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    RA-58 - Principles of Public International Law, Brownlie, 7th Edition, Sources of Law

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    Ivan Montealegre Conchas
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    PRINCIPLES OF PUBLIC INTERNATIONAL LAW Seventh Edition oO BY IAN BROWNLIE, CBE, QC, FBA . Bencher of Gray's Inn Chichele Professar of Public International Law in the University of Oxford (Emeritus) Distinguished Fellow of All Souls College, Oxford Member of the Institute of International Law Member and Former Chairman of the International Law Commission | | | | OXFORD UNIVERSITY PRESS UNIVERSITY PRESS ‘Great Clarendon Steet, Oxford OX2 6DP Oxford University Press is3 department of the University of Oxford, furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Osford New York ‘Auckland Cape Town DaresSalsam HongKong Karachi ‘Kuala Lumpur Madrid Melbourne Mexico City Nairobi ‘New Delhi Shanghai Talpe! Toronto With offiesin Argentina Austria Bra2il Chile Czech Republic France Greece ‘Guatemala Hungary Itsy Japan Poland Portugal Singapore South Korea SwitzeMland Thailand Turkey Ukraine Vietnam, Oxford isa registered vade mark of Oxford University Press Inthe UK andin certain other countries Publishes im the United States bby Oxford University Press inc, New York (© Tan Brownlie 2008 ‘The moral righns ofthe author have been ascerted Database right Oxford University Press (maker) Firstedition 1966 Second edition 1973, “Third edition 1979 Fourth edition 1990, Fifth edition 1998 Sixth edition 2003, : Seventh edition 2008 Allright reserved, No pat of this publication may be reproduced, stored ina reteieval system, or transmitted, in any form or by any means, ‘without the prior permission in writing of Oxford University Press, foras expressly permitted by law, or unde terms agreed with the app ‘reprographice rights organization, Enquiries concerning reprodu ‘outside the scope af the above should be sent to the Rights Department, ‘Oxford University Press, atthe adress above ‘You must not circulate this book in any other binding or cover ‘and you must impose the same condition on any acquirer British Library Cataloguing in Publiation Data Dataavailable Library of Congress Cataloging in Publication Data Data available ‘Typeset by Newgen Imaging Systems (P) Lu, Chennai, India Printed in Great Britain onacid-free paper by GPL Antony Rowe, Chippenham, Wiltshire ISBN 978-0-19-921770-0 (Pbk) ISBN 978-0-19-955683-0 114) 13579108642 @” ‘Change. ‘as bees) plex eve handbo | we ony The r (Dre i ticular!) Final) 1 *SQURCES OF THE LAW! see Fgjniceaiy = 1, INTRODUCTION fyy.tul cont sof tudysthe sources of international law and the law of treaties (treated in must be regarded as fundamental: between them they provide the basic thelegab regime. Itiscommon for writers to distinguish the formal sources and the material sources ayeiThe formésare those legal procedures and methods for the creation of rules of ‘heral application which are legally binding on the addressees. The material sources provide evidenge, of the existence of rules which, when proved, have the status of gallyebindingwrules of general application. In systems of municipal law the concept fformal'sourceefers to the constitutional machinery of law-making and the status therrule is established by constitutional law. In the context of international relations ise of the tet formal source’ is awkward and misleading since the reader is put fo sich machinety.exists for the creation of rules of international law. Decisions of Internationil Court, unanimously supported resolutions of the General Assembly ofthe United Nations concerning matters of law, and important muilateral treaties ‘concerned to codify or develop rules of international law, areal lacking the quality to “bind states generally. In a sense ‘formal sources’ do not exist in international law. As + asubstitute, and perhaps an equivalent, there is the principle that the general consent tes creatés fuilés of general application. The definition of custom in international essentially a statement of this principle (and not a reference to ancient custom Se git Selden, 101 FHague Recut (1960, 1, 16-108; Fitzmaurice, Spmbolee Versi (1958. 83-76; Patry The Sourees and Evidences of International Law (1965); Lauterpacht, International Law: ed Pipers (1990), 58-135; Ellas. in Friedmann, Henkia, and Lssitayn eds) Transnational Law ix nging SOAP UID), 34-6; Schacier, in Macdonald and Johnston eds) The Suture and Process imal ab (943), 745-99; Eudes en Vhonneu de Roberto Ago (1947 Cassese and Welle (ds) yn ntermatonal Law-Making (1948); Thiway, 6 BY (190), 31-131 and 76 2003), 9iCharhey 87/993) 529-st;Tormuschat, 241 Hague Recueil (993,1V) 195-374 Fidler, 39German {1950 198-248; Zemanek, 266 Hague Recueil (1997), 131-232 Degan, Soures of nernaional Law H (19979 Boyle ald Chinkin, The Making of International Lav (2007), 27 fe 6-12 4 PRELIMINARY TOPICS The consequence is that in international law the distinction between formal and ‘material sources difficult to maintain, ‘The former in effect consist simply of a quasi- constitutional principle of inevitable but unhelpful generality. What matters then is the variety of material sources, the all-important evidences of the existence of con- sensus among states concerning particular rules or practices. Thus decisions of the International Court, resolutions of the General Assembly of the United Nations, and Saige = Article ‘law-making’ multilateral treaties are very material evidence of the attitude of states i toward particular rules, and the presence or absence of consensus, Moreover, there isa process of interaction which gives these evidences status somewhat higher than mere ‘material sources. Thus neither an unratified tseaty nor a report of the International Law Commission to the General Assembly has any binding force either in the law of treaties or otherwise. However, such instruments stand as candidates for public reac- tion, approving or not, as the case may be: they may stand for a threshold of consensus and confront states in a significant way. “The law of treaties concerns the question of the content of obligations between individual states: the incidence of obligations resulting from express agreement. In principle, the incidence of particular obligations is a matter distinct from the sources. ‘Terminology presents some confusion in this respect. Thus treaties binding a few states only are dubbed ‘particular international law’ as opposed to ‘general interna- tional law’ comprising multilateral ‘law-making’ treaties? to which a majority of states are parties. Yet in strictness there is'no fundamental distinction here: both types of treaty only create particular obligations and treaties are as such a source of obligation and not a source of rules of general application. Treaties may form an important mate- rial source, however: see section 4 below. It is perhaps useful to remark on two other usages of the term ‘sources’. Thus the term may refer to the source of the binding quality of international law as such and also to the literary sources of the law as sources of information. 2. THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE “The pertinent provisions are as follows: Article 38. 1, The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: | (@) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as laws (0 the general principles of law recognized by civilized nations; 2 See infra, pp. 12-14 SOURCES OF THE LAW cle 59:-The désision of the Court has no binding force except between the parties and attitude of staf gctofthabparticular case, vreover, theres igher than he internation ver in the la for public 21d of conséi se provisions are expressed in terms of the function of the Court, but they repre- he previots practice of arbitral tribunals, and Article 38 is, generally regarded as aree anid iflooked at closely, cannot be regarded asa straightforward ent- aon ofthe sources. The rst question which arises is whether paragraph 1 creates $ to-a source of mutual obligations ‘of the parties, Source (a) is thus primarily «Source of rules of general application, although treaties may provide ‘of the formation of custom. Sources (b) and, perhaps, (c) are formal sources, | Beast or those who care for such classification. Source (4), with its reference ‘assub- ie jurists regard (2), asa reference to formal sources, and Fitzmaurice has criticized classification of judicial decisions as ‘subsidiary means’ In general Article 38 does not rest upon:a distinction between formal and material urces’. Thus tw as suchi {Blais in any case; and presumably a treaty contrary to a custom or toa general ba inciple part of the jus cogen* would ke void or voidable. Again, the interpretation of “Atieaty may involve resort to general principles of aw or of international law. A treaty ay be displaced or amended by a subsequent custom, where such effects are recog- Bueby the subsequent conduct of the parties.” 4 See Hudson, Te Permanent Cour of international ustic, (1943), 601 f See also the Revised General efor the Paci Settlement of international Disputes, Art. 28; Model Rules on Arbitral Procedure adopted theILC, Art 10, rb ILC (1958, i. 83; Report of eel, ibid. 8, At. 38hasoen been incorporated textu- iorby erence in the compromis of other tribunals 5 Gk Costilow Zales LR22 (1955), 540.See also Quadei, 113 Hague Recueil, 342-5; Judge Tanaka, Diss South West Africa Cases (Second Phase), IC} Reports (1966), 300; Akehutst, 47 BY (1974-8), 273-85, 58 Symbolae Verzj ap. 174 {2 Sezludge Moreno Quintana, Right of Passage Case, IC} Reports (1960), 9. ray ch, 23,00 js opens anditseffects Pir Transport Services Agreement Arbitration, 1963, 1LR38, 182; RIAA xvi, 5; Award, PLY, 5.5 6 PRELIMINARY TOPICS 3. INTERNATIONAL CUSTOM" DEFINITION Article 38 refers to ‘international custom, as evidence of a general practice accepted as law, and Brierly? remarks that ‘what is sought for is @ general recognition among States of a certain practice as obligatory’. Although occasionally the terms are used interchangeably, ‘custom’ and ‘usage’ are terms of art and have different meanings. A.usage isa general practice which does not reflect a legal obligation,” and examples are ceremonial salutes at sea and the practice of exempting diplomatic vehicles from parking prohibitions." EVIDENCE ‘The material sources of custom are very numerous and include the following: diplo- matic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g, manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, !“international and national judicial decisions," recital¥ in treaties and other international instru- ments, a pattern of treaties in the same form, the practicé of international organs," 1 Seesupraa, 1nd see further: Lauterpacht, The Development of International Law by the International Court (1958), 368-93; Guggentem, ip Etudes en Uhonneur de Gzorges Sell (1950), 1 275-84; i, Tate 93-113; Slablazewsk, 31 Z.a.d24V. (1970, 810-54 Thirlway, Inernational Customary Law and Codifeaton (1972) Barbers Neths, In. LR (1967), 367-81 Manin, 0 RGDIP (1976), 7-54; Akehust, 47 2 (974-5), 1-53; Mejers,Neths. YD. (1978), 3-26; Seen, Melanges Rewer (1981), 479-99; Bor, German ‘Yebk, 25 (1982, 9-5b; Cheng, n Macdonald and Johnston eds) The Structure and Process of International Lam pp 519-50; Viral, 183 Hague Recueil (1983, V), 167-206; Jiménez de Aréchagain Bsays fn Honour of udge Manfred ack (1984), 57585: Abi-Saab, in Brudesenhoneur de Roberto Age i 53-65; Thishay,61 BY 1990), 3-110 and 76 BY (2005), 92-108; Wollke, Custom in Present International Law, 2nd ed, (1993) i, 24 Neth. Yk. (1983), [16 Mendelson, 66 BY (195), 177-208; Zemanek, Recueil des Cours, val, 266 (0997), 149-67, L.A. Report ofthe Sixty Ninth Conference (London), 2000, 712-90; Kammerhoter, Burp. Tourn, 15 (2008), 523-53; Arangio-Rul, Mélanges Salmon (2007), 98-124 "Law of Nations, 6th edn (1961), 61. See also Judge Read inthe Fisheries case, C} Reports (1950 191: “Customary iernational aw isthe generalization of the practice of tates” 1 See further infra, p.8-10,0n the opinia juris. M Se Parking Priviees for Diplomats Case CR, 396 (Fd, Admin. CL, FRG) 1 See in particular Parry 44 Grot. Sc. (1958, 1959), 145-86; MeNaie, Opinion, Preface: Zemanck, Festschrs fr Rudolf Bernhard (195), 289-306, Custom apart from the practice of statermaybeinfluenta, inthe general law ofthe sea; the Toten 16] P- 135: nn. Digest (1946), no. 2 16" he Scotia (1871) 14 Wallace 170 1 the later provided a basis forthe concept ofthe historic bay 1 nits Advisory Opinion inthe Genocide cae the IC] refers tothe practic of the Councit ofthe League of Nations inthe mate of reservations to multilateral conventions IC} Reports (195), 25, Se also the Jot Diss. Op, ibd a, and resolut ‘Obviously 1 provietek 1 Visits Fog ifyaiid cont ‘gndrile’ re “mattiridg 6! ‘stich in its F Eyed“ =. dhe party aininner tk “the oficial "the Fapid suc i Wate (Second P| (3960, 40.4: aan er Judge Lach pee SOURCES OF THE LAW ‘consistency and generality of a practice are proved, no particular dura. éFeqiilred: the passage of time will of course be a part of the evidence of general- bpconsit ‘A long (and, much less, an immemorial) practice is not necessary, tiiey P? ‘Ys Pikiece ofa10-mite rue for ays? awby the Inter yi, 275-88; iy i yservlont pear tobe 00 rare in international practice to have given ese to sucha rule” ‘ 29 Secinfra,pp. 176-8 i Preface: Zemin ‘tezmay bein sh 40 ib pert Welingion Roop 9 pedge Spent anciba, Leper Fernandes jog sNatth Sea Continent! ShoCaser, IC} Reports (1969), 43 bi. 86 per fadge Pails Neco; bid. 229 oe Lach Bid, 246 er judge Sorensen: Nicaragua , United States (Merits), IC} Reports (1986). p98, 8 PRELIMINARY TOPICS (©) Generality of the practice ‘This is an aspect which complements that of consistency. Certainly universality is not required, but the real problem is to determine the value of abstention from protest bya substantial number of states in face ofa practice followed by some others. Silence may denote either tacit agreement or a simple lack of interest in the issue. It may be that the Courtin the Lotus case” misjudged the consequences ofabsence of protest and also the significance of fairly general abstention from prosecutions by states other than the flag state." In the Fisheries Jurisdiction Case (United Kingdom v. Iceland) the International Court referred to the extension of a fishery zone up to a 12-mile limit ‘which appears now to be generally accepted’ and to ‘an increasing and widespread accept- ance of the concept of preferential rights for coastal states’ in a situation of special dependence on coastal fisheries.** (a) Opinio juris et necessitatise® ‘The Statute of the International Court refers to ‘a general practice accepted as law’? Brierly®* speaks of recognition by states of a certain practice ‘as obligatory’, and Hudson® requires a ‘conception that the practice is required by, or consistent with, evailing international law’. Some writers do not consider this psychological element to bea requirement for the formation of custom,” but it is in fact a necessary ingre- dient. The sense of legal obligation,.as opposed to motives of courtesy, fairness, or morality, is real enough, and the practice of states recognizes a distinction between obligation and usage. The essential problem is surely one of proof, and especially the incidence of the burden of proof. In terms of the practice of the International Court of Justice—which provides a general guide to the nature of the problem—there are two methods of approach. In many cases the Court is willing to assume the existence of an opinio juris on the bases of evidence of a general practice," or a consensus in the literature, or the previous 2% See infra, pp. 9-10 24 Lauterpacht, Development, pp. 384-6, See also the Paguete Habana (1900), 175 US 677, 2 1CJReports(1974), at23~6, See also the North Sea Continental Shelf Cazes, IC] Reports (19691432, For reliance onthe practice ofa limited numberof states see the Wimbledon (1923), PCI, Ser Ay no. 1, See also Fernanderv. Wilkinson, ILR, 87, 446, 435-8. 28 See Chatumont, 129 Hague Recueil(1970,1),434-45; Ver International Law in Historical Perspective, 4, 37-41; Barberi, 50 Rivsta did, (1967), 563-83; P. de Visscher, 196 Hague Recueil (1972, I), 70-5; Bos, A Methodology of International Law (1984), 236-44; Mendelson, 66 BY (1983), 177-208; Blias, 44 ICLQ (0995) 501-20; Schachterin,Essaysin Honour of KreystofSkubiscewski (1996), 531-40; Sienho Yee, German Yrbk, 43 (2000), 227-38, 2% Quoted in Briggs, p. 25. 3® See Guggenheim, Etudes Selle, 275-80; Fischer Williams, Some Aspects of Modern International Law (1934) 44-6, See now Guggenbicim, i, 103-5, For Kelsen the opino juris isa ition to disguise the crea tive powers ofthe judge: see Revue internationale de la théorie du droit (1939), 253-74: and ef. Principles of International Law (1952), 307, (2nd edn, 1967), 450-1 4 See Lauterpacht, Developmen, p. 380; id, Coll Papers, i 6; Baxter, 129 Hague Recueil (1970, 1, 6% Guggenheim, 103-5. CF, Sorensen, p. 134, SOURCES OF THE LAW pinationsofthe Court or other international tribunals.” However, ina signifi- auminority of cases the Court has adopted a more rigorous approach and has called lence of the recognition of the validity of the rules in question s, The choice of approach appears to depend upon the nature of ues (tha is, the state of the law may be a primary point in contention), and the i aise tionoftheCourt. mile Mit, ifthe aity ofthe judicial decisions tobe found among the reported cases were sufficient ridespread ag |provein point offact the circumstances alleged by the Agent for the French Government, 4 merely show that States had often. in practice, abstained from instituting criminal lNof delimiting the continental shelf had become a part of general or customary law thedate ‘of the Geneva Convention of 1958, or in relation ta the proposition that the juent practice of states based upon the Convention had produced a customary le; However, it ig incorrect to regard the precise findings as in all respects incompat- Jeiith the view that the existence of a general practice raises a presumption of opinio Turis In regard to the position before the Convention concerning the equidistance G punciple, there was little ‘practice’ apart from the records of the International Law ission, which revealed the experimental aspect of the principle prior to 1958,* sidering the argument that practice based upon the Convention had produced (0972,10,79 208; la Sienho Yee, arpeen Commision ofthe Danube, Ser. B, nos, p. 4 per Deputy judge Negulesco. Cl the passage from efudgmentin the Asylum case quoted supra, "OF Sethe criticisms of Lautezpacht, Development, p. 386, Se, however, MacGibbon, 33 BY (1957) 13 2316 Reports (1969.3 Obi 23.22- " sc mre itera area 10 PRELIMINARY TOPICS character; (b) the Convention had only been in force for less than three years when the proceedings were brought and consequently:** Although the passage of oly a short period oftime isnot necessarily or of itself, ar to the formation ofa new rule of customary internationat law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and vietually uniform inthe sense of the provision invoked:—and should moreover have occurred in such a Way as to show a general recognition thata rule of law or legal obligation is involved, Nevertheless, the general tenor of the Judgment” is hostile to the presumption as to opinio juris and the Court quoted the passage from the Lotus case set out above.*? A broadly similar approach was adopted by the Judgment of the Court in the Case of Nicaragua v. United States (Merits) and the Court expressly referred to the North Sea Cases: In considering the instances of the conduct above described, the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necesstatis, Either the States taking such action or other States ina position to react to it, must have behaved so that their conduct is ‘evidence of belief that this practice is rendered obligatory by the existence of a rule of law requiring it, The need for such a belie, i. the existence of a subjective element, is implicit in the very notion ofthe opinio juris sive necessitatis.(ICJ Reports (1968), 44, para. 77) *inithe’prict principles i BILATERAL RELATIONS AND LOCAL CUSTOMS | United Kin, ‘yhile'deny) anifested In the case concerning U.S. Nationals in Morocco” the Court quoted the first of the passages from the Asylum case quoted earlier and continued: ‘In the present case there has not been sufficient evidence to enable the Court to reach a conclusion that a tion as one right to exercise consular jurisdiction founded upon custom or usage has been estab- lished in such a manner that it has become binding on Morocco’ ah ob In this case the Court may seem to have confused the question of law-making See seeralt and the question of opposabil yi. the specific relations of the United States and pF nostsipen;:! 2 hid. 1-2, oA Seegene 3 tha. % Thi 43-5, and sein particular, 48, pur. 77 4° For comment see Baxter, 28 Hague Recueil (1970, 1), 67-% Amato, 64 AI (1970), 892-900; Marek, Reve blge (1970, 44-78. For the views of dissenting judges see IC] Reports (1963), 156- (Koreishy), J ehtbegiin 1759 197 rel) 2132 (Lah) 24-2 erent Sess te Sep Op Tee Pen he ee ‘Nuclear Tests Case, IC) Reports (197), 253 a 305-6. 1G) Reports (1986), 1. 42 Thi. 18-9, para. 207 See also pp 97-8, par. 14, p, 97-103, paras. 184-93; pp. 106-8, paras, 202-6. + IC) Repors (1952), 199-200. See Lauterpacht, Developmen, p. 388-52 Supra p.7 © aie upplied. SOURCES OF THE LAW cal customyin-favour of Portugal in respect of territorial enclaves inland from tof Daman (Damo). In this type of case the general law is to be varied and jonentofthe special right has to give affirmative proof of a sense of obligation ito fthesterritorial sovereign: opinio juris is here not to be presumed on the tintouspractice and the notion of opinio juris merges into the principle of PURSISTRNT OBJECTOR? pin which,asa matter of practice, custom resolves itself into a question of spe- illustrated further by the rule that a state may contract out ofa custom presumption of acceptance which is to be rebutted. Whatever the theoretical cpnnings of the principle, it is well recognized by international tribunals, and “The Unies Kingdom, admitted the general principle of the Norwegian argument here ‘denying that, as a matter of fact, Norway had consistently and unequivocally ted a refusal to accept the rules, Thus the United Kingdom regarded the ques: one of persistent objection. The Court did not deal with the issue in this way, dy Fitzmaurice, 92-ague Recueil (1957, 1), 106. On opposability in general see infra, pp. 85-6. The era cnet eon eer tp 0. Se alo Deputy Judge Neglesco, European Commission ofthe Danube PCT, Se. IL; and judge Klaestad, Nottebohm (Second Phase), IC] Reports (1955), 30. 23, nerallykehuest, 47 BY (1974-5), 23-7; Bos, German Yebk. 25 (1982), 43-53, id, A Methodology ational Law pp. 247-55; Sten, Harvard Int 1], 26 (1985), 457-82; Colson, Washington LR, 61 (1986), 9, Charney, 56 BY (1985), 1-24; id, 87 A (1993), 538-42; Thiehway, 61 BY (1990), 106-8, principle wabirecognized by both parties in the Anglo-Norwegian Fisheries case; and also by tive opinionesee Fitzmaurice, 92 Hague Recueil (1957, 1), 99-100; Waldock, 106 Hague Recueil rensen, 101 Hague Recueil (1960, I), 43-4; iménez de Aréchaga, 159 Hague Recueil 51K 30, Se further Schachter, 178 Hague Recueil (1982, V), 36-8 See the Anglo-Norwegian Fisheries ase IC] Reports (1951), 13; North Sea Continental Shelfcase ibid 65) 26-7;Sep. Op. of Judge Ammoun, p. 131; Diss. Op.of Judge Lachs,pp.235, 238; and Diss.Op.of udge 2 PRELIMINARY TOPICS however, and the ratio in this respect was that Norway had departed from the alleged rules, if they existed, and other states had acquiesced in this practice. But the Court is not too explicit about the rote of acquiescence in validating a subsequent contracting cout of rules. Here one has to face the problem of change in a customary regime.*4 Presumably, if a substantial number of states assert a new rule, the momentum of increased defection, complemented by acquiescence, may result in a new rule,* as in the case of the law on the continental shelf, Ifthe process is slow and neither the new rule nor the old have a majority of adherents then the consequence is a network of special relations based on opposability, acquiescence, and historic title.® le PROOF OF CUSTOM Pr In principle a court is presumed to know the aw and may apply a custom even iit has not been expressly pleaded. In practice the proponent ofa custom has a burden of b proofthe nature of which will vary according to the subject-matter and the form of the pleadings. Thus in the Lotus case*” the Court spoke of the plaintiff's burden in respect of a general custom, Where a local or regional custom is alleged, the proponent ‘must prove that this custom is established in such a manner that it has become binding on. theother Party’* ; 4, ‘LAW-MAKING’ TREATIES AND OTHER MATERIAL SOURCES Itmay seem untidy to depart from discussion of the ‘formal’ sources, of which custom is the most important, and yet a realistic presentation of the sources involves giving prominence to certain forms of evidence of the attitude of states to customary rules and general principles of the law.%® ‘Law-making’ treaties, the conclusions of interna? tional conferences, resolutions of the United Nations General Assembly, and drats adopted by the International Law Commission have a direct influence on the content 5 See Fitzmaurice, 30 BY (1953), 24-6; id, 92 Hague Recueil (1957, 1), 99-101; Sorensen, 10s Hague! Recueil (1960, TID, 43-7. The dictum which requires explanation, at p. 131 ofthe Reports, is:In any eventthe ten-mie rule would appear to be inapplicable as against Norway Inasmuch as she had always opposed any attempt vo upp itta the Norwegian coast? 51 See Lauritzen eta. v. Government of Cie, UUR23 (1956), 708 at 710-12, 5 Sincedelict cannot be justified by an allegation ofa desire to change Ynelaw, the question of opinio jun arises ina special form and ia the early stages of change can amount to litle more than a plea of good faith, 5© Both forms of objection are restricted in any case by the norms of jus cogens: on which see ina ch. 28.5, : | 57 PCH, Ser. Ano. 10,p.18 x 5 Asylum ease, IC} Reports (1950), 276, 59 Seeinfa, pp. 16-19. SOURCES OF THE LAW B a Shiga Tes atreaty ‘ior the joint carrying out of a single enterprise is not nce is a ing, singe fulfilment of its objects will terminate the obligation. Law-making title. eatieacreate general-norms for the future conduct of the parties in terms of legal 1856 (onsgeutrality in maritime warfare), the Hague Conventions of 1899 and heJawalafwar and neutrality), the Geneva Protocol of 1925 (on prohibited tence of organs, and the like, have the same character. Such treaties are in le binding only on parties, but the number of parties, the explicit acceptance les of law, and, in some cases, the declaratory nature of the provisions produce a iglaw-creating effect atleast as great as the general practice considered sufficient appott a customary rule. By their conduct non-parties may accept the provisions altilateral convention as representing general international law:* this has been ‘with: Hague: Convention IV* of 1907 and the rules annexed relating to land re. Even an ynratified treaty may be regarded as evidence of generally accepted atleast in the short run.66 nisis"Inany See MeNai Law of Treaties, pp 216-18, for expression of fim opinion onthe eee of Art. 2, para. 3 wdalways 9p Ajltbe Charter which he describes as the nearest approach to lgisltion bythe whole community of = hathasyetseen alse” Sitnee must be evidence of content 0 the extension ofthe rule, particularly ifthe rales found ina weston oo convention: in the Asylum case the Court was unwilling to hold Pera bosind by the rule contained video ony. CE. the European Huan Rights Convention Case, LR 2 (1958, 608 610, etiThe Hague Conventions and Declarations of 1899 and 1907 (Sd edn, 195), 100. See the pberg Judgment: Ann: Digest 13 (1946) no, 32:and the declarations ofboth ies in the Korean wa. See Brier. 129 Hague Recueil (1970, 1), 6; Notebahm case (Second Phas), IC} Reports (1953), 23: Bla Opinion, ii, (197), 47. CE. North Sea Continental Shel Case, bi, (1965), 8-3. IO Repots (969)3, 4 PRELIMINARY TOPICS pre-existing customary law.** The principles on which the Court discriminated between articlesincluded reference to the faculty of making unilateral reservations which applied to some articles but not to those which, by inference, had a more fundamental status. With respect it may be doubted if the existence of reservations of itself destroys the probative value of treaty provisions, The Court concluded, further, that the provision (on delimitation of shelf areas in Article 6 of the Convention had not become a rule of customary law by virtue of the subsequent practice of states and, in particular, of non- parties.” The six dissenting judges regarded the Convention as having greater potency, more particularly in generating rules after its appearance.” Both in the Gulf of Maine case” and in the Libya~Malta Continental Shelf case,” the Chamber of the Court and the full Court, respectively, accorded evidential weight to certain aspects of the United = yiote donstitates ‘Nations Convention on the Law of the Sea adopted in 1982 (but not then in force). “expression of su. In any event, even if norms of treaty origin crystallize as new principles or rules of WP Gations ofthis kd customary law, the customary norms retain a separate identity even if the two norms speedy consolid: appear identical in content.” mnsraterthe Re ied byithe Ch "5 the Resolution o = Declaration ont OTHER TREATIES Bilateral treaties may provide evidence of customary rules,” and indeed there is no * Declarationon I clear and dogmatic distinction between ‘law-making’ treaties and others. If bilateral of Legat Princip treaties, for example on extradition, are habitually framed in the same way, a court may BE Space* tr som regard the usual form as thelaw even in the absence ofa treaty obligation.”* However, *interptetation at considerable caution is necessary in evaluating treaties for this purpose. “vidual récolut THE CONCLUSIONS OF INTERNATIONAL CONFERENCES” ‘The ‘Final Act’ or other statement of conclusions of a conference of states may be a form of multilateral treaty, but, even if it be an instrument recording decisions not Some ee Resolutions (1969), T> Gasgeiétn (1966), seen Nate 6 Ibid 32-1, Se also Patilla Nervo, Sep. Op, pp. 86-34 Ammoun, Sep. Op pp. 102-6, 123-4 © See Baxter, 129 Hague Recueil (1971) 47-51 See also Judges Tanaka, Diss. Op, 1) Reports (196), 182; Morelli, Diss. Op. p 198:Lachs, Diss Op. pp. 225-£, Sorensen, Diss. Opp. 248, IC] Reports (1969) pp Al-S. 7 tpi. 56 (Bengaon) 136-8, 163,169 (Korey): 172-80 (Tanaka; 197-200 (Morel); 221-32 (Lachs); 241-7 Gorensen) 72 IC} Reports (1982), 294-5, paras, 94-6 7 thi, (1985), 29-34, paras. 27-34 7 See the Judgment in the Cas of Nicaragua v, United States (Merit) bid 92-6, paras, 1-9. See fur {her onthe same issue, ibid. 152-4 Sep. Op. Nagendra Singh; 182-4 (Sep. Op, Ago): 204-8 Sep. Op, Nik 216-19 Diss Op,.Oda; 302-6 Diss, Op, Schwebel) 529-36 (Diss, Op, lennings. 7% See Baxter, 129 Hague Recuil(1970,1,75-1;Srensen, Les Sources de dot international (1946) 96-8. Seealsothe Wimbledon, PI] Ser. Ano p.28,Paneves7s-Saldutiskis Railway Ser /B,n0.6,pp.51-2,pet Judge Ehrlich; Novtbohm, IC} Reports (1955), 22-3 see so Ine Lechin ea, Ann Digest 16 (1949), 0. InreDilaser etal, 1818 (1951), no 99; The Sate (Duggan Tape. Rid no 108; Lagoe. Bagganin bi, 22 (1955), 535 Lauritzen v. Government of Chil, ibid. 23 (1956, 78 at 715-16. 2 CE. ture Muzzt Acitno,ILR 1 (1951), no. 98; Re Tibl, ibid, 201953), 36 77 See johnson 35 BY 195), 1-38 See alo infra, ch. 28, on international transactions SOURCES OF THE LAW 15 TIONS ‘OF THE UNITED NATIONS GENERAL ASSEMBLY” aking cole of organizations is considered further in Chapter 31, section 10, jhthesearesalutions are not binding on member states, but, when they are swith general norms of international law, then acceptance by a majority cof sychopinions."° Even when they are framed as general principles, reso- jakind provide a basis for the progressive development ofthe law and the fribunat’, iomon Prohibition of the Use of Nuclear Weapons for War Purposes, the tion on the Granting of Independence to Colonial Countries and Peoples; the onPesmanent Sovereignty over Natural Resources: and the Declaration AS In-gome.cases a resolution may have direct legal effect as an authoritative etation and.application of the principles of the Charter.§ In general each indi- SeeRe Cimpora etal, ILR 24 (1957); 518, Namibia Opinion, IC} Reports (1971). 47. eneraliy See Cheng, 5 Indian Journ, (1965), 23-48; Castaneda, Legal Efects of United Nations (1969); id, 129 Hague Recueil (1970, 1), 211-331; Bastid, Recuell d'études en hommage & iim (1968), 132-45; Asamoah, The Legal Significance ofthe Declarations ofthe General Assembly De ation (1960 Sabie A BY (196-0), 198 0202-6 Bo, 15 Hage Rel 965, Thierry, 16? Hague Recueil (1980, I), 432-84, Blane Sloan, 58 BY (1987), 39-150. See further nest Africa Cases (Second Phase), [C] Reports (1966), 171-2 (Sep. Op. vaa Wyk), 291-3 (Dis. Op. HAL (Oh Op ep). A5-7. 44-7 (Dis. Op, Pala Seethe Judgment nthe Case of Nicaragua. United Sates (Merits, IC} Reports (1986), 98-104, paras, pp 107-8, paras. 202-5, esol no. 95; 11 Dec. 1946. Adopted unanimously. no. 1653 XVD}; 24 Nov. 1961, Adopted by 55 votes to 20;26 abstentions. no, 1514 (XV), 14 Dec. 1960, Adopted by 89 votes to none; 9 abstentions. po, 1803 (XVIT), 14 Dee, 1962; UK Contemp. Practice (1962), i283. Adopted by 87 votes to 2 ae ‘no 1962 (XVII), 13 Dee. 1963; 3 LM (1964), 160; 58 AJ (1964), 477, Adopted unanimously. 16 PRELIMINARY TOPICS 5. GENERAL PRINCIPLES OF LAW” Article 38(1)(0) of the Statute of the International Couet refers to ‘the general principles of law recognized by civilized nations’, 4 source which comes after those depending more immediately on the consent of states and yet escapes classification asa ‘subsidi- ary means’ in paragraph (4). The formulation appeared in the compromis of arbitral tribunals in the nineteenth century, and similar formulae appear in draft instruments concerned with the functioning of tribunals. in the committee of jurists which pre! pared the Statute there was no very definite consensus on the precise significance of the phrase. The Belgian jurist, Baron Descamps, had natural law concepts in mind; and his draft referred to ‘the rules of international law recognized by the legal con- science of civilized peoples. Root considered that governments would mistrust a court which relied on the subjective concept of principles of justice. However, the commite tee realized that the Court must be given a certain power to develop and refine the principles of international jurisprudence. In the result a joint proposal by Root and Phillimore was accepted and this is the text we now have.” : Root and Phillimore regarded the principles in terms of rules accepted in the domes! ticlaw of al civilized states, and Guggenheim” hokis the firm view that paragraph (c) must be applied in this light. However, the view expressed in Oppenheim? isto be pre? ferred: “The intention is to authorize the Court to apply the general principles of muni pal jurisprudence, in particular of private law, in so far as they are applicable to relation of States. The latter part of this statement is worthy of emphasis. It would be incorrect to assume that tribunals have in practice adopted a mechanical system of borrowing from domestic lw after a census of domestic systems. What has happened is that inter~ national tribunals have employed elements of legal reasoning and private law analogies in order to make the law of nations a viable system for application in a judicial proc- ess, Thus, it is impossible, or atleast difficult, for state practice to evolve the rules of Sorensen, 101 Hage Recueil (1960, HD), 16-34, i, Les Sources, pp 123-52: Guggenheim, Tait i 201-31; Ver ternational Law in Bitorical Perspective, 47H Laserpach, Private Law Sour font Analogies of Intemational Law (1927) International Law Collected Paper i (1979), 13-21% iy Development pp. 158-7sCheng General Principle ofLaw Applied by International Courts and Tbunal (0958, 163-80, MeNair 38 BY (1957), -1% Rouen, Droit International pub, i 370-97 Jenks, Td Prospects of international Adjudication (968), 266-95; Parry. The Suces and Evidences of Intematond Lap. 83-31 erdross, Recueil eudes om ommage Guggenheim, 521-0, Paul 1 2ndian Journ (19704 324-50; Akehurt, 25 /CLQ (1976), 8-25; Lammers, Essays Memory af HE van Pane (980), 53-75, “Thirhway, 6 BY 1990), 10-27 and 76 BY (209), 108-13 Shahabaddeen, Essays in Honour of Si Roberh Jennings 996), 90-103 Fr the view that gener principles of lw provide third syst for dispates ‘beeen corporations and goverment ree MeNai, 8 BY (1957), 1-19, nd the Abu Dab award (1951, 161911959, 207 1 Seethe draftey or the establishment ofaninternationsl prizecout, 1907. Act. 7 (general principles of justice and equi. See also the European Con. forthe Protection of Human Rights and Funda Freedoms, At. 7 pars2 ® Prociverbun (1920), 36,395,344 Sorensen remarks that the compromise formula hasan inherent Ambigeity which to snyetional interpretation othe provision es Sources p. 125, 90 94 Hague Reel (1958 1,78, oe SOURCES OP THE LAW ” fe and evidence which a court must employ. An international tribunal chooses, ndadapts elements from better Geveloped systems: the result is a new element of In the Fabiani” case rance‘and Venezuela the arbitrator had recourse to municipal public law on tidnof'the responsibility of the state for the acts of its agents, including judicial 6 cnmitted in the exercise of their functions. Reliance was also placed on gen- ‘iples of law in the assessment of damages. The Permanent Court of Arbitration Rbthe prinefple of moratory interest on debts in the Russian Indemnity case. Since original Statute of the International Court came into force in 1920, tribunals not oth. ‘bound by it have treated Article 38(1)(c) as declaratory of the law applicable. FP (910) Hague Court Reports. i. See Simpson and Fox, International Arbitration, pp. 152-7; Jenks, Prospects of International lation, pp. 306- Lautrpacht, Analogies pp. 60-7: id, Function pp. 115-18; Seidl: Hohenveldetn, Aj (1959), 853-72 (112, Hague Court Reports, p. 297 Se also Saropoulsv. Bulgarian State (1927), Ann. Digst 4 G8. 173 (extinetive prescription). ‘Admin, Decisis no. (1923), Mixed Claims Commission, US- Germany; Ann, Digst,2(1923-9), 20 Bip otbrbig Sot. Germany 0928), bid. 4 (1927-8), n0. 369; Lena Goldfields arbitration (1930) ib 3) na 1:36 Cornell LQ 42, Xife Jenks, Prospects of International Adjudication, pp. 268-305; Lauterpacht, Development 150-72 irnaurie, 35 BY (1959), 216-28, Waldock,106Sague Recueil (1962, 1), 57-68; Becket Corfe el case IC] Pleadings il 267; Blondel, Recuel études en homage &Guggenher, 201-36 8 PRELIMINARY TOPICS referred to general notions of responsibility. In the Chorzéw Factory case" the Court observed: ‘..one party cannot avail himself ofthe fact that the other has not fulfilled some obligation, or has not had recourse to some means of redress if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him’. Ina later brie cy stage ofthe same case” the following statement was made: the Court observes that 89, toon it is a principle of international law, and even a general conception of law, that any Ti iderions breach of an engagement involves an obligation to make reparation’ In a nimber of Nig catbgort cases the principle of estoppel or acquiescence (préclusion) has been relied on by the inciplesof cor Court, and on occasion rather general references to abuse of rightsand good faith may occur Perhaps the most frequent and successful use of domestic law analogies has been in the field of evidence, procedure, and jurisdictional questions. Thus there have been references to the rule that no one can be judge in his own suit,” litispendence,!%* res judicata,” various ‘principles governing the judicial process," and ‘the principle universally accepted by international tribunals... to the effect that the parties toa case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given... In the Corfu Channel case"® the Court had recourse to circumstantial evidence and remarked that ‘this indirect evidence is admi ted in all systems of law, and its use is recognized by international decisions’ In his dis- senting opinion in the South West Africa cases (Second Phase)" Judge Tanaka referred to Article 34(1)(c) ofthe Court's Statute as a basis forhuman rights conceptsand pointed out that the provision contains natural law elements, The reascning of the Court in the Barcelona Traction case (Second Phase)" related very closely to the general conception of the limited liability company to be found in systems of municipal law. ee 181 Chorziw Factory (Indemnity Jurisdiction), PCH, Ser. A, n0.9,p. 3. 12 Chorzbw Factory (Merits), PCI, Se. A, no. 17.2. 4 See the Basten Greenland case (1933), PCY), Ser. A/B, no. 53, pp. 52, 62, 65 Arbitral Awart ofthe King of Spain, IC] Reports (1960), 182 208, 213;the Temple case, IC} Reports (1962). 223,31, 32 ee ch. 28, 5.4; ibid, individual op. of Judge Alfaro, pp. 39-5 See also bis 2, where the is" isan esab- lished rule oflaw thatapleaof error cannot be allowed san element vitating consent ifthe paty advancing it contributed by its own conduct tothe eror. 104 eg the Free Zones case (1920), PCI, Ser. A, no. 24, p. 12: and (1932), Ser, A/B, no. 46.167. For ref erences to individual judges use of analogies se Lauterpacht, Development, p. 167, 20, and se also 1C} Reports (1960) 66-7, 90 107, 136 105 Mosul Boundary case (1925), PCI, Set. no. 12, p.32. 406 German interests in Polish Upper Silesia (1925), PCIT, Ser. A no.6,p. 20, 107 fect of Awards ofthe UN. Administrative Tribunal, IC) Reports (1954) 53 198 Adv. Op. Application for Review of Judgment No 158, 1C} Reports (1973) 16 at 177,181, 210; Adv-Op. Applicaton for Review of ludgment No. 273, bid (1982), 325 at 338-40, 345,356, 109 Blectricity Company of Sofa and Bulgaria (1938) PCI, Ser. A/B,n0. 79. . 199 110 Ic) Reports (1949), 18. See also Right of Passage over indian Territory (Prelim. Objection), IC} Reports (0957), 181-2; German Interest in Polish Upper Silesia, PCT, Ser. An. 6 (1925) p.19;and, on forum proro- saturn, infrasch. 32,5. "11 [C} Reports (1966), 61 294-8, ‘ME thi, (1970), at 33-5, See generally infra ch. 22,55 SOURCES OF THE LAW GENERAL PRINCIPLES OF INTERNATIONAL LAW'? PR airnee bric may refer to cules of customary law, to general principles of law as in Article orto logical propositions resulting from judicial reasoning on the basis ofexist- rnatiriablaw and municipal analogies, What is clear is the inappropriateness gid categorizatioh of the sources. Examples of this type of general principle arethe sof consent reciprocity, equality of stats, finality of awards and settlements, falvalidity of agreements, good faith, domestic jurisdiction, and the freedom of isiIn many cages these principles are to be traced to state practice. However, they tatily abstractions from a mass of rules and have been so long and so generally fedas.to-beto longer directly connected with state practice. In a few cases the ‘concetniéaf tHiough useful, is unlikely to appear in ordinary state practice. iblneleibjéet-thatter of ‘general principles of aw’ overlaps that of the present foweVed}Gektdin fundamental principles have recently been set apart as over- intipleSOF fus'cogens which may qualify the effect of more ordinary rules." PBitral 2,332 said iis iteratureof the law contains frequent reference to decisions of arbitral tribunals. Equality of arbitral tribunals has varied considerably, but there have been a number 57-8, Sorensen, LesSources pp. 312-2: 106 Hague Recueil (196, 1), 62-4; Simpson and Fox, International Arbtation, p, 132. See #0 IC) ers (1958), 106-7 (Moreno Quintana); ibid (1960), 136-7 (Fernandes); and iid, (1962), 43 (Spender Recueil tudesen hommmaged Guggenheim, pp. 521-30; Vitaly, bi, 531-54, Cf, Fitzmaurice, 30 BY S32; 36 BY (1959), 185, rubrc'General Principles ai. Symbolae Vera pp. 161-8, Heech. 2348.5 Aaaterpacht, Development, pp. 8-22; Waldock, 196 Hague Recueil (1962, Il}, 88-95; Fitzmaurice, fenten, Les Sources, pp. 153-76: Thrlay 6 BY (1990), 127-38; and 76 BY 20 PRELIMINARY TOPICS of awards which contain notable contributions to the development of the law by emi- nent jurists sitting as arbitrators, umpires, or commissioners.” REFERENCE TO ARBITRAL AWARDS BY THE INTERNATIONAL COURT OF JUSTICE AND ITS PREDECESSOR ‘The Court has referred to particular decisions on only five occasions," but on other occasions'"? has referred compendiously to the jurisprudence of international arbitration. DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE AND ITS PREDECESSOR ‘The Court applies the law and does not make it, and Article 59 of the Statute" in all be equa part reflects a feeling on the part of the founders that the Court was intended to settle Seemip state disputes as they came to it rather than to shape the law. Yet itis obvious that a unani- ie tile ‘mous, or almost unanimous, decision has a role in the progressive development of the ‘based. He law. Since 1947 the decisions and advisory opinions in the Reparation,” Genocide, Fisheries.” and Nottebohm" cases have had decisive influence on general interna- tional law. However, some discretion is needed in handling decisions. The Lotus deci- sion, arising from the casting vote of the President, and much criticized, was rejected by the International Law Commission in its draft articles! on the law of the sea, and atts third session the Commission refused to accept the principles emerging from the Genocide case (a stand which was reversed at its fourteenth session).'"* Moreover, the 1 See eg. the Alabama Claims arbitration (1872), Moore, Arbitration, . 653; and the Behring Sea Fisheries arbitration (1893), Moore, Arbitration, i755. See also infra, pp. 139-40 on the Palmas [sland case, and pp. 403. on the Canevaro case, and, generally the series af Reports of international Arbitral Awards published by the UN since £948, and the foreword to vo. "8 Polish Postal Service in Danzig (1925), PCH, Se. B, no. 1, p, 30 (to the PCA in the cate ofthe Pious Funds ofthe Californias, RIAA ix. 1); the Lotus (1927), PCT, Se. A, no 10, p, 26 (to the Costa Rica Packet case, Moore, Arbitrations, . 4448); Eastern Greenland case (1938), PCI, See. A/B, no. 53, pp. 45-6; Hague Court Reports, ii ap. 170 (Co the Island of Palmasease iz, p. Mt-2) Nottebohm, IC] Reports (1953), 19 (tothe Alohame sebiteation, infra . 34); Gulf of Maine case ibd, 1984, pp. 302-3, 324 (tothe Anglo-French Continental Shelfarbitraion, TLR 54,6). NY Chorzéw Factory (Jurisdiction) (1927), PCU, Set: A, 90.9, p. 31; Chorzéw Factory (Merits) (1928), PCI}, Set. A, no, 17, pp. 3, 47; Fisheries case, IC] Reports (1951), 13. See also Peter Pzmany Univerly (0933) PCU, Set. A/B, no. 61, p. 243 (consistent practice of mixed arbitral tribunals): Barcelona Traction ‘ase (Second Phase), 1CJ Reports (1970), at 40. The Court has also refered generally to decisions of other tribunals without specific reference to arbiteal tibunals: Eastern Greenland cae, supra at p46; Reparation Jor injures, IC) Reports (1989), 186 20 Supra... 12 frase 122 Infra, ch. 2.8.3 123 Infra 9.176, 14 Infrasch. 18, 13 seeinfra,pp, 239-40, 15 See inf, ch. 7.8.3 SOURCES OF THE LAW rbetakenthat itis incautious to extract general propositions from opinions tit idgments devoted.to a specific problem or settlement of disputes entangled with peclaléelationsiof two states.” Beremembered that Article 38(1)(d) ofthe Statute starts with a proviso: Subject pprovisionsof Article 59, judicial decisions...as subsidiary means for the deter- onofulesoflaw’ Article 59 provides: The decision of the Court has no binding ;pbasjbetwaen the parties and in respect of that particular case’. Lauterpacht eit that Article 59 does not refer to the major question of judicial precedent tervention, the construction given inthe judgment equally.binding upon it. Lauterpacht concludes that ‘Article 59 would thu asstate directly what Article 63 expresses indirectly’. Beckett™ took the view l¢.59.elegs to the actual decision as opposed to the legal principles on which sased. However, the debate in the committee of jurists responsible for the Statute dic itesclearly.that Article 59 was not intended merely to express the principle of res. but to rule out a system of binding precedent."® Thus in one judgment the id}! “Thesabject of [Article 59] is simply to prevent legal principles accepted ourt.in-a-particular case from being binding on other States or in other dis Dielopment,p-8. Heelies on the inal report of the committee of jurists in 1920. #39 Hague Recueil (1932, 1), 141 ter observer‘ would indeed have been somewhat surprising if States had been prepared in 19200 wholly new and untried tribunal explicit authority to lay down law binding upon all tats. fs emon een Plu Upe Sei 528) CI Se. 8,7 p18 Won Cot Repo 510 corning the Land, sand and i Fron Dist C) Reports (990), 3-3 (Dis. Op of adge Shahabueen),Shahabuddeen, nt the Wor Court (1996), Bot precedent is firmy adhered to in matters of procedure. = IC} Reports(1950),89, 103, 106 (Winarski, ibyand Krylov, dissenting); Souik West Africa cases, IC} Reports (1962), 328, 345; Cameroons case, 1968), 27-8, 29-30, 37; Aerial Incident cas, ibid. (1959), 192 (Joint Dissent), South West Africa cases 2 PRELIMINARY TOPICS Opinion No. 3; i.e. the Wimbledon case, in respect of the view that the incurring of treaty obligations was not an abandonment of sovereignty. In the Reparation" case the Court relied on a pronouncement in a previous advisory opinion" for a statem of the principle of effectiveness in interpreting treaties. Such references are often a¥ matter of ‘evidence’ of the law, but a fairly substantial consistency is aimed at and the technique of distinguishing previous decisions may be employed. In the case o Interpretation of Peace Treaties'™ certain questions were submitted by the General! Assembly to the Court for an advisory opinion, The questions concerned the interpret tation of clauses in the peace treaties with Bulgaria, Hungary, and Romania, clauses relating to the settlement of disputes concerning the interpretation or execution these treaties, In fact the request arose from allegations against these three states b other parties of breaches of the provisions of the treaties on the maintenance of hut rights, a matter of substance. The Court rejected arguments to the effect that it lacked the power to answer the request for an opinion. The Court said: different from those which were before the Permanent Court of International Justice it the Eastern Carelia case! (Advisory Opinion No. 5), when that Court declined to give Opinion because it found that the quastion put to it was directly related to the main poi of a dispute actually pending between two States, so that answering the question would Wi (1969), 3 at 44, 47-9: ibid, 101-2, 121,131,138 (Ammoun, Sep. Op); ibid. 210 (Morelli, Diss. Op): ibid. 2 225, 229,231, 232-3, 236, 238 (Lachs, Diss. Op); ibid. 43~4, 247 (Sorensen, Diss. Op); Namibia Opin ‘bid. (1971), 264, 534; Case Concerning Kasikili/Sedudu Island ibid. (1999), 1073, 1076, Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (2002), paras, 68, 84, 237-8, 286-90, 292-5, 301, 304, 321. STC} Reports (1945), 182-3 B,no. Bp. 18 137 IC} Reports (1950), 65. "38 1G} Reporte (£950), 72 (his isnot the ony significant passage) See Lauterpacht, Development, pp (1952), 50-2 and the Diss Ops. Cf Joint Diss. Op, of Spender and Fitzmaurice, South West Africa cases, Reports (1962) 471-5: the Cameroons cas, iid, (1963), 35, 37-8, 62-4 (Wellington Koo, Sep. Op), 68-7 Pia 200 (Sir Perey Spender, Sep. Op); 108, 125-7 (Sir Gerald Fitzmaurice, Sep. Op) 140-1 (Morel Sep. Op), 150-} BY 950,708 (Badawi, Diss. Op) 156-8, 170 182 (Bustamante, Diss. Op), 187-91, 194-6 (Beb a Don, Diss, Op) 18 'Cne Eastern Carli case was also distinguished in the Namibia Opinion, 1 Reports (1971), 16at 23, , FMS see 139 (1923), PCI, Se. B, no. 5, ap. 27 SOURCES OF THE LAW 38(1)(@) of the Statute of the International Court is not confined to international idn8 anit the decisions of national tribunals have evidential value. Some deci- dé inditeét evidence of the practice of the state of the forum on the question Fed” other’ involve a free investigation of the point of law and consideration of ble'sources, and may result in a careful exposition of the law. Writers from com- jitisdictions make frequent reference to municipal decisions, and such use is Lin monageaphs from this source. French, German, and Italian jurists tend to case references, while Russian jurists are even more sparing. In the recent past. bbakbecn a great increase in the availability of decisions as evidence of the lav." gets ben been an important source for material on recognition of bel- senta narrow national outlook or rest on a very inadequate use ofthe sources. Adtge international tribunals sset up by agreement between a number of states, for some ad hoc purpose, ‘produce valuable pronouncements on delicate issues, much depending on the pitta and le members and thecond jons under which it does its work. Pd: Nemibig 76,1092 2 paras see Reuter, Recueild'studes en homage d Guggenheim, p 65 a pp. 673-85 Lauterpacht, 10 BY (1929), 68-95 (alsoin Coll. Papers, i.238-68); Schwarzenberge,Intrnational WAGededn 1957), 32-4 Nate the relation between English decisions and the Foreign Office Certificates: see Lyons, 28 BY [(910)240-. See aso the Lotus, PCI, Ser A no, 10, pp.23, 8-30; and the Diss. Ops. of Judges Finlay and $6 the Journal du dro international (lane) and the Annual Digest of Public International Law pow the International Law Reports. ven he Ste 7), Wace 170 he Pouce Habana (900) 15 US 67 te amen md. 6564; Ann. Digest, 13 (1946), no. 92. See 10 BY (1929), 74-5. See eg. New Jersey v. Delaware (1934),291 US 361; 29 AJ (1935), 309; Labrador lrg case(1927}43 TLR 89, 24 PRELIMINARY TOPICS between members of the federal communities involved on the basis of doctrines of international law. ‘The practice of the first of these is of importance in view of the fact that the United States has its origin in a union of independent states and this gives an international element to its internal relations. (6) Pleadings in cases before international tribunals Pleadings before the International Court contain valuable collations of material and, at the least, have value as comprehensive statements of the opinions of particular states on legal questions. 8. THE WRITINGS OF PUBLICISTS"* i ‘The Statute of the International Court includes, among the ‘subsidiary means for the determination of rules of law, ‘the teachings of the most highly qualified" publicist of the various nations’ or, in the French text, ‘la doctrine’, Once again the source onl constitutes evidence of the law, but in some subjects individual writers have had’ formative influence. ‘Thus Gidel has had some formative influence on the law of thé a. I is, however, obvious that subjective factors enter into any assessment of ju tic opinion, that individual writers reflectmational and other prejudices, and, furthe that some publicist see themselves tobe propagating new and better views rather than providing a passive appraisal ofthe law. 4 ‘Whatever the need for caution, the opinions of publicists are used widely. The lait officers’ opinions tendered confidentially to the executive in Great Britain contain erences to the views of Vattel, Calvo, Hall, and others, and the opinions themselves represent the views of experts, including Harcourt, Phillimore, and Finlay. Arbitral tribunals! and national courts! make use of the writings of jurists. Nationill courts are unfamiliar with state practice and are ready to lean on secondary sour. Superficially the International Court might seem to make little use of doctrine} and majority judgments contain few references: but this is because of the process’ 17 See also infra, pp. 58-9. 18 See Lauterpach, Development, pp. 2-5 Waldock, 106 Hague Recueil (1962, It), 95-6 3 19 This phease snot ghven a cestective fet by tribunals but authority naturally affects the weight of the evidence. 4 150 Droit international publi de a mer, 3 wis, (1932-8), His wor ie assciated with the concept ofthe contiguous zone. See also Colombos, The Infervational Law of the Sea (6th ed, 1967), translated int French, allan, Rusia, Spanish, German, Portuguese, nd Greek, 4 151 See MeNair, Opinions, i, Preface; it. 402-6. 4 i 152 particularly in the period 1793 to 944, using Grotis, Vat, and Bynkeshoek Sf treitriahnt 25 ete jdgments inthe Eichmann ase (196), 56 A (1960) 805:ILR, 36, 5, . Key (1876), 2 8x: #8 (sr PCH (6%: Publie Prosecutor vO Hee Koi 1968] AC 829. " 154 Butsee the WinBledon (1923), PCI, Set A, nop. 28 (general opinion’); German Seiler in Pla (1923), PCH, Ser. B, no. 6, p. 36 almost universal opinion: Jaworzina case (1923), PCI Ser. B, no 8, 9:3 (French txt, ane doctrine constant’), German interets in Polish Upper Silesia (1928), PCU, Se. Ay 0.6 20 (the "teachings of legal authorities" the urispredence of the principal counties) the Lotus (19 SOURCES OF THE LAW in which the‘ workings’ are set out in more detail and reflect Bctual methodgofapproach of the Court asa whole, Many references to writers are in the pleadings before the Court. figrticles produced by the International Law Commission," reports and secre- sGmemorandasprepared for the Commission,'"? Harvard Research drafts," the ofdiscussionof the Hague Codification Conference of 1930, and the reportsand itionsof thelInstitute of International Law and other expert bodies." : EQUITY IN JUDGMENTS AND ADVISORY OPINIONS OF THE INTERNATIONAL COURT iybis used here in the sense of considerations of fairness, reasonableness, and len:necessary for the sensible application of the more settled rules of law. sively.asa part of judicial reasoning. In the case on Diversion of Water from the Meuse! Judge Hudson applied the principle that equality is equity'® and stated otto (Second Phase) C) 28 (he tng of plicit), lon of Water rom the Meuse (1937), PC, Sex. AB, no. 7, pp 76-7 (Hadson; Sth West bes Reporis 1950), (MeN Peace Teniencae bi, 238 (Red) Asma, bd 335. EARepoes 1962}, 29 (Altra; Aerial Incident case IC} Reporte (195), 74 (Joi iss Lasterpact, on Keo, Spender) H See LAFICO and tie Republic of Burund, ILR 96, 279, 318-19; the Judgment of the International inthe Gobtitovo-Nagymaras Project (ungary/Slovakia), CJ Reports (1997), 39-46, 55; and the New laid Prance arbitration, Award of 30 April 1990, 20 RIAA, 215 at 252-5, generally theYearbook ofthe International Law omission AF 26 1932) Suppl. 29 (1935), Suppl, . 33 (1939), Suppl, and the Genocide cae, IC} Reports Pr Orsi, fp 88 Sethe decision ofthe New Zealand Court of Appeal in KPMG Peat Marwick v, Davison, 1LR 104,96 616 ts he Popecifineraonl Adding 4-7 Late Deopmangp21-1 Mircnand Bris Clave Arbitration, Repor of Fred K. Nem (1926) S1-72:Akehuret, 251C.Q (1976 eS; Schachter, 178 Hogue Recueil 1982, ¥), 82-90; Thirlway, 60 BY (1989), 49-62; Lowe, 12 Austral SAB; Higgins, Peace and Process (1954), 219-37 Miyost, Considerations of Equity nthe Settlement tral and Boundary Disputes (1993); Bernhardt, Encylopedia, B$1H- (837, PCH, Ser. A/B, no. 70, p72. See also the Wimbledon (1923), PCI, Set Ano. 1, p32; World Repos, 163 (onthe currency in which te damages were tobe aid). Instances of equity i abt 6 PRELIMINARY TOPICS as a corollary that a state seeking the interpretation of a treaty must itself have cont ‘th mero pletely fulfilled the obligations of that treaty. He observed that under ‘Article 38 of the§ Statute, if not independently of that Article, the Court has some freedom to considef principles of equity as part of the international law which it must apply’. ¥ In the North Sea Continental Shelf Cases? the Court had to resort to the format lation of equitable principles concerning the lateral delimitation of adjacent areata of continental shelf, as a consequence of its opinion that no rule of customary p tseaty law bound the states parties to the dispute over the seabed of the North Considerations of equity advanced by Belgium in the Barcelona Traction case (Seco Phase)" did not cause the Coxct to modify its views on the legal principles and conf siderations of policy. In the Fisheries Jurisdiction case (United Kingdom v. Iceland) thes International Court outlined the elements of an ‘equitable solution’ of the difference over fishing rights and directed the parties to negotiate accordingly. In the Burkina Faso-Mali case the Chamber of the Court applied ‘equity infra legem’ to the division ‘ofa frontier pool." Equity, in the present context, is encompassed by Article 38(1)(c) of the Statute, and™ . not by Article 38(2),'" which provides: “This provision (para. I, supra, p. 3] shall not | prejudice the power of the Court to decide a case ex aequo et bono, if the parties agrees thereto’ ; ‘This power of decision ex aequo et bono involves elements of compromise and coi? ciliation whereas equity in the English serise is applied as a part of the normal judicia] execution of the relevant provision in the ‘Treaty of Versailles. While the Court ¥ to declare on the future customs regime of the zones, the agreement contained reference to decision ex aequo et bono. Switzerland argued that the Court should wor on the basis of existing rights, and, by a technical majority including the vote ofl President, the Court agreed with the argument. The Court said: a even assuming that it were not incompatible with the Court's Statute for the Partie give the Court power to prescribe a settlement disregacding rights recognized by it and tal ing into account considerations of pure expediency only, such power, which would be of a absolutely exceptional character, could only be derived from clear and explicit provision 3 the effect, which is not to be found in the Special Agreement. 163 IC) Reports (1960), 3 at 46-52. See also ibid, 131 ff. (Sep. Op., Ammoun), 165-8 (Diss. Op, Koretshy™ 192-4 (Diss, Op, Tanaka}, 207-9 (Dis. Op, Morell, 257 (Diss Op Sorensen. . 16 Toi (970), Sat 48-50 sitence, 1919-2 265 IC) Reports 1974), 3030-5, cathe Retoh 166 Thi. (1986), 554 at 631-3 See also Schwebel (Diss. Op), Adv. Op. on Application for Review afl Judgment No, 273, (1982), 325 at 36-7 167 judge Kellogg in the Free Zones cate (1930), PC), Ser. A, 902,99. 39~ in error, See the North Sea Cases, 1C)Repors (1969), 4 4168 (1930), PCI, Ser. Ano. 24, See the earlier phase: (1929), Ser. A.no.22:and Lauterpacha, Developme ie oachir p.213-t7hand Function p38, 3 66, 8a, Ie 16 Set. Aino 24.10 Fins ef. thought otherwise, but SOURCES OF THE LAW najority.of the.Court expressed doubts as to the power of the Court to give deci- equo et bow, but it would be unwise to draw general conclusions from such bissince much depended on the nature of the special agreement. In any case the ty.ofithe Court regarded the power ta decide ex aequo et bono as distinct from notionotequity. However, the terminology of the subject is not well set- .draftsmen of the General Act of Geneva, 1928,"” seem to regard the power to Igexaequoetbono and equity as synonymous, The converse, ‘equity’ to mean set- principles of law." 10. CONSIDERATIONS OF HUMANITY y Burk rem’ to the dl bjectvely they may be related to human values already protected by pos al principles which, taken together, reveal certain criteria of public policy and he use of analogy. Such criteria have obvious connections with general prin- of laws of humanity appear in preambles to conventions," in resolutions of United Nations General Assembly,!” and also in diplomatic practice. The classical Reference is the passage from the Judgment of the International Court in the Corfu fel case," in which the Court relied on certain ‘general and well-recognized acipes, including ‘élementary considerations of humanity, even more exacting eate than in war’. In recent years the provisions of the United Nations Charter is for erations of humanity, for example in matters of racial discrimination and self- ination." ‘Aut.28, The provision was copied in other treaties i Norwegian Shipowners' claim (1922), Hague Coust Reports i. 40; RIAA , 308. BeeaPsClHague Conv. Concerning the Laws and Customs of War on Land, 1907, preamble, "ont a more plete code of the laws of war canbe drawn up, the High Contracting Parties deem it expedien'to declare ik eats not covered bythe rules adopted by them, te inhabitants and the belligerents remain under letion and governance ofthe principles of the law of nations, derived from the uses established civilized peoples, rom the laws of humanity, and from the dictates of the public conscience This is son war criminals debatedat the Pats Peace Miao te Prohibition of he Use of cer Weapon for Wer rps 24NOw 1962 Perrone. 22 nesaterentwnin peta Abtsday weer afthcpreene of nites braters. See also the Judgment in the Case of Nicaragua v. United States, ibid, (1986), 112-14; and 28 PRELIMINARY TOPICS ul. LEGITIMATE INTERESTS ness, and the like, and legitimate interests, including economi taken into account, However, legitimate interests may playa rol to existing rules and bringing about the progressive development of international lavas Recognition of legitimate interest explains the extent af acquiescence in face of claini to the continental shelf” and fishing zones.” In this type of situation itis, of course acquiescence and recognition which provide the formal bases for development of new rules. in the Fisheries case'”* the International Court did not purport to do anys thing other than apply existing rales, but it had to justify the special application of the normal rules to the Norwegian coastline. In doing so tne Court stated:!* ‘Finally, there is one consideration not to be overlooked ... that of certain economic interest peculiar to a region, the reality and importance of which are clearly evidenced by d loig usage’. Moreover, the Court referred to traditional fishing rights buttressed Bf ‘the vital needs of the population’ in determining particular base Judge McNair, dissenting in the Fisheries case," expressed disquiet: Inmy opinion the manipulation ofthe limits of territorial waters for the purpose of protes ing economic and other social interests has no justification in law; moreover, the approb; tion of such a practice would have a dangerous tendency in thet it would encourage Stales to adopt a subjective appreciation of their rights instead of conforming to a common inte national standard. ‘This caution is no doubt justified, but the law is inevitably bound up with the accom modation of the different interests of states, and the rules often require an element appreciation, Examples of such rules are those concerning the invalidity of treaties, excuses for delictual conduct," and the various compromises in conventions bet the standard of civilization and the necessities of war." NOTE ON COMITY International comity, comitas gentium, to morality but to be distinguished from it nevertheless. Neighbourliness, mutual, 2 See infra p. 205A q 298 See infra. 198, 19 See infra, pp 76. 190 IC} Reports (1951), 133. See also at p.128:"Tn these barren regions the inhabitants ofthe coastal zone.

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