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    TIONAL LAW 40 [AN INTRODUCTION TO PUBLIC INTERNA’ 5 obligation under the Treat, at peace with Germany, amounted to a breach of Germany's Y of ace wil h Versailles. ry international law, the ty Where a treaty has identical rules to those of custome y ea ere a treaty has a Ke contrary, together they Would strengin’ hi ont ‘ 3 ; Sn does not override the customary law, but. 9” tT Case (eri; the United state 2 particular rule of international IW. 1 toe re ciyded “disputes arising yt s Sen eae Sea ts jor ‘diction under the “optional clause” (Art, 6G) i ” ‘ourt’s a multilateral treaty” from the Co J from considering whether the Unj rt is precluded A A of the Statute of the Court), tno United Nations Charter, and by virtue Of this trea States had infringed Art. 2(4) 0! tomary rule prohibiting the use ce is superseded bl nee i ed that “there are no (Charter Provision) We Upited States contention and observ’ na ere aS 20 ron for holding that when that the customary international lay ‘ 1s" the former so : pied 1a of treaty law, the ites eT he Court ruled that the United pares) ‘optional clause» no further oxistents eral conventions, does not affect the Court's juris« ction in deciding techies ‘Died States stands in violation of the equivalent customary rule prohibiting whether the s the use of force.°¢ ) IV. THE GENERAL PRINCIPLES OF LAW*’—/ as() © vw By “ rinciples of law recognised by civilised nations” in Art. 38(1) (©) of Pe ee ere FIRE Trermstonal Court of Justice is very wide and vague! Ieincludes, though ‘,) Phot confined to, the principles of private law administered by municipal courts, as applicable “to international relations,zT he private law principles, however, are not imported “lock, stock and barrel” in the intersiational law but, as Judge McNair has observed, “the true view of the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy ©and principles rather than as directly importing these rules and institutions”. S9°The phrase applies to fundamental principles of justice which have been accepted and civilised nations generally. /The Court can have recourse to this source if there is no convention or any clear rule of customary law in a case before it. This is also considered necessary '0 avoid any situation of non-liguer, C., the possibili i ould be unable 85 Op. cit, 23, % Ibid. at p. 95. *7 On the subject, f 35,1951: Cheng one 7 otal principles of law as a subject of international codification, WV CU & Sons Ltd,, London), 1953, Wee of Law Applied by International Courts and Tribunals on Greens ee NEW Yoo, 1964, Ch 12; Co ee Suet of International Law (obs (Stevens & ‘W. Jenks, The Py ional Adjudicae! Seed eae ig Ch CH: Alnor Te ea Pacts law 106 Hagi 19s sdom (1973), p. 3 8; H. Waldock, General eourse on public intemai®™ . Schlesinger, 51 AJIL 734-15: e (1950) Icy Rep, p. 148, : =: ue Recueil 54 (1962 11 5 sR * See the Status of South West Africa ee i Scanned with CamScanner 41 SOURCES OF MODERN INTERNATIONAL LAW decide a case because of a “gap” in t ts? An intemational judicial body is under —2sum to adjudicate and should not retrain from diving judgment on the ground tha 2 ly lent or obscure, F ee " nee there is a difficulty. in identifying and eval role of these principles Aff vi since Art. 38(I)(c) of the Statute does not specif 0 geval psn les of international law which are recognised by ed nations as a part of customary. an f to general principles of law in the most general sense i 2 principles ol private ntemationa jaw found in most of the legal systems. According to Mr. Root (USA) and Lord Phillimore (Great Britain), who drafted this provision, “the general principles referred to ... were those which were accepted by all nations in foro demestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata, etc". bn! The veryationsle of itis that a principle which has been accepted by civilised legal systems fa/e ow! generally would be so reasonable as to be considered necessary for the maintenance e under any legal system. \Certain principles which qualify this criterion and have become part and parcel of the moder international law, such as prescription, res judicata, estoppel, substitution ei. are drawn from Roman private law. However, the practice of international tribunals, ‘Tartcularly that of Permanent Court of Intemational Justice (PCLD).and the International Court, of Justice (ICD), has not ihrown any light on the processes for reaching to the conclusion that a particular rule is_a rule of international law “recognised by civilised nations”. Poes it mean then that before a principle is accepted as a “general principle”, it should be accépted in each of the legal systems, bordering at around 200 presently? The answer seems to be that certain legal principles are common to all the systems, which can be introduced in international law. The retention of the phrase “civilised” has, however, become controversial, particularly in the context that present corpus of international law is predominantly European and the new nations” Sensitivities towards it. But the practice of the Court indicates that the phrase relates to the general principles in the legal systems of independent nations, leaving out the tribal law which may not be sufficiently developed in the modern sense of the term, Cordyyrred There has also been a controversy about the basis as well as acceptance of these principles (E>: Se Source of international law. Some jurists, like Verdross, opine that Art. 38(1)(c) has the . effect of incorporating natural law in international law and any rule of international law if T°¢ “¢ in conflict with natural Jaw, is invalid, Fitzmaurice also states that this provision involves &**"*? necessary principles of natural law, “at any rate in that aspect of it that relates to these princi ‘0 bea formal,not merely a material source of law”, and cites many examples including the — ee ® ‘Such a situation could have arisen in the Nu where the Court avoided the South Pacific and that in that there were no sufficientl pp. 253 and 457, n-against testing in France also declared could have prevented 'mospherie nuclear tests. Subsequently, in 1983, France indulged Again it started these tests (underground) in the South Pacific in lared to stop these tests on Jan, 30, 1996, which, The Times of India, Jan. 31, 1996, p.1 is, Procés Verbaux of the Proceedings of the Committee (1920), p. 335. ‘hat by “general principles” he meant “Maxims of law". Ibid, Harts, op. eit, ly developed principles of general international law that it from carrying out a further series of at in such tests in its “national interest” Sept. 1995, against stiff opposition world-wide. It decl otherwise, were to be conducted unto May 1996, See PCH, Advisory Committee of Jur Lord Phillimore later said 2,p. 50, Scanned with CamScanner B _ LAW 2 AN INTRODUCTION TO PUBLIC INTERNATIONAL L ermal law to be excused from performing g out of a situation brought one that a State cannot put the deficiencies of its int the validity of this s its international obligations or impossibility of perform: about by the State itself.*!On the other hand since, aecarding to them onsen that para. (c) of Art. 38(1) adds nothin; custom and treaties. The main apprehen: international law through nical ae rinciples are already there as a pa ees ais by Waldock, who basing his observ: (PCI and ICJ) opines: i [court treats the “com (), very much as a single corpus co eat ofthe law applied by the court falls wi clement which enables the court to give greater completeness g new to the exi Shen s seems to be development of nsion of positivis aemead of exclusively by States. Others hold that f international law. The correct position, however, rns on the practice of the World Cour, mon law” whieh it is authorised to apply under Art. 38, paras. (b) and il ‘of law. In this corpus customary law enormously predominates ithin it, But para. (c) adds to this corpus a flexible s to customary law and in some degree to extend it. jte these controversies, the preponderant opinion is that general principles recognised ination tribunals constitute an inexhaustible reservoir of principles, which an international tribunal is authorised by Art. 38 to apply in an international dispute. The international Court (PCIJ and ICJ), while relying on this source, have frequently either ‘Teferred to the customary law or left it ambiguous as to whether they were speaking of general principles of national or international_law) ; ->P __ Inthe Charzow Factory case, Germanbrought a claim against Roland for the seizure of two companies in Upper Silesia, contrary to Poland’s international obligation{The Court laid down that a party cannot take advantage of its own wrong, as a principle “generally accepted in the jorisprudenoe oT Talzenational mbites ton, as well as by municipal courts”) Ata later stage of the same case, the Court observed that “it is a general conception of law that every violation of an engagement involves an obligation to make reparation”™ and spoke of restitution and damages (municipal law concepts). In the Eastern Carelia case,® the Court was asked for an advisory opinion on the competence of the Council of the League of Nations to adjudicate in a dispute involving a non-member of the League (USSR), which refused to accept the competency of the Council in the matter. The Court accepted the “independence of States” as a “fundamental Principle of international law” and ruled that no State, without its consent, could be compelled to submit its dispute for pacific settlement, In the Corfu Channel case, Britain claimed against Albania.for the substantial damage suffered by two of its warships while passing through the Corfu Channel which, at the time, was heavily mined. The Court took into account the circumstantial evidence to arrive at a conclusion. It stated that “this indirect evidence is admit in all systems of law, and its use is recognised by international decisions”. It held Albani? 8! G Fitzmaurice, Symbolae Veizij! (1958), p. 153, at pp. 154-165; Harris, op. cit. 2, p. 50. © H, Waldock, General course on public international In lague Recuel $4 ap. 68 (19620) pe ec pea international law, 106, Hague Recueil 54 at p. 68 (1962. © PCI Rep,, Series A, No. 17, p. 29 (1928). ® PCI Rep., Series B, No. 5, p. 27 (1923). © (1949) ICI Rep, p. 4, at p. 18 Scanned with CamScanner 43 SOURCES OF MODERN INTERNATIONAL LAW fered by its warships by Albania’s violation ingdom, for the loss s lat mation ations to df ¢ presence of mines inthe Corfu al obligations to dnforny of the presence of mines int of its internat ig \ Se Land well ng in p ‘ognised principles, namel of humanity. even, more exac war; the principle of the freedom of maritime ST calion: and every State’s obligation not to allow. knowingly. its territory _to be used corres contrary to the rights of other States".7_| In ing amongst the municipal systems, In spite of the differences ex: have been transported under the rubric of “general principles” and became the endered by the Court. The International Court of Justice, while rendering the advisory opinion fal ‘i the Administrative Tribunal case referred to the “well-established and generally recognised @ of law" that “a judgment rendered by a judicial body is res judicata and has binding eee the eaties to the dispute’ zi In the Nuclear Tests cases,” where Australia and New Zealand sought injunction against French nuclear testing in the South Pacific, the Court Geclined t0 adjudicate “without object”, particularly where the object of the claim is achieved Similarly, in the Northern Cameroons case, the Court was clearly applying fe inherent in the judicial function, in refusing to adjudicate over a dispute, ination nel “on certain certain principles sof judgments . hid a general princi the substance of which had disappeared with Cameroon's independence by the tet of Trusteeship Agreement. Cameroon, after attaining independence, sought a declaration from the Court thet Britain failed to carry out its obligations under the Trusteeship Agreement under it had administered the territory of Cameroon. The Court observed that the “Court's judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations. No judement on the merits in this case could satisfy these essentials of judicial function”.’ In the Mavrommatis Palestine Concessions case,” the Court referred to the “general principle: Jabal, of subrogation” and held that the concessions made by the Ottoman Empire in favour of Mavrommatis were enforceable against the United Kingdom, as being the successor State to Ottoman Empire in Palestine. Likewise, the rule of estoppel of private law became the basis of the Court's judgments Zstef/"” the Eastern Greenland case,’ and Temple of Preah Vihear case.? In the former case, the scceplance of numerous treaties by Norway, containing reference of Danish sovereignty over Esstem Greenland debarred Norway contesting Danish sovereignij(An the later case, the Conduct) __) of Thailand (erstwhile Sia al acl of Thailand cepting the map prepared by <> stwhile Siam) amounted to its acquiescence by French authorities in 1908 (the map was not approved by the Joint Commission), showing the “vee Temple area as part of Indo-China, and ordering for 15 more copies/Further, the subsequent visit by the Siamese Prince in_1930, to the temple site, where he was accorded welcome of 4 foreign dignitary at which the French flag was flown, precluded Thailand to contest the © Ibid. at p. 22. 6 (1954) ICI Rep,, p. 47, at p. 53 yo (1274) ICI Rep., p. 253 (Australia v. France), jr (1963) ICI Rep., p. 15, at pp. 33-34, : 72 PCW Rep., Series A, No. 2, p. 28 (1924). 3) PCU Rep., Series A/B, No. 53, p. 69 (1933). (1962) ICI Rep., p. 6, ; (1974) ICJ Rep., p. 457 (New Zealand v. France). Scanned with CamScanner o(o) decided on the basis of ex aequo et bono. 44 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW over the Temple area. However, the doctrine of estoppel was helg sovereignty of Cambo: ° ; as he “fo beirapplcabe in Serban aed Bras Loans case as there was no denial of obliga’ by the partes to pay the French bond holders, only the payment offered by them was less than what_was-due to the bond holders. he doctrine of estoppel, though widely used by the Court, ; “Ucgree of precision. Whereas in the above mentioned cases, it was applied when a State hy “slept over its rights”, estoppel may also arise out of some positive activity by a State why as not been defined with any SgBENIS That accepts or acknowledges certain situation, and in consequence of tha, it he detrimentally changed its position.”5 The doctrine has become a part of the general Fequirement that States should act in goodtith. J Re / Laut Ete concept of “equity” similarly finds a place of pride in the jurisprudence of intemationa| wd sty as developed by the Court. The duty of States to act in good faith is a part of the wider concept of equity. In the Diversion of Water from the Meuse case," Judge Hudson in his separate opinion stated that “what are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals”, In this case, the Netherlands claimed that Belgium had violate its treaty obligation by building canals that altered the flow of water in the River Meuse Judge Hudson opined that the Netherlands had lost its right to object to Belgium action because it acted similarly earlier. It is an important principle of equity that where two parties have assumed similar obligation, the continuing non-performance by one precludes it to contest the other's non-performance.(Further, he observed that the rule of “equity” as part of Art 38(1) (¢) is part of law, i.e., a Tegal principle, whose scope is in no way restricted by Art. ae eee ty 38(2), conferring special power upon the court “to decide a case ex aequo ef bond, if the Parties agree thereto" which may not be confined to the strict rules of international Taw.” Accordingly, a distinction is possible between a decision based on rule of equity and the one 78 Equity can auger, but does not alter the application “ of a tule of intemational Taw. In recent years, the International Court of Justice has increasingly referred to “equity” in its pronouncements, In the Gulf of Maine case, it stated that the concepts of acquiescence and +-¢stoppel in international law “follow from the fundamental principles of goodfaith and equity’.” (Un the North Sea Continental Shelf cases, the Court ejected the Netherlands and Denmark's Contention for the application of the “equidistance” rule as the only appropriate, principle for the delimitation of their continental shelf with the Federal Republic of Germany. In the Court's view that would lead to unreasonable Consequences because of the peculiar coastline of Germany ‘hich is concave in nature. It emphasised on the rule of equity to sehieve an “equitable resul’ which the court followed with great conviction in subsequent maritime boundary cases, Su * PCH Rep,, Series A, Nos. 20-21 . . 20-21, pp. 38-39 (1929), ye Cf North Sea Cominental Shelf cases, op. ct. 21 i PCI Rep., Series A/B, No. 70 (1937), ” Ibid. at pp. 76-77. * Cf North Sea Continental Shelf cases, of Ses, op. cit. 21, at p. 48, ” (1984) ICJ Rep., p. 246, at p. 305. , Scanned with CamScanner SOURCES OF MODERN INTERNATIONAL LAW 45 as in Tunisia v. Libya’ and Libya v. Maltas' It was also followed in Guinea-Guinea Bissau Arbitration.*(In the Fisheries Jurisdiction case, to reach a decision, the Court relied on an “equitable solution derived from the jaw". The concept of ‘equity’ has also found its place in the United Nations documents and General Assembly resolutions, such as the resolution on the New International Economic Order, law-making treaties, for example, 1982 Law of the Sea Convention, particularly Arts. 59, 74 and 140 bring in this concep But the application of the principle of ‘equity’ is generally tinted with an element of subjectivity, which brings in uncertainty in its emergence or crystallisation as a new rule of international law, Its claim to the title of “general principle”, thus, is not always accepted. In South-West Africa cases (II Phase),*° the maxim of actio popularis was not accepted as a general principle. Similarly, in Texaco case*” the French law of administrative contracts was not found of wider acceptance. [The Court is not always confined to the drawing of analogies from municipal law under the rubric of “general principles”, but sometime resorts to the rules and institutions, which are if Spain, against Spain who declared it bankrupt and took certain other measures injurious to tre company. The Court, applying the municipal law doctrine of “corporate personally”, held that the alleged wrongful acts were committed agaipst the company and though shareholders suffered indirectly, Belgium had-no)cause of action/ The corporate personality is distinct from shareholders under municipal law and separation of property rights was an important manifestation of this corporate personality. The court observed: In this field international law is called upon to recognise institutions of municipal law that have 2n important and extensive role in the international field ... All it means is that international law has had to recognise the corporate entity as an institution created by States in a domain essentially within their domestic jurisdiction. This, in turn, requires that, whenever legal issues arise concerning, the right of States with regard to the treatment of companies and shareholders, as to which international law has not established its own rules, it has to refer to the relevant rules of municipal law .. If the Court were to decide the case in disregard of the relevant institutions of municipal Jaw it would ... invite serious legal difficulties ....for there are no corresponding institutions of % (1982) ICI Rep. p. 18, at p, 59, (1985) ICJ Rep., p. 13, at p. 57. See also the Land, Island and Salvador v. Honduras) (1992) ICJ Rep., p, 376 77 ILR 635 (1985), Guinea Bissau and Sierra Li ‘ther si i eos (BED, ot cone were on either sides of Guinea. 1974 Charter on the Economic Rights and Duties in its Preamble states, “mindful of the need to establish 2 just and equitable economic and social order”, GA Res. 328] (XXIX) of Dec. 12, 1974. “Equity” has been i % ata “eauiy” S been invoked here as a part of “distributive justice”, consonant to the needs of developing 86 (1966) ICJ Rep., p. 6. 87 Texaco v, Libya, 17 ILR, p. 389 (1977); 17 ILM , > Pe s 1 "8 (1970) ICI Rep., p. 3. > eae Maritime Boundary Dispute case (EL ” B " as Scanned with CamScanner 46 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW ~ take cognizance mal law to which the Court could resort... the Court has ... not only (0 si internat of municipal law but also to refer to it.” ; reeOrnisel jurisprudence Broadly speaking, the general principles, which have been recognised in the Jurispradenee of judgments are: goodfaith, international responsibility of State, the Court as reflected in itutic : i os judi el, substit prescription, right of the Court to determine its own jurisdiction, res judicata, estoppel, substitution, and the rule of natural justice, i.c., both parties must be heard before the judgment i rendered The main areas where these principles have pertained ae the general principles of legal lability, administration of international justice, procedure, evidence or other aspects of judicial systems, and the Court is reluctant to import substantive doctrines or institutions of national law into intemational law. The resort to “general principles” is, thus, not new. On the other hand, frequent resort by the Court to this source indicates the long established practice of international tribunals, which has prompted a suggestion that they should be codified.” But the opinion has also been expressed that Art. 38(I) (c) of the Statute relating to “general principles” has sounded “death. k sitivism,." which, however, may not be absolutely true in close analysis because by being common principles in the national legal systems, they reflect a consensus of nations. However, there is no denial of the fact that this provision has introduced dynamic element in international jurisprudence and ensured the creative function of the international tribunal. V. JUDICIAL DECISIONS Anticle 38(1) (4) of the Statute of the Court puts “judicial decisions ... as subsidfary means for the determination of rules of law”, which invariably refers to international judicial decisions, (State judicial decisions and decisions of international arbitral tribunal They are called “subsidiary means” because in the normal conduct of international relations, it is thé State practice which creates the rules and which is the Primary means of determination of those rules All jough in theory the decisions do not con: tute the Vormah source OT pe bor Pen they play a larger part in the development of international law, particularly when the State practice is either ambiguous, non-existent, Sparse or contradictory, the Court gets involved in determining the rules of law to decide a legal issue and in the Process creates new rules. In such a situation, the Court applies existing rules either directly or by analogy. More extensive is the analogy ical tribunal existing at present is the International Court of Justice ; In 1946. the Permanent Court of Intemational Justice (PCI), created ‘'s adopted by the ICJ. The PCL and ICJ together have render! ——_ jp bid. pp. 33-34 (paras. 38 and 50) B. Cheng, op. eit. $7 in IV CLP 53 (1951), °" JG Starke, op.cit. 7, p. 35, . — Scanned with CamScanner —S- — SOURCES OF MODERN INTERNATIONAL LAW 47 ‘ons and advisory opinigns which have enriched the international many valuable dec jurisprudence. ‘Article 38(1) (d) of the Statute © iecision of the Court hi provides that the “deci jn respect ofthat particular ca value, It also relegates the judi no bing “a limitation in the adoption of judgment Aput in practice >the decisions of the Court have attained ‘he highest authority, even though the are only persuasive in nature, They play a formidable pati in the development of international law. This is quite evident from the pleadings presented efor the Court by State partis t a case where the decisions ofthe Court are frequently referred. (in the Aerial Incidents.case,?* ‘which arose out of the shooting down of an Israeli civil aircraft : aircraft strayed into the Bulgarian air space, Israel relied bya Bulgarian fighter aircraft when the heavily, in support of its claim, on the authority mainly drawn from previous decisions of the PCW and IC} in its written pleadings submitted before the Court. The Court, however, did not decide the case for want of its jurisdiction. ‘The Court has equally been making use of its prior decisions while deciding a case notwithstanding Art. 59. It has quite often made use of those decisions either by following them /- “distinguishing” them. In Peace Treaties case,” the Court was asked to give advisory opinion arbitral tribunals to look into the alleged violations ing dispute over the issue of the constitution tribun of human rights under the Peace Treaties with Bulgaria, Hungary and Rumania within the terms of those treaties, The three States did not cooperate in constituting the arbiffal tribunals, nor did they participate in the proceedings of the Court, by arguing that the Court should adhere to the ruling of the PCI in Eastern Carelia case™ as they have not consented to the Court's v principle laid down in Eastern Carelia case that jurisdiction. The Court, while upholding the 2 State could not be forced to submit its disputes to atbitation or judicial satlement without = >" tates, by distinguishing the two cases.|Whereas”> set its consent, rejected the objection of these Si the Eastern Carelia case was related to the investigation of the merits of a dispute, the case before the Court was solely concerned with the procedure for settlement, i.¢., the formation of the tribunals, and not with the substance of the jute. iD In spite of its protestations that it is not a legislative orgafyand its duty is “to apply the law as it finds it, not to make it”2® the Court’s judgments have sometimes resulted in the formulation of altogether the new rules of international law. In the Anglo-Nérwegian Fisheries case, the Court created a new rule (the ight baseline method) for the delimitation of maritime boundaries in those parts of the world where unusual economic and geographical factors are This means that the judgments of the Court have.no precedential ->»** he decisigns to the status of a “subsidiary means” by imposing 7 7 tubject to the provision of Art. 59 of the Statute which . 57 ing force except between the parties and ro :+-aing Ose F- Mendy sesloy present. In the Reparation case,’” the Court created the legal personality for international [ ‘ons by inferring from the provisions of the United Nations Charter that to carry out inder its Charter, it must be endowed organisat its functions effectively assigned to the United Nati % (1959) CI Rep. p. 127. 3 (1950) ICJ Rep., p. 65. % Op. cit. 65. 95 South-West Africa case (Il Phase), op.cit. 86, at p. 48 % See op.cit. 15. eee See opi. 30. Scanned with CamScanner a { Kequo fh 2x (2I— Ge 4 ceeiden caaet gy) ph foaties oe veuh ord 48 ‘de : fv iftinoiyftion TO PUBLIC INTERNATIONAL LAW ional law.)Similarly, in the att with a personality to sue and be sued under the intemationa a ne ae ec i 98 the Court, in derogation of the rule of consensus ca " ait oF, Somes nore ae vvultilateral treaty, if it is in consonance with the object s to a creating role of the Court, Judge Azevedo aptly Femarkeg State to make reserv’ (@)purpose of the treaty.\About the law: c 2 a ij Oo the dylan. caso” tat “the decision in a particular case has deep EPCOS ea 7 cision act re value” f e that decision acquire qué slative value”, in spite views which have been confirmed by that de or au”, in of the legal principle that the decision is binding only between ne pe ies fe a Particular cae a ibe ccisions of the Court which have great evidentiary and persuasive vajgg see ee ane see ating judges also provide direction tothe ful growth of intematgn| but the opinions of the dissenting judas provide directio ten law, whic manifest in State practice, and indicate the stage of ene or an emerging ©

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