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).

346

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