, 127n406, 142–143, 144n62, 149–153, 150n98, 157, 171, 294, 294n68, 299, 339, 339n59, 345, 364, 365, 370, 390, 391, 395, 397, 426, 427, 430, 449, 463–464, 488–489, 491, 504, 549, 573, 637 general principles of domestic law 43, 54, 88, 131 general principles ascertained anew 221, 223, 277, 280, 282, 286 borrowed from the pcij 223, 225, 278, 286 cardinal 160, 180n229, 199, 268, 310, 389, 462, 477, 479, 480, 596 characteristics xxxi, 3, 102–105, 112, 127, 128, 131, 177, 229, 317, 405, 433, 586 See also parameters existence of 25, 48, 49n102, 50, 53, 61, 89, 96, 110, 123, 125, 136, 137, 140, 144, 145, 151, 157, 163, 168, 194, 195n6, 200n40,

General Index 201n47, 205, 216n119, 218n124, 219, 236, 237, 271, 277, 296, 327, 343, 380, 522, 593 fundamental 54, 57–60, 60n52, 64n85, 76, 92, 93, 95, 101, 118, 121, 131, 140n42, 142, 144n62, 150, 156, 157n134, 174, 182, 187, 196, 199, 201, 206n67, 234, 242, 292, 313, 318, 319n214, 361, 375, 376, 380, 381, 388, 414, 420, 450, 466, 476, 484, 496–498, 500–502, 504, 506, 518, 528, 574, 582, 594, 617, 627 general 76, 77, 173 interpretative xxix, xxx, xxxi, 4, 103–106, 108–112, 134–135, 146, 170, 193, 219, 220, 223–225, 229–236, 264–272, 274, 276, 278, 281–283, 305–324, 342, 360, 571–634 not specific to treaty interpretation 110, 161, 264, 267–268, 307, 309–316, 591–605 obsolete 165–166, 174 of domestic law 43, 54, 86, 88, 131 of international law 1n3, 23n93, 33n16, 43, 54, 58n37, 59n40, 83n191, 88, 94n265, 95n269, 105n3, 108n15, 119, 124n94, 127, 129–131, 133n5, 137n29, 148, 155, 157n133, 196n12, 200n40, 201n47, 202n53, 211, 235, 235n4, 247n79, 341n2, 364, 420 of treaty interpretation 72, 78–80, 154, 159, 160, 165, 224, 264 procedural xxix, xxx, xxxi, 4, 103–108, 110–111, 129, 157, 167, 170, 178, 214, 220, 223–225, 229, 231–233, 236, 245, 255–263, 277, 280–282, 291–305, 318, 327, 330, 342, 358–359, 488–571, 641, 642 prominent xiv, 26, 195, 223–225, 227, 228, 231, 324, 343 recurrent xxx, 119, 121, 219–221, 235, 277–279 related to evidentiary proceedings 301–305 related to the Parties’ standing 258–261 specific 76–78, 205 substantive xxix, xxx, xxxi, 103–106, 111, 129, 146, 170, 193, 222–223, 225, 229–231, 233, 236, 241–255, 265, 278–281, 286–290, 342, 351, 362–487 that regulate non–State actors 241, 249–255

General Index that regulate State conduct 105, 241–250 types xxxi, 88, 102, 105–112, 223–224, 236 underpinning xxxi, 3, 102–105, 112–127, 129–131, 137, 146–149, 156, 162, 176, 188, 193, 210, 214, 216, 222, 225–233, 238–245, 251–255, 258, 260, 262–266, 268, 271, 274, 284–288, 291, 297, 302, 305, 313, 315, 318, 327, 330, 337n54, 342, 351 vague 71, 128, 213, 214, 408 variations on the term 128, 206 good faith (general principle of) 19, 59n46, 62, 76, 95, 112, 118, 128, 220, 281–282, 306, 317–323, 368–375, 518, 571–584 hierarchy 15, 128, 133, 133n6, 134 humanity (general principle of) 68, 69, 93, 182, 442 icj Statute Article 36 108, 121–122, 139, 151, 256–257, 262, 275, 284, 291–292, 295, 298–299, 312, 315, 321, 333 Article 37 275n2, 293 Article 38 1–4, 9–10, 15–17, 15n37, 20n70, 22, 26, 26n109, 31, 31n3, 33, 35, 39, 39n60, 42–43, 45, 46, 48, 49, 52, 54–56, 55n3, 55n7, 56n13, 61–63, 61n60, 61n65, 65–67, 70n116, 71, 73, 74, 77, 78, 81, 82, 88–90, 92, 102, 103, 110, 117n54, 118–120, 119n66, 122, 123n90, 126n102, 127, 127n106, 131–133, 135–138, 143, 146–149, 151, 153–154, 160–162, 165, 175, 178–179, 181–187, 189, 193–194, 196–200, 196n12, 198n22, 198n23, 200n42, 203–206, 208–211, 213, 218, 218n121, 233, 235n4, 241, 241n37, 241n38, 262, 274, 312, 319, 340–346, 341n2, 344n5, 351, 489, 508, 538, 545 Article 53 32n7, 300, 477, 490, 491, 516, 538 Article 59 16, 31, 43–47, 293, 513, 609, 611, 612, 614–616 in abstracto 33 in foro domestico 21, 22, 51, 119. See also domestic law in limine litis xxii, 291, 534 individual judges 96, 212, 212n97, 213, 218n121, 637

679 intention of the Parties is decisive (general principle of) 80, 109, 173, 173n198, 265–266, 591–592 international community xx, xxi, xxiii, xxviii, xxx, 4, 23–25, 23n93, 31, 39, 40, 42–8, 52–54, 63, 65, 68, 71, 87, 92–96, 101, 105, 107, 111, 112, 118, 128, 139, 141, 144, 163, 166, 177, 181, 198–200, 202, 205, 212, 237–238, 241, 278, 290, 325, 341, 344–347, 406, 407, 477, 483, 637 international instruments 44n77, 97, 109, 120, 122–123, 126, 146, 161, 229, 230, 236–237, 239–241, 240n36, 264, 273, 274, 287n25, 299, 307, 312, 317–319, 324, 328, 339, 342, 377, 386, 489, 629 international judicial law–making 3, 31–53 international jurisprudence 4, 9, 11, 14, 17, 26, 39, 95, 126n100, 127, 194–197, 201, 237, 238, 263, 283, 313, 594 International Law Commission 1n5, 41, 71, 107n10, 120, 122, 159, 306, 319n217, 329n10, 335n42, 339–340, 344, 363, 398, 399, 437, 550, 573, 634 international law prevails over national law (general principle of) 110, 110n23, 269–271, 270n204, 626–627 international law–making xxviii, xxix, xxxi, 20, 31–40, 51, 15n97, 345 international organizations 24n104, 83n194, 211n94, 211n95, 262, 319n217, 443, 445, 496, 573, 586 international responsibility (general principle of) 62, 241, 245–248, 274, 279, 294, 393–401, 421, 425, 430, 449, 495, 512, 629. See also State responsibility (general principle of) international underpinning xxviii, xxix, xxxi, 103–105, 112, 113, 119–123, 125, 129, 131, 137, 146–147, 156, 193, 210, 216, 226–232, 238, 241–244, 248, 251–252, 254, 255, 258, 261, 263, 264, 271, 285–287, 291, 305, 337n54 interpretation authoritative 39, 48, 271–272, 271n213, 585, 633 of customary international law 42, 80, 108–110, 606, 643 of international decisions 268, 606–626

680 interpretation (cont.) of international law xxix, 14, 32, 36, 37, 39, 48, 83, 92, 99, 100, 105, 108, 111, 115, 275, 317, 325, 637 of treaties 37, 72, 77–80, 108–110, 134, 154, 159–161, 160n151, 163–165, 167, 194, 195, 224, 236, 264–268, 273, 306–316, 324, 585–605, 642, 643 of other international instruments 109, 110, 161, 264, 267–268, 274, 307, 309, 324, 591–605 ordinary method 268, 596 intertemporal law (general principle of) 208, 631–634 investors 254, 448, 551 islands 290, 290n53, 373, 374, 402, 403, 408, 409, 411–413, 454, 469, 471 judges’ individual opinions 61, 100, 212, 298 judgment (vs. decision) 45–46 judicial creation xxviii, xxix, xxxi, 40–43, 123 judicial discretion 102, 139, 228, 326 judicial process 52, 514–534, 560, 567, 568 judicial underpinning xxviii, xxix, xxxi, 102, 103, 112, 113, 119, 120, 123–127, 130, 146, 176, 214, 226–230, 232, 238, 241, 243–245, 251, 253, 255, 258, 260, 264–266, 268–271, 274, 284–286, 291, 292, 296–298, 302, 305, 307, 309, 310, 313, 315, 318, 327, 330, 332, 342 jura novit curia (general principle of) xxii, 35, 35n32, 36, 47–48, 96, 99, 99n301, 111, 542–543 jurisdiction. See also consent to jurisdiction (general principle of) of the Court 97, 106n7, 109, 109n19, 173, 173n198, 177, 179, 208, 220, 235, 235n4, 240n36, 255–257, 265, 265n176, 265n177, 276, 280, 280n9, 291–296, 296n78, 310–311, 315–316, 315n186, 315n187, 316n198, 356, 357, 360, 362, 457, 490, 492–514, 522, 525, 526, 528, 538, 578, 590, 594, 595, 597, 602–605, 608, 617 of the former European Commission 106, 250 of the former International Commission of the river Oder 111n30, 244n56, 250,

General Index 250n96, 250n100, 266n182, 380, 456, 590, 591 established on the date of filing the application (general principle of) 208, 280, 357, 509–511 jus cogens xxiii, xliii, 3, 62n72, 132, 169, 182–183, 294, 390, 399, 477, 504 justice xx, 15, 19, 20, 28, 29, 32n7, 36, 37n48, 59, 68, 69, 76, 87n217, 99, 128, 186–187, 189, 200, 204–205, 234, 319, 356, 358, 359, 449, 461, 482, 515–516, 537–540, 569, 570, 572 Kingdom of the Serbs, Croats and Slovenes 329 kompetenz–kompetenz (general principle of) 80–81, 97–98, 121, 122, 125, 142, 143n54, 255–256, 280, 291, 298–301, 356, 488–492 land dominates the sea (general principle of) 52, 78n168, 204, 204n62, 208, 277, 355, 468–470 Latin maxims xxi, xxv, 35, 91, 92 origins 71, 274 League of Nations Assembly 15, 16, 24, 183, 216n118, 239 Council 30, 216, 242, 251, 257, 547 Covenant See Covenant of the League of Nations Members 29, 216n118, 234, 258, 258n141, 258n142, 261, 262, 328, 354, 358, 445, 446, 545, 559, 560 lex posterior xxiv, 169, 174 lex specialis derogat legi generali (general principle of) 19, 80n174, 168n172, 268, 268n193, 360, 605 lifting of the corporate veil 284 local custom. See bilateral custom lump sum payments (general principle of) 354, 437, 438 majority (general principle of) 197, 202, 223, 226, 227, 274, 283, 292, 305, 342, 354, 446–447 Mandate for Palestine 259 Maps 301, 358, 410, 560

General Index maritime delimitation xxxviii, 32n3, 36n33, 37n45, 66, 66n94, 72n124, 149n94, 153n118, 162, 162n155, 163, 163n157, 213n105, 303n121, 308n148, 312n165, 355, 370, 374, 385, 409, 412, 454, 460, 464–465, 469, 470, 473–475, 500, 564, 570, 588, 600, 613, 622–623 Mavrommatis model 200–202 maxims 13, 27, 28n121, 90–92, 90n237, 274, 306n139. See also Latin maxims methods 2n9, 3, 31, 42n69, 55, 55n8, 63, 70, 75, 101, 110, 175, 193n2, 194, 197, 265, 268, 417, 418, 437, 461–463, 505, 596–597, 599, 637 minority xxxiii, 50n109, 60n56, 96, 97n281, 111, 111n32, 140n40, 171n188, 207, 207n72, 207n76, 235, 235n3, 235n9, 239n30, 239n31, 252–253, 252n110, 253n113, 256n132, 256n134, 257n135, 292n138, 294n66, 451–453, 493, 632 mixed underpinning xvii, xxviii, xxix, xxxi, 112, 113, 126–127, 226–230, 232–233, 241, 255, 256, 262, 288, 298, 305, 391 modality (‘principles’ and ‘rules’) xxviii, xxix, xxx, 63–72, 75, 90, 101, 107, 116, 131, 149, 155, 162, 175, 180, 183, 185, 204, 205, 235, 235n4, 240, 241, 336, 505, 508, 637 Monetary Gold principle 294, 294n70, 357, 512–513 municipal law. See domestic law nationality x, xxiii, xxxiii, 86, 98, 114, 116, 126n99, 178, 178n219, 202, 218, 218n123, 249, 249n92, 252, 283n10, 287, 326, 330–335, 337–339, 366, 405, 417, 484, 546, 547, 550–551, 558, 559 bond of nationality (general principle of)  x, 107, 126, 202, 283n10, 326, 328, 330, 330n15, 331, 331n18, 332, 338, 339, 358, 546, 557–559 nations 22–25, 23n94, 24n97, 25, 27, 44, 51, 89, 100, 128, 182n240, 197, 344–346 natural meaning 591 natural prolongation (general principle of) 78, 466–468

681 ne bis in idem (general principle of)  xxiv, 212 negotiations in good faith (general principle of) 62n74, 305n138, 320, 352, 368–375, 566, 581, 582, 621 non ultra petita (general principle of)  xxiv, 111, 111n31, 157, 157n137, 277, 291, 297–298, 297n85, 358, 535–537 non–appearance before the Court 300, 491, 516 non–intervention (general principle of) 59, 59n48, 144, 353, 378, 380, 385–387 non–legal principles 185, 345 non–State actors, ix 241, 249–255 Nottebohm (Mr) xxxviii, 81, 81n181, 107, 107n11, 116, 116n45, 122, 122n83, 123, 123n90, 125, 126, 126n98, 126n99, 142, 142n53, 151, 151n108, 201n45, 202n50, 208, 283, 283n10, 284, 284n13, 295, 295n72, 295n74, 299, 299n98, 330, 331, 331n18, 488, 494, 506, 507, 509, 512, 547, 558, 559 omitted general principles 106n6, 166, 213–216, 274, 298n93 onus probandi incumbit actori (general principle of) xxiv, 276, 291, 302–303, 302n112302n113, 303, 303n123, 358, 561–568 opinio juris xxiv, 41, 50, 54, 96, 100, 112, 144, 145, 145n68, 147, 163, 164, 167, 339, 386, 461, 637 other rules xxviii, xxx, 3, 132, 174–180, 182, 209n81, 234, 273, 276, 323–324, 343, 505 Outer Space Treaty 65, 65n90 pacta sunt servanda (general principle of) xxv, 59n46, 62, 95, 112, 212, 282, 317, 317n199, 359, 571, 573, 576, 582–584 parameters 222, 283. See also characteristics, Court categories, types and underpinning generally accepted 23, 114, 124, 125, 127, 237, 243, 249, 254, 270, 283, 284, 382, 385, 400, 401, 409, 445, 446, 448, 451, 506, 570, 582, 626–628 universally accepted xxiii, 95, 140n42, 143n59, 237, 245, 263, 456, 523

682 parameters (cont.) well–recognised 91, 93, 124, 125, 284, 390, 442 Parties’ consent 238, 255, 291, 292, 294, 295, 505 pcij Statute Article 34 35n28, 258, 258n142, 328, 559 Article 36 262 Article 38 xiii, 9–25, 10n226, 26n109, 43, 45, 63, 183, 200, 235n4, 241, 241n37, 241n38, 258n142, 274, 346n22 Article 41 95n272, 140n42, 238, 263 peoples 23, 93, 94, 346 peremptory norms of international law. See jus cogens Phillimore xxiii, xxviii, xlii, 9–13, 17, 19–23, 23n89, 23n91, 29, 60n50, 63, 93, 94n262, 123n87, 173n195, 173n196, 132, 146, 187, 346, 354, 383, 384, 392, 421, 438–443, 476 political questions 535–537 positive international law 28, 82–85, 90, 90n237, 100, 290, 344, 344n11, 407, 408, 606 precedent xxix, 40, 42, 113, 123–125, 156, 174–176, 228–230, 277, 299, 302, 391, 488, 491, 498, 510, 522, 542, 583, 592, 603 preparatory work 79 79n173, 109, 180, 219, 276, 281, 282, 307–309, 307n144, 307n145, 359, 587–588, 600. See also drafting history principles as a matter of principle 209 considerations of principle 518 mentioned in abstract 70, 214, 324n245, 361, 611, 613, 630 moral xxi, 27, 130, 131, 183–184, 184n253, 188n275, 196, 211n96, 345, 425, 431, 476 non–legal 184, 185, 211, 345 prefix 204, 207, 209, 209n81, 222 in principle 19, 69n107, 119, 126, 157, 162, 177, 178, 202, 209, 210, 284, 369, 394, 412, 417, 457, 498, 566, 567, 592 State–invoked 49, 213 Prize Court xli, 16, 37, 37n48, 186, 186n261 procedure before the Court 105–107, 111, 170, 202, 245, 262, 281, 324, 328n9, 357, 514–534, 569

General Index provisional measures (general principle of) 95, 95n272, 127, 216n119, 246, 263, 263n166, 357, 418, 428, 523–524, 533, 538, 562, 617 proximity (general principle of) 78, 78n166, 355, 466, 472–473 reasoning xx, 31, 40, 45–46, 51, 59, 59n42, 94, 96, 99, 105, 129, 134, 136, 136n23, 137, 146, 149, 155, 156, 167, 171, 179, 183, 185, 199–201, 109n81, 210–214, 285, 297, 298, 328, 337, 387, 520, 532, 537, 578, 598, 612, 614–616, 625, 633 rebus sic stantibus (general principle of) xxi, 91–92, 91n246, 218n123, 236, 241, 248–249, 248n87, 286–288, 287n25, 287n26, 352, 366–367 reciprocity (general principle of) 48, 62, 94, 97, 97n286, 108, 108n13, 169–170, 169n183, 170n184, 207n75, 236, 255, 261–263, 262n162, 264, 280, 357, 380, 497, 524–531, 603 regulation of its own currency (general principle of) 241, 243, 382 reparation (general principle of) xxxix, 39n56, 67, 76, 83, 83n190, 98, 98n290, 106, 106n6, 106n7125, 126, 142, 142n52, 154, 155, 155n125, 178, 178n220, 219, 236, 238n16, 241, 245–248, 245n63, 245n65, 247n78, 248n85, 258n144, 259, 274, 279, 328, 336, 336n49, 337, 338, 354, 376, 396–398, 417–423, 426–437, 444, 516, 544, 546, 547, 550, 552, 611, 616 calculation 247n77, 248, 259, 336, 423, 544 for diplomatic protection 98, 107, 248, 259, 328, 336–338, 430, 544, 546, 550 in kind 246, 247, 259, 336, 419, 434, 435, 544 restitutio in integrum (general principle of) 237, 245–248, 245n64, 354, 425, 427, 430, 434–438 res inter alios acta (general principle of)  xxv, 207n71, 286, 286n24, 352, 361 res judicata (general principle of) xxvi, 19, 36, 49, 51n116, 80, 80n179, 91, 91n245, 110, 110n22, 118, 174, 174n200, 218, 218n124, 220, 235, 236, 268–270, 269n196,

General Index

683

269n199, 269n200, 269n202, 274, 281, 360, 483, 516, 606–626 reservations xxxix, 24n102, 93, 93n256, 138, 142, 142n51, 153, 153n116, 161, 165, 185, 185n225, 198, 206, 206n69, 211n96, 294, 315, 316, 316n198, 362, 447, 476, 502, 528, 529, 594, 603, 605, 629 resolutions 13n23, 73, 80, 120, 120n75, 122, 181, 373, 393, 510, 575, 577, 578, 595 General Assembly 31, 73, 120n75, 122, 123, 123n87, 181, 286, 318, 380, 393, 439, 441 Security Council 44n77, 122, 172n194, 175n205, 251n103, 321, 321n229, 364, 368, 373, 384, 439, 443, 446, 484, 573, 577, 578, 593 restitutio in integrum (general principle of). See reparation (general principle of) restitution in kind. See reparation (general principle of) retroactivity 163 Roman maxims. See Latin maxims and maxims Root 9–14, 12n20, 17, 19–21, 19n62, 21n81, 22, 29, 47, 63, 71, 90, 132n2, 523 rules of procedure 37, 42, 105, 107, 170, 261, 327

stability of treaty relations 288, 368 standing before the Court 236, 260, 281, 327, 330n14, 358, 543–560 State declarations 239, 315 State independence (general principle of) 140n44, 241–242, 352, 376–378 State practice 32n3, 41, 59n44, 98, 99, 120, 144, 145, 147, 148, 164, 182n244, 237, 339, 474, 550 State responsibility (general principle of) 60, 66, 246, 279, 365, 393–401, 425 State sovereignty (general principle of) 140n44, 241, 280, 352–353, 376–379, 411, 638 State succession (general principle of) 236, 239, 248, 248n86, 249, 288, 324, 353, 401–404, 406 State pleadings and/or submissions 33n14, 48–51, 96, 107, 108, 111, 152, 157, 177, 213, 219n132, 238, 265, 277, 292n61, 297, 302, 305, 393, 420, 422, 426, 493, 535–537, 555, 561, 562, 569, 570, 609, 624 States’ agreement. See Special Agreement status quo ante bellum (general principle of) xxvi, 121, 250, 250n97, 356, 482 supersession. See canons of supersession

San Francisco conference 16 scholarship 2, 3n10, 26–28, 63, 101, 112, 135, 167, 174, 178, 185, 193, 195, 196, 199, 343 methodology 193–196, 199 scope of the research 196, 203, 209n81, 211–213, 351 self-determination of peoples (general principle of) 44, 60n50, 93, 94, 123, 173n196, 197n21, 286, 354, 383, 403, 439–441 shareholders 37, 90, 116, 284, 334, 335, 338, 339, 398, 548, 550, 551 sound administration of justice (general principle of) 68, 69, 189, 204, 205, 358, 516, 537–539 sovereign equality (general principle of) 19, 59, 155, 173, 352, 379–381, 387 Special Agreement 49, 72, 125, 132n1, 292, 297, 313, 315, 315n187, 328n9, 329, 413, 421, 489, 498, 499, 537, 542, 544–546, 557, 584, 591, 592, 595

territorial character of criminal law (general principle of) 240, 383 territorial integrity (general principle of)  121, 140n44, 173, 242, 280, 320, 377, 379, 388, 389, 407, 580. See also State sovereignty (general principle of) territory (cession of) 289, 405 thresholds. See parameters transboundary harm 320, 391, 580–581 transplantation xxxi, 40–42, 120, 267 transposition. See transplantation treaty breach 142, 245–246, 245n65, 544 Treaty of Neuilly 266–267, 266n184, 267n186, 589 of Saint Germain xli, 242, 243, 245, 245n60, 252, 377, 456 of Trianon xlii, 237, 249, 401, 405, 421 of Versailles xlii, 111, 121, 141, 239, 249, 250, 267, 267n186, 272, 322, 322n40, 401, 456, 482, 571

684 Treaty (cont.) on the Non–Proliferation of Nuclear Weapons 318, 370, 575 types of general principles xxxi, 3, 58, 66, 88, 102, 103, 105–112, 193, 223, 224, 229, 231, 237, 317, 351 unanimity (general principle of) 172, 172n193, 173, 237n14, 249, 251, 354, 365, 445–446 unclos iii 152, 162, 170 underpinning. See general principles unilateral acts/actions 125, 144n66, 181, 202n55, 284n13, 295, 341n4, 356, 392, 506–507, 523, 612 unilateral declarations xxxiv, 37, 109, 161, 181, 238, 312, 314, 316, 317, 525, 573, 583, 594, 595 United Nations Administrative Tribunal 211, 450, 543, 561, 568 Charter 16, 60, 65, 73, 99, 121, 122, 139, 165, 174, 184n253, 185, 285, 308, 318, 320, 321, 337, 378, 379, 381, 386, 388, 389, 439–441, 477, 479, 484, 485, 561, 573, 576, 586, 617 General Assembly 31, 122, 181, 286, 441 universally accepted. See parameters ut res magis valeat quam pereat (general principle of) xxvii, 80n176, 109, 110n25, 313n170, 359, 592–596. See also effectiveness (general principle of) and

General Index appropriate effect (general principle of) uti possidetis juris (general principle of) xxvii, 50n108, 84, 86n212, 173, 286, 288–290, 353, 405–413 validity of treaties. See rebus sic stantibus (general principle of) vested rights (general principle of). See acquired rights (general principle of) Vienna Convention on Diplomatic Relations xlii, 121, 285, 330n14, 550, 557 on Consular Relations xlii, 333, 549, 557, 601 Vienna Convention on the Law of Treaties xix, xlii, 41, 62, 95n271, 109, 121, 134, 159n145, 162, 163n158, 180n226, 224, 264, 278, 285, 306n140, 307n143, 310n155, 312, 317n201, 343, 364, 367, 368, 477, 575, 576, 578, 579, 583, 584, 586, 599–603, 629, 630 Article 26 317–318, 327, 576–577, 579–580, 584 Article 27 88, 629, 630 Article 31 41, 109, 111, 154, 159–161, 164n160, 180, 306, 307, 310–312, 587, 599–601 Article 32 109, 165, 180, 307n145 Article 53 477 Article 62 287, 367, 368