British Institute of International and Comparative Law

Equity and General Principles of Law

Author(s): Michael Akehurst
Reviewed work(s):
Source: The International and Comparative Law Quarterly, Vol. 25, No. 4 (Oct., 1976), pp. 801-
825
Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
Stable URL: http://www.jstor.org/stable/758525 .
Accessed: 01/03/2012 18:41
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
Cambridge University Press and British Institute of International and Comparative Law are collaborating with
JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.
http://www.jstor.org
EQUITY
AND GENERAL PRINCIPLES OF LAW
By
MICHAEL AKEHURST
*
THERE are
many
cases in which international tribunals have
applied
equity.
However,
some of these cases need to be
distinguished
at the
outset.
In the first
place,
international tribunals have often been authorised
by treaty
to
apply equity.
Such cases are
obviously
no
authority
for
cases where a similar authorisation has not been
given
to the
tribunals,?
and will not be discussed in the
present
article.2
It is also
necessary
to exclude cases in which an
equitable principle
is
incorporated
in a rule derived from some other source of inter-
national
law,
such as
custom;
when a tribunal
applies
such a rule
it is
really applying
a rule of
customary
law,3
and its
judgment
cannot
be used as a
precedent
for
applying equitable principles
which are not
incorporated
in
customary
law.4
The three
functions of equity
Despite
occasional statements to the
contrary,5
the absence of an
express
authorisation to
apply equity
does not
necessarily
mean that
an international tribunal is forbidden to
apply equity. However, in
order to assess how far a tribunal can
go
in
applying equity
without
being specifically
authorised to do
so,
it is
necessary
to
begin by
classifying
the various functions which
equity
can
perform.
Equity
can
perform
three functions-it can be used to
adapt
the
law to the facts of individual cases
(equity infra legem);
it can be used
to fill
gaps
in the law
(equity praeter legem);
and it can be used as a
reason for
refusing
to
apply unjust
laws
(equity
contra
legem).
These
*
Reader in
Law,
Keele
University.
1
Except
where
they
contain dicta that a similar decision could have been reached
by
a tribunal not authorised to
apply equity;
but such dicta are seldom found in
practice.
2
They
are discussed at
length
in
Jenks,
The
Prospects of
International
Adjudication
(1964) Chap.
7.
3
As in the North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3, 33, 35-36, 46,
47, 136, 140-142,
212 et
seq.
See also the Fisheries Jurisdiction case
[1974]
ibid.
3,
33. Cases
holding
that
equitable compensation
must be
paid
for
expropriation
fall
into the same
category:
Chorz6w
Factory
case
(1928) P.C.I.J.,
Series
A,
No.
17,
p. 46; Goldenberg
case
(1928)
2 R.I.A.A.
903,
909.
4
Except
where
they
contain dicta about the
applicability
of
equitable principles
which are not
incorporated
in
customary
law.
5
e.g. by Judge Koretsky
in the North Sea Continental
Shelf cases
[1969] I.C.J.Rep.
3,
165-167. See also the case cited
by Strupp (1939)
33
Recueil
des cours
357, 386-387.
801
802 International
and
Comparative
Law
Quarterly [VOL.
25
functions
merge
into one another to some
extent;
in
particular, equity
infra legem
can be used in a wide number of
situations,
ranging
from
cases which differ
only slightly
from a strict
application
of the letter
of the
law,
through
cases where the
spirit
of the law is made to
prevail
over its letter,
to cases where
equitable exceptions
are inferred into a
rule of law.
Consequently,
a
judge
who wishes not to
apply
a rule
of law can
say
that
application
of the letter of the law would be
contrary
to its
spirit
or that the
legislator
must have intended that
there should be
exceptions
to the letter of the law
(equity infra legem),
or that the law does not
apply
to the case and that the
judge
can fill
the
resulting gap by
recourse to
equity (equity praeter legem)
or that the
law is
unjust
and should not be
applied (equity
contra
legem).
Not
surprisingly,
therefore,
some
(but
not
all)
of the decisions of inter-
national tribunals are hard to fit into
any
one of the three classifications.
Application of equity infra legem
All authors admit that an international tribunal can
apply equity
infra legem,
even if it is not
expressly
authorised to do
so,
although
they
differ as to the exact
meaning
of
equity infra legem (especially
the
question
whether it includes
inferring equitable exceptions
into
legal rules).6
In
many cases
where it is
impossible
to
quantify
the
damages pre-
cisely,
international tribunals have made an
equitable
estimate of the
compensation
to which the claimant is entitled.' The role
played by
equity
in these cases is a modest one. It is not used to determine
entitlement to relief
8
or remoteness of
damage,9
but
only
to calculate
the measure of
damages.'0
If there is a rule of law
entitling
the claimant
to
compensation
for
pain
and
suffering (to
take one
example),
the
6
Degan, L'dquite
et le droit international
(1970) pp.
26-29.
Cf.
the somewhat
contradictory
remarks of
Judge
Ammoun in the North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3,
132 et
seq.,
and in the Barcelona Traction case
[1970]
ibid.
3,
333.
7 Degan, op. cit., supra,
n.
6, pp.
158 et
seq.; Rousseau,
Droit international
public
(1970)
Vol.
1, p. 406; Akehurst,
The Law
Governing Employment
in International
Organisations (1967) pp. 85-88;
2 R.I.A.A.
726, 818-819, 1032-1033, 1046,
1073-
1076, 1139, 1157-1158;
5 R.I.A.A.
162, 290;
Dundonald case
(1873),
de La Pradelle
and Politis 3
Recueil
des
arbitrages
internationaux
(1954), 441,
451.
But there are limits to this
procedure.
A tribunal cannot award a
lump
sum for a
mass of different claims without the consent of the
parties: Lighthouses
case
(1956)
12
R.I.A.A. 155,
187-188.
Similarly,
when no evidence whatever of the extent of
the loss is
produced, equity
does not allow the award of
damages;
Maninat case
(1905)
10 R.I.A.A.
55,
82.
8
Except
in some dubious decisions of the
O.E.E.C./O.E.C.D. Appeals
Board:
Akehurst, op. cit., supra,
n.
7, p.
87.
9 With the
exceptions
of the
Yuille, Shortridge
case
(1861),
de La Pradelle and
Politis 2
Recueil
des
arbitrages
internationaux
(1957),
2nd
ed., 108-109,
and the Lacaze
case
(1864)
ibid. 298.
to For the
meanings
of these
terms,
see P. M.
North,
Cheshire's Private Inter-
national
Law,
9th ed.
(1974), pp.
700 et
seq.
OCT.
1976] Equity
and General
Principles of
Law 803
law
obviously
does not intend the claimant to be
deprived
of
compen-
sation
solely
because
damages
for
pain
and
suffering
cannot be
calculated with the same
degree
of
precision
as loss of
earnings; by
implication,
therefore,
the law itself
requires
the tribunal to make an
equitable
estimate of the
compensation
due.
Similar decisions have been reached
concerning
interest and costs.
The
right
to interest is not based on
equity
but
(usually)
on a
general
principle
of
law; however,
it is within the tribunal's discretion to fix
what it
regards
as a
fair
rate of
interest." Similarly,
a tribunal's
power
to award costs is not derived from
equity,
but a tribunal has a
discretion to make what it
regards
as a
fair
order
concerning costs.
2
In the British Guiana-Brazil
Boundary
arbitration,
the arbitrator
was
required
to determine the
boundary
between British Guiana and
Brazil. He found that there was insufficient evidence to decide the
controversy
over certain
parts
of the
disputed territory,
and
accepted
as a rule of
necessity
that he should make the division,
taking
account
of lines traced
by
nature and
giving preference
to the line which,
being
best defined
throughout
its entire
course,
afforded the most
equitable partition
of the
disputed territory.13
Here
again,
as in the
cases
concerning damages,
interest and
costs,
recourse to
equity
was
essential in order to enable the arbitrator to
discharge
his
legal
func-
tions;
if he had not relied on
equity,
he would have been unable to
determine the
boundary,
as the arbitration
agreement required
him
to do.
A somewhat bolder use of
equity
was advocated in the
Romberg
case,
where the tribunal
proclaimed
its
right
to decide
by "taking
account of what it deems
just
and
equitable
rather than
minutely
observing legal procedures
and
formalities" 14; however,
the
legal
formalities which were
disregarded
were rules of
municipal
law,
not
rules of international law.'l
Finally,
international tribunals have sometimes claimed the
power
to use
equity
to
"temperer
la
rigueur
excessive du droit
positif" 16;
equity
can be invoked "comme
principe
. . . correctif dans les cas
exceptionnels oi- l'application
du droit strict
ambnerait
a des resultats
6videmment
injustes."
17
11
Wimbledon case
(1923) P.C.I.J.,
Series
A,
No.
1, p. 32; Yuille, Shortridge
case
(cited supra,
h.
9).
12
Tinoco claims
(1923)
1 R.I.A.A.
371, 399;
Radio
Corporation of
America case
(1935)
3 R.I.A.A.
1623,
1636.
13 11
R.I.A.A. 21.
See also the Rann
of
Kutch arbitration
(1968)
7 International
Legal
Materials
633,
692.
14
De La Pradelle and Politis 2
Recueil
des
arbitrages
internationaux
(1957),
2nd
ed., 564,
565.
15
Ibid. See also the
Shufeldt
case
(1930)
2
R.I.A.A. 1081,
1097-1098.
16
Direction
gendrale
des
ports v. Schwartz
(1927)
7 Recueil des decisions des
tribunaux arbitraux mixtes 744.
17
Pinson case
(1928)
5 R.I.A.A.
327,
355.
804 International and
Comparative
Law
Quarterly [VOL.
25
This
process
is akin to the
technique
of
distinguishing practised
by judges
in common law
countries;
a rule of
customary
law,
which
was stated in over-wide terms on
previous
occasions,
is held not to
apply
to a different factual situation. Thus in the
Lighthouse
case,
the Permanent Court of Arbitration held that
justice
should be taken
into account as a
ground
for
distinguishing
between different
types
of situation which could occur in the context of State
succession.18
In the Barcelona Traction
case,
Judge
Fitzmaurice took
justice
into
account as a
ground
for
limiting
the
scope
of the
continuity
rule
applicable
to the
nationality
of claims.'9 He also
suggested
that
equity
required
that
exceptions
should be made to the
principle
that the
legal personality
of a
company
is distinct from that of its
shareholders.20
Equity
has sometimes been taken into account to
distinguish
the
rules about
compensation
which would
normally
have been
applicable.
The
poverty
of the defendant State was used as an
argument
for
reducing
the
compensation payable
in the
Spadafora case,21
but the
Permanent Court decided otherwise in the Serbian Loans case.22
In the British Claims in
Spanish
Morocco case the arbitrator held that
Spain's prolonged occupation
of British
property
would
normally
have
obliged Spain
to
pay
rent,
but that in
equity
it was
unnecessary
to order
payment
of rent because the
capital
value of the
property
had
appreciated
as a result of
Spain's
action in
establishing
her
protectorate
in
Morocco.23
In Wilhelm v.
Bundeskartellamt,
the Court of Justice of the Euro-
pean
Communities found that there was
nothing
in the relevant EEC
regulations
which
prevented
the Commission
imposing
a fine on an
undertaking
which had
already
been fined
by
national
authorities,
but held that
equity required
the Commission to take account of the
size of the national fine when
calculating
the amount of its own fine.24
Such
cases,
in which
equitable exceptions
are inferred into written
rules of
law, are, however,
rare. International administrative tribunals
have
occasionally
inferred
equitable exceptions
into the rules in their
Statu'tes
limiting
their
jurisdiction
or
imposing
time limits for the
18
(1956)
12 R.I.A.A.
161,
199.
19
[1970] I.C.J.Rep. 3,
100-103.
20 Ibid.
pp. 84-86;
see also
Judge Jessup,
ibid.
pp.
191-192. The Court found
Belgium's equitable arguments unconvincing,
but said
nothing
about the
applicability
of
equity
in
general:
ibid.
pp.
48-50.
21
(1904)
11 R.I.A.A. 9-10.
22
(1929)
Series
A,
No.
20, p.
39.
23
2 R.I.A.A.
615,
682.
24
[1969] Recueil
de la
jurisprudence
de la C.J.C.E. 16.
OCT.
1976] Equity
and General
Principles of
Law 805
institution of
proceedings 25;
but there are also cases which go the
other
way, especially
in more recent
years.26
Application of equity praeter legem
Writers
disagree
as to whether an international tribunal can fill
gaps
in
the law
by
recourse to
equity
in the absence of
express
authorisation
to that
effect,2'
but there is no
shortage
of dicta
by judges
and
arbitrators
claiming
such a
power.28
Sometimes, however, the
power
claimed is rather
narrow; thus,
one of the arbitral tribunals set
up by
the
Treaty
of Versailles held that it must
apply
the items listed in the
first
paragraph
of article 38 of the Statute of the Permanent Court
of International
Justice,
and then added:
Enfin,
a
ddfaut
de
regles
du droit des
gens applicables
aux
faits litigieux,
les arbitres estiment
qu'ils
doivent combler la
lacune,
en statuant suivant
les
principes
d'dquitd,
tout en restant dans le sens du droit des
gens,
appliqud
par analogie
et en tenant
compte
de son
dvolution.29
Thus,
even when
applying equity,
the tribunal would feel
obliged
not
to
diverge
much from
analogous
rules of international law.
The extent to which tribunals have made use of this
power
is
rather limited. Some decisions of international administrative tribunals
have claimed a
power
to fill
gaps
in the law
by
recourse to
equity,
but other decisions
deny
that such a
power
exists.30
In some cases
arbitral tribunals have derived rules
governing
the treatment of aliens
from
equitable
considerations;
on the other hand,
the basic
principles
25
Akehurst, op. cit., supra,
n.
7, pp.
88-89.
26
Ibid. See also
Judgment
No. 91 of the ILO Administrative
Tribunal, Deschamps
v. ILO
(1966):
"
As
regards
the
arguments
based on
equity
which the
complainant
puts
forward in favour of a review of his
grievances,
the Tribunal cannot take these
arguments
into account since the time limit
provided
for in the Statute of the
Tribunal is
mandatory;
it is
binding
on the
complainant
and cannot be extended
by
the Tribunal."
Cf. Judgment
No. 197 of the U.N. Administrative
Tribunal,
Osman
(1975), para.
XVI:
"
the Tribunal . . . is bound to
apply
. . . its Statute.
The Tribunal does not have the
power
to decide a case ex
aequo
et bono."
27
Degan, L'dquite
et le droit international
(1970), pp.
29-33.
28
See
Judge
Ammoun's
separate opinions
in the North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3,
132 et
seq.,
and in the Barcelona Traction case
[1970]
ibid.
3, 333;
Pinson case
(1928)
5
R.I.A.A., 327, 355;
Direction
gendrale
des
ports
v. Schwartz
(cited supra,
no.
16);
Administrative Decision No. II
of the United States-
Germany
Mixed Claims Commission
(1923)
7 R.I.A.A. 26. See also the travaux
prdparatoires
of the P.C.I.J.
Statute,
cited
by Cheng (1955)
8 Current
Legal
Problems
185, 210.
29
Sentence arbitrale du 31
juillet
1928 concernant la
responsabilit6
de
l'Allemagne
a raison des
dommages
causes dans les colonies
portugaises,
2 R.I.A.A.
1013,
1016.
But the tribunal in the
Goldenberg case,
which was set
up
under the same
provision
of the
Treaty
of
Versailles,
held that it should
apply
the first
paragraph
of art.
38,
without
mentioning equity (ibid. pp. 901, 909).
30
Akehurst, op. cit., supra,
n.
7, pp.
90-92. See also Guillot v. Commission
[1974]
E.C.R.
791,
802:
"
The
principles
of
justice
as well as those of
good management
demand that if serious
accusations, reflecting
on the
professional integrity
of an
official in
carrying
out his duties are made
by
a
superior,
the Administration should
take all
necessary steps
to establish whether the accusations are
justified."
806 International and
Comparative
Law
Quarterly [VOL.
25
of
customary
law on the
subject
were well established before these
cases were
decided,
and it
may
be that the cases can be
interpreted
as
merely applying
those
principles,
even
though
the
principles
are
not mentioned
by
name.31
In the South West
Africa
case the
International Court said:
Throughout
this case it has been
suggested
. . . that humanitarian con-
siderations are sufficient in themselves to
generate legal rights
and
obligations.
. . . The Court does not think so. It is a court of
law,
and
can take account of moral
principles only
in so far as these are
given
a sufficient
expression
in
legal
form.32
On the other hand,
in the
Corfu
Channel case the Court based its
decision
partly
on humanitarian
considerations,33
and individual
judges
have
recognised
that
equity
can be used to fill
gaps
in the law.34
It is submitted that
equity praeter legem
has a small role to
play
today, simply
because there are fewer
gaps
in the law than there used
to be.
During
the
past
hundred
years
there has been a
huge
increase
in the number of
treaties; modern methods of communication and the
creation of international
organisations
have
speeded up
the creation
of new
customary
law;
the
potential
contribution of
general principles
of law is much better
understood;
and there has been a
big
increase
in the accumulated number of
judicial
decisions and academic
writings.
From a more fundamental
point
of view it could be
argued
that the
controversy
about
equity praeter legem
has
always
been unreal and
that there never were
any gaps
in international law.
Many
writers
maintain that
law,
by
definition,
contains no
gaps.
Even from a more
empirical
and less controversial
point
of
view,
it is
always (or nearly
always) possible
to find some
principle
of
customary
law
applicable
to a
case,
however broad and
vague
the
principle may
be
(e.g.
the
principle
of the
presumption
in favour of the
liberty
of State action,
enunciated in the Lotus
case).
Either a tribunal
applies
such a
prin-
ciple,
in which case there is no room for
equity,
or else it makes an
equitable exception
to the
principle,
which means
applying equity
infra legem;
in neither case does the tribunal need to
apply equity
praeter legem.
31
Lalanne and Ledour case
(1903)
10 R.I.A.A. 17, 18;
Tinoco case
(1923)
1
R.I.A.A.
371,
394-395.
32
[1966] I.C.J.Rep. 3,
34. In view of the criticism which the Court's
judgment
aroused,
it is worth
pointing
out that the Court's dictum about humanitarian
considerations is not
contrary
to its
advisory opinions
on South West
Africa,
in
which it
relied,
not on abstract moral and humanitarian
considerations,
but on an
interpretation
of the mandate and of the
League
Covenant.
33
[1949] I.C.J.Rep. 4,
22.
34
e.g. Judge Ammoun;
see
supra,
n. 28. Judge Alvarez' " new international law
"
was founded
partly
on considerations of social
justice: Degan, L'Vquite
et le
droit
international
(1970), pp.
203-206.
OCT.
1976] Equity
and General
Principles of
Law 807
Application of equity
contra
legem
Writers
3,
and tribunals
36
are unanimous in
holding
that a tribunal
cannot
apply equity
contra
legem
in the absence of an
express
authorisation to
apply equity
contra
legem
such as is found in the
second
paragraph
of article 38 of the International
Court's Statute.
Is
equity
a source
of
international law?
In the Pinson case the
umpire
said that
equity
was a
subsidiary
source of international law when it was
applied
to fill
gaps
in inter-
national
law.37
The other cases cited above are silent on the
question
whether
equity
is a source of international law.38
The fact that tribunals often invoke
equity
does not
necessarily
mean that
equity
is a formal source of law. Counsel and
judges
in
national courts
frequently appeal
to considerations of
equity
and
justice
when the law is
uncertain, but this does not lead to
equity
being regarded
as a source of national law. When
deciding
a doubtful
case, a
judge may point
out that the rule he is
laying
down is
just;
35
Degan, L'equite
et le droit international
(1970), pp. 27, 33-35,
237.
36
See the individual
opinions
of
Judge
Ammoun in the North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3, 138-139,
and in the Barcelona Traction case
[1970]
I.C.J.Rep. 3, 333;
Colleanu v. German State
(1929)
9
Recueil des decisions des
tribunaux arbitraux mixtes
220;
United States ex rel. Continental Insurance Co. v.
Japan (1960)
29
I.L.R.
431;
Rann
of
Kutch arbitration
(1968)
7 International
Legal
Materials
633, 643;
War
Profits
Tax arbitration
(1922)
1 R.I.A.A.
302-305;
Ottoman
Public Debt arbitration
(1925)
ibid.
529, 548-549, 550, 592-594, 595,
601.
Most of these cases concern treaties. A conflict between
equity
and custom is less
likely
to
arise,
because the
scope
of a
customary
rule is
usually
less
precise
than the
scope
of a
treaty provision,
so a tribunal can
"
distinguish
"
a
customary
rule more
easily
that it can
"
distinguish
"
a
treaty provision;
see
pp. 803-804, supra.
37
(1928)
5 R.I.A.A.
327,
355. See also
Judge
Ammoun in the North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3,
132.
38
The arbitral award of
July 31,
1928
(see above, p. 7,
n.
29), might
be
regarded
as an
exception,
because it lists
equity
in the same context as the items listed in the
first
paragraph
of art. 38 of the International Court's
Statute,
which are often
regarded
as the sources of international law. But art. 38 does not
say expressly
that
they
are the sources of international law and some writers
argue
that art. 38 includes
things
which are not
genuine
sources or omits
things
which are
genuine
sources.
Moreover,
the formula
employed
in the award of
July 31, 1928,
has the effect of
underlining
the omission of
equity
from the first
paragraph
of art. 38.
Some
early
arbitral awards said that the whole of international law was " a
system
of moral
equity,"
based on
reason, justice
and
equity (Moore,
International
Adjudications (Modern Series),
Vol.
4, pp. 238, 245, 284, 421).
Such
dicta,
which
are
only occasionally
found in
modern
cases
(e.g.
the
Klemp
case
(1927)
5 R.I.A.A.
579, 583, per
the Mexican
Commissioner),
are concerned with the basis of inter-
national
law,
not with its sources
(cf. Briggs,
The Law
of Nations,
2nd ed.
(1952),
p. 44).
There is no
inconsistency
in
maintaining
that international law is based on
equity
or natural
law,
but that rules of international law must
emerge through
a
particular
formal source
(custom, treaties, general principles
of
law),
and that
equity
or natural law is not such a formal
source;
this is the
position taken,
for
instance,
by
Le
Fur, Precis
de droit international
public,
3rd ed.
(1937), pp.
200-245
(especially
pp. 242-243)
and 525-528.
Sylvia
Williams
((1975)
5 International
Relations, 776) argues
that
equity
has
exercised a
great
influence on
space
law. But
equitable
considerations have either
been
incorporated
in the relevant treaties or General
Assembly resolutions,
or else
have remained at the
stage
of lex
ferenda;
in neither case are
they
a formal source
of law.
808 International and
Comparative
Law
Quarterly [VOL.
25
he
may
also
point
out that it is a workable
rule,
which will be
easy
to
apply
and will
yield predictable
results in future cases. In both
national and international
law,
similar
appeals
are often made to
other
extra-legal factors-religion, morality, good
manners,
neighbour-
liness,
logic,
reason, reasonableness,
common
sense, convenience,
and
political,
economic,
sociological, geographical
and scientific
factors.39
These factors are material sources of
law;
they
are not formal sources.
The same
may
well be true of
equity.
Thus,
in the Rann
of
Kutch
case,
the tribunal said:
...
it would be
inequitable
to
recognise
these inlets as
foreign territory.
It would be conducive to friction and conflict. The
paramount
considera-
tion of
promoting peace
and
stability
in this
region compels
the
recognition
.
.
that this
territory,
which is
wholly
surrounded
by
Pakistan
territory,
also be
regarded
as such.
Equity
was here
put
on the same level as
policy
considerations,
which
are
clearly
not a formal source of
law.40
However,
it would be unwise to make too much of this
argument.
The fact that international law is less
developed institutionally
than
municipal
law means that the difference between formal sources and
material sources is less clear in international law than in
munipical
law.41
To a
large
extent the
question
whether
equity
is a formal source
of international law is a
purely
verbal
question;
whichever
way
the
question
is
answered,
it is an undeniable fact that international
tribunals often
apply equity.
Dangers of applying equity
The fact that international tribunals often
apply equity
does not
necessarily
mean that it is desirable that
they
should
apply equity.
One of the
dangers
of
applying equity
arises from the fact that
equity provides exceptions
to
general
rules. As Charles de Visscher
puts
it:
La
regle
de droit est
l'expression
des
rapports sociaux dans ce
qu'ils
ont de
gdndral.
C'est,
en
effet,
par
l'entremise de sources
formelles (traitis,
coutumes, principes
gdndraux)
inddpendantes
de considerations
d'espece,
et,
a ce
titre,
gdneratrices
de
droit, que
la
regle
accede au niveau de droit
positif.
L'dquit
apparait
dans le
plan judiciaire comme une
justice
individualise.
Elle se
congoit par rapport
a la
rbgle
dont elle invite a se
ddpartir
dans la
mesure
oui
l'exige
une
justice adaptee
a
l'espece.42
39 e.g.
the
geographical
and economic factors taken into account
by
the
International Court in the Fisheries case
[1951] I.C.J.Rep. 116,
133.
40
(1968)
7 International
Legal Materials 633,
692. See also the reference to
"
the
principles
of
justice
as well as those of
good management
"
in the Guillot case
supra,
n. 30.
41
Brownlie, Principles of
Public International
Law,
2nd ed.
(1973), pp.
1-2.
42
Charles de
Visscher,
De
l'dquit6
dans le
reglement
arbitral ou
judiciaire
des
litiges
de droit international
public (1972), p.
3.
OCT.
1976] Equity
and General
Principles of
Law 809
Normally
States are deterred from
breaking
international law
by
fear of
creating
a
precedent
which can be used
against
them in sub-
sequent
cases.43 This fear is removed if one can invent an
equitable
exception
to a
rule;
in such cases a State can continue to
pay lip-
service to the
rule,
while
disregarding
it and
hoping
that the
precedent
will not be
copied by
other States in other contexts. Such a state of
affairs
might
not matter if
compulsory judicial
settlement existed in
international
law,
but at
present judicial
settlement is
optional
and
seldom used. In these circumstances there is a
great danger
that States
will invoke
equitable
considerations as an
exception
to rules of law
whenever obedience to the rules of law would be irksome
(for example,
the
attempts by
some States to
justify
anti-colonialist wars of national
liberation as an
exception
to the
general
rule
prohibiting
the use of
force in international
relations);
the
concept
of
equity
could be used
to
give
an aura of
respectability
to such
exceptions,
even
though
the
States
invoking
them will
probably
refuse to allow the
validity
of the
exceptions
to be tested
by
an international tribunal. What makes this
process particularly dangerous
is that ideas of
equity
often
vary
according
to the interests and culture of the State concerned.
The result is not
only
that
respect
for international law is
weakened,
but also that the rules of international law themselves become uncer-
tain.
Although
it is desirable that rules of law should be
just,
it is
perhaps
even more desirable that
they
should be
certain,
clear and
predictable.
The other main
danger
of
applying equity
lies in the fact that
equity
is
subjective.44
This was well understood in the
early
nineteenth
century,
when an authorisation
given
to arbitrators to
apply equity
was often
interpreted
to mean an authorisation to act as amiables
compositeurs,
or as
government agents empowered
to
negotiate
a
compromise
without
necessarily respecting
the law
4";
in other
words,
there was
only
a thin distinction between
equity
and
political
horse-trading.
Even in a national
society, equity
can sometimes
"vary
with the
length
of the Chancellor's foot." The
problem
is far more acute in
the international
society,
where
political,
ethical and cultural values
are far more
heterogeneous
than in a national
society;
indeed,
the
international
community
is
probably
more
heterogenous
now than it
has been at
any
time since the
re-discovery
of international arbitration
43 Akehurst,
A Modern Introduction to International
Law,
2nd ed.
(1971),
pp.
18-19.
44
Even
supporters
of the
application
of
equity
admit that it is
subjective
and that
its
application
is
very largely
a matter of intuition.
See,
for
instance,
Charles de
Visscher, op. cit., supra,
n.
42, pp.
3-4.
45
Strupp (1939)
33 Recuei des cours
357,
368-391.
810 International and
Comparative
Law
Quarterly [VOL.
25
in the 1790s. Is it realistic to
expect
the
capital-exporting
countries of
Western
Europe
and North America and the
capital-importing
coun-
tries of Asia and Africa to
agree
on what constitutes
equitable
treat-
ment of a
foreign
investor? Can one
expect capitalist
and communist
countries to
agree
on such issues?
46
One of the
problems
about
equity
is that it can often be defined
only by
reference to a
particular
ethical
system. Consequently, although
references to
equity
are
meaningful
in a national
society
which can be
presumed
to hold common ethical
values,
the
position
is
entirely
different in the international
arena,
where the most
mutually antagonist philosophies
meet in head-on
conflict.
Moreover,
many
of the issues which come before international
tribunals are so
complex
and raise such
finely-balanced points
of
conflicting
interests that an
equitable
solution does not
exactly leap
to the
eye,
to
put
it
mildly.47
It is sometimes said to be a
general principle
of law that a
judge
can
apply equity.48
Even if such a
general principle exists,49
it cannot
be
transplanted
into international
law,
because the
homogeneity
of
values,
which is the condition
precedent
for such a
principle
in
municipal
law,
simply
does not exist in international law.50
Some of the decided cases reveal how
subjective equity
can be.
Racial
discrimination,
which would
nowadays
be
high
on most
people's
lists of
inequitable
activities,"1
was
justified
on the basis of
46 It is noticeable that international
lawyers
from communist
countries,
who are
conscious that their
political
values are not shared
by
the
majority
of the
world,
are
particularly
vehement in
opposing
the
application
of
equity
on the
grounds
that it
is
subjective. See,
for
instance,
the
dissenting opinion
of
Judge Koretsky
in the
North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3,
165-167.
47
In his
dissenting opinion
in the Fisheries Jurisdiction case
[1974] I.C.J.Rep. 3,
146-147
Judge
Gros criticised the Court's invocation of
equity.
"
To hold a balance
between the economic survival of a
people
and the interests of the
fishing industry
of other States
"
raised issues which were too
complex
and
explosive
to be resolved
by
the
application
of
equity; striking
such a balance was a
political
and economic
task,
he
said,
not a
legal
one.
48
Jenks,
The
Prospects of
International
Adjudication (1964), p. 316; Judge
Hudson
in the Meuse case
(1937) P.C.I.J.,
Series
A/B,
No.
70, p. 77; Judge
Ammoun in the
North Sea Continental
Shelf
cases
[1969] I.C.J.Rep. 3, 139-140,
and in the Barcelona
Traction case
[1970]
ibid. 332.
49
Equity
has a
fairly
small role to
play
in Soviet law
(David
and
Brierley, Major
Legal Systems
in the World
Today (1968), paras.
168 and
197)
and in Muslim law
(ibid. paras.
430 and
436;
Khadduri and
Liebesny,
Law in the Middle East
(1955),
Vol.
1, pp.
96 and
101). See, generally,
Newman
(ed.), Equity
in the World's
Legal
Systems (1973).
50
Not all
analogies
from
municipal
law are suitable for
borrowing by
international
law;
see
infra, p.
816.
It
may
be that substantive rules of
equity
are the same in all
legal systems
on
a
particular point,
but
(a)
in this case one can
apply
the rule as a
general principle
of
law,
and it is
unnecessary
to see whether
legal systems classify
the rule as
equitable; (b)
such coincidence cannot be assumed-it is inadmissible to
say
that
the
concept
of
equity
exists in all
legal systems
and that an international
judge
can therefore
apply
whatever seems
equitable
to
him,
without
verifying
that the
world's legal systems recognise
the
specific equitable
rule in
question.
51
Cf. Judge
Tanaka in the South West
Africa
cases
[1966] I.C.J.Rep. 6,
304
et
seq.
OCT.
1976] Equity
and General
Principles of
Law 811
equity by
an
arbitral
award in
1895.52
The idea that a State should be
made liable for the acts of unsuccessful rebels,
which was
upheld
on the
grounds
of
equity by
some
arbitrators,53
was
rejected
as
inequitable by
others.54
Again,
the
judgment
in the North Sea Con-
tinental
Shelf
cases, which was based on
equity incorporated
into rules
of
customary law,55
is in
many respects inequitable;
it
gives
a
large
share of the continental shelf to States with a
long
coastline and does
nothing
for States with a short coastline or no coastline,
even
though
they may
have a lower standard of
living
and fewer alternative sources
of fuel than States with a
long
coastline.56
In a
legal system
where there is no
compulsory judicial
settlement,
the
subjectiveness
of
equity
is
very dangerous.
States will base claims
on considerations which seem
equitable
to them but which do not seem
equitable
to their
opponents; disputes
will become not
only
more
frequent,
but harder to settle.
It is also
dangerous
for an international tribunal to base its decisions
on
equity.
A
judgment
which seems
equitable
to the
winning party
may
not seem
equitable
to the
losing party,
who will be
tempted
to
accuse the tribunal of
being
biased and
acting
ultra vires and to
refuse to execute the
judgment.57
Moreover,
if
(as
the author
believes)
the
unpredictability
of
judicial
decisions is a
major
reason for the
reluctance of States to
accept
the
jurisdiction
of international
tribunals,58
it is
likely
that the number of cases submitted to inter-
national tribunals will
vary
in inverse
proportion
to the reliance on
equity by judges
and arbitrators.
This
may explain why
international tribunals often
couple
references
to
equity
with a simultaneous invocation of
general principles
of law,59
52
Degan, L'dquitd
et le droit international
(1970) pp. 110-111;
La
Fontaine,
Pasicrisie internationale (1902) pp.
471-474.
53
Padr6n
case
(1903)
10 R.I.A.A. 741.
54
Sambiaggio
case
(1903)
10 R.I.A.A. 499. See also the United States-Mexican
Special
Claims Convention
1923,
Articles
2,
3 and
6, reproduced
4 R.I.A.A.
779,
and
the Pinson case
(1928)
5 R.I.A.A.
327, 350-351; cf. Sereni,
Diritto internazionale
(1956)
Vol.
1, p. 153,
and the Russell case
(1931)
4 R.I.A.A.
805,
830. This is
precisely
the kind of case where
European
countries and Latin American countries are
likely
to have
divergent
ideas about what is
equitable.
The rule of international law is
clear; subject
to certain
exceptions,
a State is not liable for the acts of unsuccessful
rebels. The introduction of
equity
serves
only
to
replace certainty by uncertainty.
Indeed,
the
resulting
conflicts between the arbitral awards is itself
contrary
to the
basic
equitable principle
that like cases should be treated
alike; moreover,
there is
no
general appellate system
in international law
(unlike municipal law)
to secure
uniformity
of
judgments.
55
See supra, n.
3.
56
Friedmann
(1970)
64 American Journal
of
International Law
229, 236-240;
Brown
(1970)
23 Current
Legal
Problems
187, 195-199; Lang,
Le
plateau
continental
de la Mer du Nord
(1970) p.
137.
57
Anand,
Studies in International Adjudication (1969) Chap.
8.
58
Akehurst, op.
cit.
supra,
n.
43, pp.
304-306.
59
Akehurst, op.
cit.
supra,
n.
7, pp. 84-85;
Russian
Indemnity
case
(1912)
11
R.I.A.A. 431, 442; Yuille, Shortridge
case
(de
La Pradelle and Politis
(1957) 2
25
I.C.L.Q.--4
812
International
and
Comparative
Law
Quarterly [VOL.
25
customary law,60
treaties
(whether applicable
61 or not
62)
or
previous
arbitral decisions.63
Natural law as the
possible
basis
of
an
objective equity
Is it
possible
to rid
equity
of its
subjectiveness by finding
a more
objective
basis for it? Natural law
springs
to mind as a
possible
basis,
but it is doubtful whether natural law can fulfil this function. Even
supporters
of natural law
theory
concede that natural law consists of a
very
small number of
very
broad
principles,64
which are
unlikely
to
be much
help
in
resolving
detailed
legal problems.
Moreover,
the
officials and
legal
advisers of
many
States,
not to mention
many
inter-
national
judges,65
do not believe in natural
law,
and it is
likely
to be
an
unprofitable
exercise to address
arguments
based on natural law
to such
persons.
Above
all,
views of natural law
vary
from
person
to
person
and
from
century
to
century, just
as views of
equity
do;
in
practice,
natural
law is as
subjective
as
equity.66
Lutheran ideas of natural law are
different from Catholic views.67 Chinese ideas of natural law are not
quite
the same as Western views.68
That
concepts
of natural law are relative to the time and
place
is
well illustrated
by noting
the
following
views of Vattel:
A Nation cannot maintain its continuous existence
except by
the
procreation
of children. A Nation of men
is, therefore, justified
in
pro-
curing women,
who are
absolutely necessary
to its
preservation;
and if
its
neighbours
have more than are needed and refuse to
give up any,
Recueil
des
arbitrages internationaux,
2nd
ed., (1957) 108);
Meuse case
(1937) P.C.I.J.,
Series
A/B,
No.
70, p. 50, per Judge Anzilotti;
Ruler
of Qatar v. International
Marine Oil Co.
(1953)
20 I.L.R.
534;
South West
Africa
cases
[1966] I.C.J.Rep. 3,
304-305, per Judge
Tanaka.
60
Royal
Holland Line v. United States
(1931) (1932)
26 American Journal
of
International Law
399, 416; Judge Jessup
in the Barcelona Traction case
[1970]
I.C.J.Rep. 3,
191-192.
61
Turkish Government v. Sir W. J.
Armstrong
Whitworth & Co. Ltd.
(1928)
8
Recueil des
d6cisions
des tribunaux arbitraux mixtes 1001. See also
Akehurst,
op.
cit.
supra,
n.
7, p.
84.
62
Wilhelm v. Bundeskartellamt
([1969]
Recueil de la
jurisprudence
de la
C.J.C.E.
1,
16. The Advocate-General also
pointed
out
(pp. 26-27)
that the solution
applied by
the Court existed in four
(and possibly
all
six)
of the six member
States).
Cf.
the Reich case
,1975]
1 C.M.L.R.
396,
405.
63
(1928)
2 R.I.A.A.
1013, 1031;
Fatovich case
(1954)
22 I.L.R.
409, 412-417;
Russian
Indemnity
case
(1912)
11 R.I.A.A.
431, 442-443.
64
Le Fur
(1927)
18 Recueil des cours
263,
389.
65
e.g.
North American
Dredging
Co. case
(1926)
4
R.I.A.A.
29-30. Of course it is
possible
to cite other
judgments invoking
natural law. But a
theory
which is
accepted
by
some
judges
and not
by
others does not
provide
a
satisfactory
criterion for
deciding
what is
equitable
and what is
not,
because a
judge
who believes in natural
law is liable to decide a case
differently
from a
judge
who does not.
66
Compare Judge
Ammoun's
separate opinion
in the Barcelona Traction case
[1970] I.C.J.Rep. 3,
310 with the dicta in the North American
Dredging
Co. case
(1926)
4
R.I.A.A. 30.
67
Guggenheim (1958)
94 Recueil
des cours
5,
47.
68
Needham 2 Science and Civilization
in
China,
Vol. 2
(i956)
pp.
518 et
seq.
OCT.
1976] Equity
and General
Principles of
Law 813
the Nation
may
use force to obtain them. We have a famous instance
of this in the
rape
of the Sabine women
....
Let us
add, however,
that
if,
as
many assert,
the Romans were in the
beginning
no more than a band of robbers united under Romulus, they
did not form a real
Nation,
a true State.
Neighbouring
States were
perfectly justified
in
refusing
to
give
them
women,
and there was
nothing
in the natural
law,
which
only approves
of civil societies for a
just
purpose,
to
require
that a
society
of
vagabonds
and robbers be
given the
means of
perpetuating itself;
and much less did the natural law authorise
them to
procure
those means
by
force. And in like manner no Nation
was
obliged
to furnish the Amazons with men. That nation of
women,
if it ever
really existed, put itself, by
its own
fault,
in a
position
where
it could not maintain itself without
foreign help.69
If Vattel's views seem ludicrous to us,
Vitoria's views seem down-
right
barbaric;
he invoked natural law as a
justification
for
executing
all non-Christian soldiers who had
fought
in an
unjust
war.70
And
yet
Nussbaum contrasts "Vitoria's warm and humane
reasoning"
with
Suarez's
"cold,
legalistic
manner" and tells us that "Vitoria was
Suarez's
superior
in his
deeply
humane
attitude." 71
Vattel,
Vitoria and Suarez were the
greatest
international
lawyers
of their
respective periods.
If men of their stature could be led
astray
by
reliance on natural
law,
it is
unlikely
that natural law will
provide
us with a clear and reliable criterion for
determining
the content of
equity
in international law.
General
principles of
law as the basis
of
an
objective equity
It is submitted that the
general principles
of law
recognised by
the
laws of civilised nations
provide
a more reliable criterion for deter-
mining
the content of
equity.
As a United States war crimes court
said in the List case:
In
determining
whether . . . a fundamental
principle
of
justice
is entitled
to be declared a
principle
of international
law,
an examination of the
municipal
laws of States in the
family
of nations will reveal the answer.
If it is found to have been
accepted generally
as a fundamental rule of
justice by
most nations in their
municipal law,
its declaration as a rule
of international law would seem to be
fully justified.72
A similar
approach
has been
adopted by
other international
tribunals;
thus in the Orinoco
Steamship Company
case the tribunal
applied
69
The Law
of Nations, or the
Principles of
Natural
Law,
Carnegie
Classics of
International Law
edition, p.
150.
70 Verzijl, International
Law in Historical
Perspective (1968),
Vol.
1, p.
6.
Speaking
of natural
law, Verzijl
said: ". . the most
arbitrary
and
contradictory
conclusions were drawn from it in the course of time. Inferred
equally
from it were
human freedom as well as
slavery;
the
susceptibility
as well as the
insusceptibility
of the
high
seas of
appropriation by
individual
States; personal co-responsibility
of
the citizens of a
vanquished
State for the
damage
caused to the
victor,
or denial
of
it; liberty
to inflict even the most severe treatment
upon,
in
particular,
non-
Christian
prisoners
of war or other
enemies,
and so on
"
(ibid.).
71
Nussbaum,
A Concise
History of
the Law
of Nations,
rev. ed.
(1953), pp. 89
and 91.
72
(1948)
15 Annual
Digest 632,
633.
814 International and
Comparative
Law
Quarterly [VOL.
25
" the
principles
of
justice
and
equity recognised
and
proclaimed
in
the codes of almost all civilised
nations."
73
As
Lauterpacht put
it,
"rules
of
equity
are identical with
legal
rules
proper
and . . these
legal
rules are in
practice
co-extensive with rules of
private
law."
74
If a rule does not exist in the
generality
of
municipal legal systems,
there is
very good
reason to believe that
municipal legislators
are of
the
opinion
either that the rule is not
required by justice
and
equity,
or else that the
rule,
although
desirable from an ideal
point
of
view,
would
probably prove
unworkable in
practice-in
which case it is not
likely
to
prove
workable as a rule of international law.
If a rule does exist in the
generality
of
municipal legal systems,
this
suggests
that
municipal legislators regard
it as fair and
practical.
But,
strictly speaking,
it is
unnecessary
to
prove
that
municipal legal
systems classify
the rule as
equitable;
whether it is
equitable
or not,
it is
applicable
in international law as a
general principle
of law.75
The
recognition
of
general principles
of law as a source of inter-
national law makes
equity
as a
separate concept
redundant;
equitable
principles
are
simply
a sub-set of
general principles
of law.
General
principles
of law can be verified
by
a scientific
study
of the
laws of different States.
Consequently,
a tribunal which
applies general
principles
of law is less
likely
to be accused of
bias,
or of
acting
subjectively
and
arbitrarily,
than a tribunal which
applies equity
unsupported by general principles
of
law;
the tribunal runs less risk
of
jurisdiction being
withheld from it in future cases.
Differences of detail between different
systems
of
municipal
law do
not
prevent
the
application
of
general principles
of law where there
is an
underlying
common
principle.
One can also
say
that there is a
general principle
of law when different
systems
of
municipal
law achieve
the same result
by
different
means;
for
instance,
the trust is some-
times used in
English
law to achieve the same result as a
stipulation
pour
autrui in French law.
But,
although general principles
of law
73
9 R.I.A.A.
180,
200. See also the
Cayuga
Indians case
(20
American Journal
of
International
Law, 574, 581, 586,
593
(1926))
and the individual
opinions
of
Judge
Hudson in the Meuse case
(1937) P.C.I.J.,
Series
A/B,
No.
70, p. 77,
and of
Judge
Wellington
Koo in the
Right of Passage
case
[1960] I.C.J.Rep. 6,
66-67. And see
supra,
n. 59.
74 Private Law Sources and
Analogies of
International Law
(1927), p.
286. See
also Habicht
(1934)
49 Recueil des Cours
281,
349-354.
75 Some
supporters
of the natural law
theory
have
sought
to
identify general
principles
of law with natural
law,
or to
require proof
that a
general principle
of law
must be in accordance with natural law before it can be
applied by
an international
tribunal. For criticism of such
views,
see Basdevant
(1936)
58 Recueil des Cours
475,
499; Akehurst, op.
cit.
supra,
n.
43, p.
52. It is true that States often refuse to
apply,
in an international
context,
rules which exist in their own
municipal laws;
but the
reason for this is not because such rules differ from natural law
(as suggested by
Le Fur
(1935)
54
Recueil
des Cours
207)
but because not all
analogies
from
municipal
law are
appropriate
for
transplantation
into the international environment-see
infra,
p.
815.
OCT.
1976] Equity
and General
Principles of
Law 815
often exist at a
very high
level of
abstraction,76
there is no reason
why
detailed rules which
happen
to be common to different
systems
of
municipal
law should not be
applied
as
general principles
of law;
the difference between a
principle
and a rule is
only
a difference of
degree."
In this
way general principles
of law can be used to
provide
an answer to technical
legal problems,
where
equitable
considerations
would be either irrelevant or else so
equally
balanced on both sides
as to
provide
no real
guidance.
But the fact that
general principles
of law are sometimes technical
does not mean that
they
are
rigid
and inflexible. On the
contrary,
they
are
always capable
of
undergoing
a
process
of
orderly change,
as the
municipal
laws on which
they
are based are amended. In this
way they respond
to
changing
needs without
throwing
the law into
uncertainty. They
do not have the immutable character which has
sometimes been attributed to natural law.
One
possible disadvantage
of
relying
on
general principles
of law
is that
they
are not
recognised
as a source of international law
by
the
Soviet
Union.78
But this
disadvantage
should not be
exaggerated.
They
are
recognised
as a source of international law in other com-
munist
countries,
such as
China,79 Hungaryso
and
Yugoslavia.8"
Admittedly, invoking general principles
of law in a
dispute
with the
Soviet Union is
likely
to be a fruitless
move;
but one could
say
the
76
However,
if the level of abstraction is too
high,
the
principles
become
vague
and
subjective,
and therefore useless.
See,
for
example,
the criticisms
by Judges
Tanaka and
Sorensen
of the
principle
of distributive
justice
invoked
unsuccessfully
by
West
Germany
in the North Sea Continental
Shelf cases, [1969] I.C.J.Rep. 3, 21,
194,
255.
Similarly,
the
principle prohibiting unjust
enrichment
may
be common to
municipal laws,
but those laws do hot
agree
on the definition of
"
unjust," especially
in
expropriation cases;
see Schreuer
(1974)
22 American Journal
of Comparative
Law
281,
284 et
seq.
77
Mann
(1957)
33 British Year Book
of
International Law
20,
36-38. An inter-
national tribunal must consider not
only
the basic
principles
common to
municipal
laws,
but also the
exceptions
to those
principles-something
which the International
Court failed to do in the Barcelona Traction
case, according
to
Judge
Fitzmaurice
[1970] I.C.J.Rep. 3,
84.
78
Tunkin, Theory of International Law
(1974), Chap.
7. See the criticism of
Soviet views
by Virally
in Manual
of
Public
International Law
(ed. Sorensen, 1968),
p. 174; Akehurst, op. cit. supra,
n.
7, pp. 79-80; Akehurst, op.
cit.
supra,
n.
43, p.
52.
The addition of the words "
whose function is to decide in accordance with inter-
national law
..."
to the International Court's Statute in
1945,
which is
interpreted by
Tunkin as
prohibiting
the
application
of
analogies
drawn from
municipal law,
can
also be
interpreted
as
"
remov[ing] any doubt,
if
any
ever
existed,
that
general prin-
ciples
of law
recognised by
civilised nations form
part
of international law ":
Cheng,
General
Principles of
Law
(1953), p. 2,
n. 5.
79
Hsiung,
Law and
Policy
in China's
Foreign
Relations
(1972), pp. 22,
27.
so
Herczegh,
General
Principles of
Law and the Internatoinal
Legal
Order
(1969),
says
that treaties and
customary
law authorise the
application
of
general principles
of law in certain circumstances. See also the other
Hungarian
writers cited
by
Herczegh
at
pp. 21-22.
81
Avramov
(1959)
3
Jugoslovenska Revija
za Medunarodno Pravo
385; Degan,
L')quit6
et le droit international
(1970), p. 17; Bartos,
in
Milanges oflerts
a
Juraj
Andrassy (ed. Ibler, 1968), p.
1.
816
International
and
Comparative
Law
Quarterly [VOL.
25
same of
equity
or natural
law,
which are also not
recognised
as sources
of international law
by
the Soviet Union.
The
application
of
general principles
of law
usually
involves an
element of
analogy.
Claims
brought by
individuals before national
courts after a
long delay
are
usually
declared
inadmissible;
the
period
of limitation varies from State to
State,
but the basic
principle
is the
same. This
principle
is
applied by
international tribunals to the analo-
gous
situation of stale claims
brought by
States before international
tribunals. But there is no reason to believe that a State would be in
breach of international law if it had no statute of limitations in its
municipal
law. The enactment of a rule of
municipal
law
by
all the
States in the world
except
one does not
compel
the
remaining
State
to follow
suit.82
Even if all States in the world have a
particular
rule
as
part
of their
municipal
laws,
each State is
normally permitted
to
remove that rule from its
municipal
law without
breaking
international
law,
even if the other States wish to retain that
rule.83
Moreover,
analogies
drawn from
municipal
law are not
always
relevant or
appropriate
in international
law;
the environment in which
international law
operates
is
very
different from the environment in
which
municipal
law
operates,
and
analogies
drawn from
municipal
law are not
always
suited to the international environment.
Thus,
in
the
Dujay
case the tribunal held that the
principle
actio
personalis
moritur cum
persona,
which at that time existed in the laws of the
United
States,
could not be invoked to
prevent
the United States
claiming
on behalf of the heirs of the dead victim of an international
delinquency,
because the
principle
was not suited to the international
environment, where claims were vested in the State and not in indi-
viduals, and where
delays
in
settling
claims were
usually
much
longer
82
South West
Africa
cases
[1966] I.C.J.Rep. 6,
170.
83 Akehurst
(1972-73)
46 British Year Book
of
International Law 145, 212-214,
225-227; Sorensen (1960)
101 Recueil des Cours
1, 31-33; Quadri (1964)
113 ibid.
237,
353-354. There
are, however,
two
exceptions:
(1)
There
may
be a
treaty
or a rule of
customary
international law
requiring
States
to have a
particular
rule in their
municipal
laws. But
customary
law exists
only
if
there is
opinio juris,
and the
identity
of
municipal
laws is not
enough
on its own
to
permit
an inference of
opinio juris;
see
Rousseau, 1
Droit international
public,
Vol. 1
(1970) pp.
332-333.
(2)
The element of
analogy
is reduced in the case of certain
general principles
of
administrative law
concerning
the
liability
of the State.
Thus,
in the Fabiani case
(1896)
the tribunal reasoned in effect that the State would have been liable for
certain kinds of denial of
justice
in
French,
German and Swiss
law,
therefore
Venezuela
(the
defendant
State)
was liable for the same kinds of denial of
justice
in international law
(Moore, International Arbitrations,
Vol. 5
(1898) pp. 4878.
4895-4896, 4906-4909). Possibly
a
good
deal of the minimum international standard
for the treatment of aliens
originated
in this
way
before it hardened into
customary
law, although
the minimum international standard is
probably
less
exacting
than most
national
systems
of administrative law
(cf.
Neer's claim
(1926)
4
R.I.A.A. 60, 61-62).
See also the Aramco arbitration
(1958)
27 I.L.R.
117,
and the Golder
case, European
Court of Human
Rights, judgment
of
February 21, 1975, para.
35.
OCT.
1976] Equity
and General
Principles of
Law 817
than in
municipal law.84
But the
impact
of this rule should not be
exaggerated.
Most of the
alleged general principles
of law which are
said to be
inappropriate
can be excluded from consideration on other
grounds-either
because
they
are not
general principles
of law at
all,85
or because
they
conflict with treaties or
customary
law
(thus
the
principle
of
municipal
law,
that contracts
imposed by
duress are void,
could not until
recently
be
applied
to treaties because it conflicted with
a rule of
customary
law that treaties
imposed by
force were
valid).
The fact that
general principles
of law can
usually
be
applied only
by way
of
analogy,
and
only
in
appropriate circumstances, may
seem
to limit their
utility.
But this is not
really
a
disadvantage,
because
general principles
of law were never intended to
play
a dominant
role;
they
are a
subsidiary
source of international
law,
overshadowed
by
treaties and custom.
Moreover, it would
hardly
be desirable if
principles
derived from
municipal
law,
which were
quite
unsuited to
the international
environment,
formed
part
of international
law,
or if
a
purely
coincidental
similarity
between different
municipal
laws
meant that States were forbidden to
experiment
with reforms of their
municipal
laws in the future.
Another
possible disadvantage
of
applying general principles
of law
lies in the
alleged difficulty
of
proving general principles
of law.
It is sometimes
suggested
that a
general principle
of law is
something
which is inherent in the
very
nature of law. If this view means that
a
general principle
of law can be established
by
a
priori reasoning,
without
examining
the laws of different
States,
it must be
rejected.
There
is a serious
danger
that
lawyers
will assume that
principles
which
exist in their own
municipal
law are inherent in the
very
nature of
law,
when a
study
of
comparative
law
might
reveal that the
principle
existed
only
in one or two
systems
of
municipal
law. A
principle
cannot be said to be inherent in the
very
nature of law unless it exists
in all
systems
of law.8"
Besides,
the erroneousness of
identifying
general principles
of law with
principles
which are inherent in the
very
nature of law is shown
by
the fact that tribunals often
apply
84
(1929)
4 R.I.A.A. 449. For another
example,
see the Barcelona Traction case
[1970]
I.C.J.Rep. 3,
272 et
seq., per Judge Gros. And
see, generally, Cheng,
General
Principles of
Law
(1953), pp. 265-266, 391, 393.
85
Thus,
the
principle actio personalis
moritur cum
persona,
invoked in the
Dujay
case,
did not exist in
many
civil law countries.
Similiarly, municipal
rules
restricting
the
admissibility
of evidence have sometimes been
rejected
as
inappropriate
to
international
litigation (4
R.I.A.A. 39 and
182);
but most of these rules are
peculiar
to common law
countries,
and
are, therefore,
not
general principles
of law in
any
case.
86
Or at least in all
systems
where the same need
arises;
differences between the
principles existing
in different
legal systems
can often be
explained by
the dis-
similarities of
practical
needs within those
systems.
For
instance,
one would not
expect
to find
mining legislation
in a
country
which has no mines. See
Cheng,
General
Principles of
Law
(1953), pp. 265-266, 391,
393.
818 International and
Comparative
Law
Quarterly [VOL.
25
general principles
of law which are common to a
group
of States
but which do not exist in
many
States outside that
group;
for instance,
the Court of Justice of the
European
Communities
applies principles
which are common to the laws of the member States.87
General
principles
of law are derived from the laws of States. It
may
be
possible
to find indirect evidence of a
general principle
of law
in books on
comparative
law,
in decisions of international tribunals
or even in General
Assembly
resolutions. But a decision of an inter-
national tribunal
applying
a
general principle
of law is not
always
reliable evidence of a
general principle
of
law,
because the tribunal
may
have
misinterpreted
the
municipal
laws from which the
principle
was
derived,
or because those laws
may
have
changed
since the date
of the decision.
Despite
the views advanced
by
some
authorities,ss
General
Assembly
resolutions
proclaiming
the existence of a
general
principle
of law are even less reliable as evidence of the existence
of a
general principle
of
law,
because there is no
guarantee
that the
laws of the States
voting
for such a resolution are in
conformity
with
the
resolution;
thus in the South West
Africa
cases the General
Assembly
resolutions
condemning apartheid
were
supported by many
States whose own laws were full of
discriminatory provisions.
In
short,
there is
only
one reliable
way
in which a
general principle
of law can be
proved,
and that is
by examining
the laws of different
States. Such an examination
may
reveal that a
general principle
of law
exists;
in other
cases, however,
it
may
reveal such a
divergence
that
no
general principle
of law can be said to exist. The existence of a
general principle
of law cannot be
assumed; it must be
proved.89
Obviously,
it would be
impossible
for a tribunal to examine the
laws of all the countries in the
world,
but often that is
unnecessary.
Legal systems
are
grouped
in
families;
the law in most
English-
speaking
countries is
very
similar,
just
as the law in most Latin
American countries is
very
similar. Once one has
proved
that a
principle
exists in
English
law,
there is a
high probability
that it will
be found to exist also in New Zealand and Australia.
However,
it is
not
permissible
to
give
a
preference
to one
group
of
legal systems
87
And see
infra, p.
821 and n. 106.
88
Bleicher,
63 American Journal
of
International Law
444,
452
(1969);
Judge
Tanaka in the South West
Africa
cases
[1966] I.C.J.Rep. 6,
300. And see the
speech
by
Ernest Gross for the
applicants
in the same cases
(reprinted
in
Falk,
The
Strategy
of
World Order
(1966)
Vol.
3, pp. 87-89).
89
Cf. Jennings (1958)
34 British Year Book
of
International Law
334, 354,
n. 2:
" It is true that the
learning
and
ingenuity
of
comparative lawyers
can discover
striking
similarities in the
'general principles'
of
widely differing systems
.
But it is
probably
also true that similar
activity
in the reverse direction would discover
equally
relevant
divergences."
The conflict of laws is one area where it is difficult
to find
general principles
of law:
Lipstein (1941)
27 Transactions
of
the Grotius
Society 142,
and
(1943)
29 ibid. 51.
OCT.
1976] Equity
and General
Principles of Law
819
over another
group, e.g.
to allow
principles
derived from civil
law
countries to override
principles
derived from common law
countries,90
or to allow
principles
derived from Western
systems
of law to
over-
ride
principles
derived from non-western
systems
of
law.91
A
principle
which is
accepted
in
only
a
minority
of States of the world cannot
be
said to be a
general principle
of law.
Ideally
a tribunal should make a
thorough survey
of
comparative
law,
making
use of all the
scholarly
research which has been done
on
the
subject.
But this
rarely happens
in
practice. Usually only
the laws
of a small number of
countries,
or of
none,
are cited.92 The result
can sometimes be the
application
of
principles
which do not exist in
other countries.93 But such cases are not
necessarily productive
of
injustice.
The
parties
are
given
an
opportunity
to cite
authority:
if the
plaintiff
cites rules in some
legal systems
which
support
his case
and if the defendant
neglects
to cite rules from other
legal systems
which
go
the other
way,
the defendant has
only
himself to blame
if the tribunal concludes that the rules cited
by
the
plaintiff represent
a
general principle
of law. It is
only
when 'the tribunal
applies general
principles
of law
proprio motu,
without
inviting argument
on the
point
from the
parties,
that
injustice
can
occur; and even this
danger
can
be
guarded against by bringing
a case before a tribunal
consisting
of
judges
from a wide
variety
of
legal systems,
like the International
Court of Justice.
90 Judge Ammoun, dissenting
in the case
concerning
the
Application for
Review
of Judgment No. 158
of
the U.N. Administrative Tribunal
[1973] I.C.J.Rep.
166,
249,
said that Roman law influences
predominate
in international law and that it
is, therefore, permissible
to
apply
a
principle
which does not exist in the common law.
Roman law influences
may
have
predominated
in the
past,
but that is no
justification
for
distorting general principles
of law
by allowing
Roman law influences to
pre-
dominate
now. Reliance on Roman
law,
as
happened
in some nineteenth
century
cases,
is
particularly objectionable
when it leads to the
application
of a
principle
which is
accepted
neither in the common law nor in modern
systems derived from
Roman law: Mann
(1957)
33 British Year Book
of
International Law
20, 37.
91 Cf.
Tunkin's
warning against
"
the desire to use
'general
principles
of law'
in order to
proclaim principles
of the
bourgeois legal system
to be
binding upon
all ":
Theory of
International Law
(1974), p.
190.
92 Citations are sometimes limited to those countries where a
principle
is most
clearly developed, e.g. England
in the case of
estoppel,
or France in the case of
administrative law
(Marek, Repertoire
des decisions et des documents . . . de la
C.P.J.I.
et de la
C.I.J.,
first
series,
Vol. 2
(1967) pp.
1064-1066, 1068-1072).
93 There are a number of cases
applying general principles
of law which do not
exist in
English law, e.g.
the Russian
Indemnity
case
(1912), discussed
by
Lauterpacht,
Private Law Sources and
Analogies of International Law
(1927), pp.
258 and
261,
n.
1;
the Lhoest case
(1932),
cited in
Akehurst, op.
cit.
supra,
n.
7, p. 74;
and the
Fabiani
case
(1896), Moore, International Arbitrations,
Vol. 5
(1898) pp.
4878,
4895-4896 and
4906-4909. The
disregard
of
English
law was
probably inadvertent; indeed,
in the
first two cases the tribunals
actually
said that the
principle
existed in all
systems
of
law.
English-speaking
members of international tribunals have also
sometimes been
guilty
of
citing principles
of
English
or American law without
ascertaining whether the
principles
existed in other countries: Petroleum
Development Co.
v. Sheikh
of
Abu
Dhabi
(1951)
18 I.L.R.
144,
149-150;
Howrani
case
(1951),
cited in
Akehurst
op.
cit.
supra,
n.
7, p.
78.
820 International and
Comparative
Law
Quarterly [VOL.
25
It is uncertain whether a
general principle
of law must be common
to all
countries,
or
merely
common to
most.94
A
survey
95
of the
judgments
and
pleadings
before the Permanent Court of International
Justice 9 shows that in most cases the
alleged general principle
of law
was claimed
97
to exist in all
countries,98 although
sometimes the claim
was made that it existed in most 99 or almost all countries
100;
in some
cases the laws of a few countries were cited
by way
of
example
but
no
express
claim was made about the number of other countries in
which the same
principle
was
alleged
to
exist.1'0
Such statements are inconclusive because in
very
few of these cases
was it
argued
that the
principle
in
question
could not be
regarded
as a
general principle
of law because it was
rejected by
a
minority
of
States.'02
There
are, however,
a
very
few statements that a
principle
which is not
universally accepted
cannot be
regarded
as a
general
principle
of law.'0s
A related
problem
is whether a State can be bound
by
a
general
principle
of law which is
rejected by
its own
legal system-a question
94
Art. 38
(1) (c)
of the International Court's Statute
speaks
of
"
civilised
nations,"
but this was
probably
not intended to be as restrictive
(or
as
discriminatory)
as is sometimes
alleged: Cheng,
General
Principles of
Law
(1953), pp. 9-10,
and
cf.
Westlake,
Collected
Papers (1914), p.
143.
Where an institution exists in international law
by
virtue of a
treaty
or
custom,
it is
permissible
to
interpret
that institution
by comparison
with
legal systems
where
such an institution
exists,
and with those
systems only.
For
instance,
in Assider v.
High Authority (1955)
1 Recueil
263,
288 the E.C.S.C. Court of Justice was confronted
with a
provision enabling
it to
interpret
its
previous judgments,
and it held that the
provision
must be construed
by comparison
with the laws of those member States
where the same institution existed-which meant French and
Belgian law,
as the
institution did not exist in other member States.
95 It would be
extremely
tedious to make a similar
survey
of all cases which have
come before all international
tribunals;
after
reading many
of the
cases,
the author
has the
impression
that the division of
authority
in the case-law and
pleadings
of the
Permanent Court is matched
by
a similar division in the case law of other international
tribunals.
96
The Permanent
Court,
like the International Court of
Justice,
has
rarely applied
general principles
of
law,
but
they
have often been cited in the
pleadings
and
may
have influenced some of those decisions
by
the Court which do not mention them
by
name.
Cf.
the Court of Justice of the
European Communities,
where the Court's
previous judgments
are cited
by
the
litigants
and the Advocates-General and are
usually
followed
by
the
Court, although
the Court seldom cites them
expressly.
97
But not
proved. Specific
references were never made to the laws of more than
a small number of countries.
98s
Marek, op.
cit.
supra,
n.
92, pp. 956, 959, 960, 962, 994, 1003, 1019, 1020, 1038,
1057, 1060-1062, 1095, 1103, 1116, 1118, 1128, 1131, 1133, 1140, 1142, 1146,
1152-1153, 1162-1163, 1169, 1172, 1182, 1195,
1199.
99
Ibid. pp. 965, 1022-1023, 1027, 1030, 1073, 1115,
1185. 100 Ibid.
p.
981.
lo Ibid. pp. 1056, 1064-1066, 1068-1072, 1077-1078, 1093, 1109-1110, 1201;
Jenks,
The
Prospects of
International
Adjudication (1964), pp.
303-304.
102
Clearly
a
principle
which exists in
many
States but is
rejected
in
many
others
cannot be a
general principle
of law
(Mexico City
Bombardment claims
(1930)
5
R.I.A.A.
76, 83);
but what about a
principle
which exists in
many States,
but is
rejected
in a
few
others?
103
Marek, op.
cit.
supra,
n.
92, pp. 949,
952 and
possibly
1160.
Judge Chagla's
dissenting opinion
in the
Right of Passage
case
[1957] I.C.J.Rep. 125,
177 tends in
the same direction.
Contra, Judge
Tanaka's
dissenting opinion
in the South West
Africa
cases
[1966] I.C.J.Rep. 6,
299.
OCT.
1976] Equity
and General
Principles of
Law 821
which
produced
a
predictable
difference of
opinion
between
Judges
van
Wyk
and Tanaka in the South West
Africa cases.'04 Certainly,
if
a State is not bound
by
a rule of
customary
law which it has con-
sistently
and
constantly opposed
ab initio,'05 it would be
illogical
to
regard
a State as bound
by
a
general principle
of law which has
always
been
rejected by
its own law.
One
might imagine
that the case law of the Court of Justice of the
European
Communities would throw some
light
on the
question
whether a
general principle
of law needs to be
accepted by
all States
or
only by
some,
because the Court
usually
confines itself to
examining
the laws of the member
States,o06
which enables the Court to make
detailed
surveys
of
comparative
law in a manner which other inter-
national
tribunals,
claiming
to
apply
world-wide
principles,
cannot
hope
to imitate. If such a
survey
reveals an
unbridgeable
difference
between the laws of one or two member States and the laws of the
majority,
is the Court at
liberty
to
apply
the
majority
solution?
Some commentators have answered this
question
in the affirma-
tive.107
The Advocates-General have sometimes
suggested
that the
Court is free to select the
principle
of
municipal
law which it
regards
as most
progressive o10
or most
carefully considered.'19
Such
approaches
are
dangerous.
The Court of Justice of the
European
Communities
has
compulsory jurisdiction
over the member
States, so it does not
need to be as cautious as other international
tribunals,
which must
always
reckon with the
possibility
that
unpopular judgments
will
provoke
States not to
accept
the tribunal's
jurisdiction
in future cases.
Even
so,
it would be unwise for the Court to
apply
a
general principle
104
f1966] I.C.J.Rep. 6, 170,
298.
10o
Fisheries case
[1951] I.C.J.Rep. 116,
131. States are bound
by
a rule of
customary
law if
they
have not
participated
in
any practice supporting
or
rejecting
that
rule; by analogy, therefore,
a State should be bound
by
a
general principle
of
law if its own law is silent on the issue in
question.
106 Occasionally
the Court
speaks
of
general principles
of law without
expressly
limiting
them to the laws of member
States,
but in such cases it has not cited the
law of
any particular
non-member State
by
name
(Recueil,
Vol.
2, p. 305;
Vol.
3,
p. 123;
Vol.
4, p. 111;
Vol.
6, pp.
958 and
976;
Vol.
7, p. 386;
Vol.
10, pp. 108,
698, 765, 796-797;
Vol.
14, pp. 474, 501).
In X v. Council
(1972)
18
Recueil 1205,
1216 Advocate-General Roemer cited Swiss
law,
as well as the laws of the member
States,
as
proof
of a
general principle
of insurance
law;
but at least one of the
insurance
companies
involved in the case was Swiss. In
I.C.I. v. Commission
(ibid.
pp. 619, 695-697)
Advocate-General
Mayras
cited
American,
British and Swiss law
as evidence of
customary
international law. He also cited American anti-trust
law
(ibid. pp. 619, 673-674)
and American cases
holding
that a conviction in a state
court does not bar
subsequent prosecution
in a federal court
(Boehringer v.
Commission,
ibid.
pp. 1301-1302),
not as evidence of
general principles
of law
(few
countries
have a
system
of anti-trust law as strict as the American
system,
or a
judicial system
divided into state and federal courts on the American
pattern),
but
because
Community
law faced similar
problems
in these areas and
might
be able to
learn from the American
experience.
107
Lorenz
(1964)
13 American Journal
of Comparative
Law
1,
7-12. See also
(1971)
17 Recueil 975,
990-991.
10s
8
Recueil 485, 539;
ibid. Vol.
15, pp. 1, 27;
ibid. Vol.
17, pp. 515, 533;
[1973]
E.C.R.
1229,
1260. 109 Werhahn
v.
Council
[1973]
E.C.R.
1229, 1260.
822 International and
Comparative
Law
Quarterly [VOL.
25
of law which was
rejected by
the law of a member
State;
and it would
be
adding
insult to
injury
for the Court to tell the member State that
its law was not
progressive
or not
carefully
considered.
Moreover,
6
progressive
"
is a
subjective
term
110;
what is
progressive
and what is
retrogressive depend
on the direction in which one wants to
move,
and there is often no
agreement
about this. If a
principle
is
truly
progressive, why
is it not
accepted everywhere?
The fact that it is
not
accepted everywhere
shows that one's definition of
"
progressive"
is
subjective
and not shared
by everyone.'11
At all
events,
the Court has
adopted
a more cautious
approach.
It has never held that
principles
which exist in the
majority
of member
States,
or which are
progressive
or
carefully
considered,
should
prevail
over the
principles existing
in other member States."2 The Court tries
to find a
principle
which is common to all the member
States,'13
even
if this means
applying
a
very
broad
principle
which is common to all
the member States and which transcends differences of detail between
their laws."4
It is
only
in the "human
rights
"
cases that the Court has
adopted
a bolder attitude. In
Comptoir
National
Technique Agricole
v.
110
"
Carefully
considered
"
is less
subjective,
but there is a
danger
that one will
regard principles
with which one
agrees
as more
carefully
considered than others.
111
Sometimes the Advocates-General have tried to meet this
objection by arguing
that the law in some States is
beginning
to move towards the solution
adopted
in
other
countries,
and that the Court should therefore follow the latter solution
(e.g.
Werhahn v. Council
[1973]
E.C.R.
1229, 1260).
But who can tell whether the law
in the first
group
of countries will continue to evolve in this
direction,
or whether
the trend will be reversed? It is no
part
of a court's function to
anticipate develop-
ments which
may
never be
completed (cf.
the International Court's refusal to
anticipate
the outcome of the UN Conference on the Law of the Sea in the
Fisheries Jurisdiction case
[1974] I.C.J.Rep. 3, 23-24).
Less
objectionable
is the view sometimes
expressed by
the Advocates-General
that a rule
existing
in a
minority
of member States should not be followed
by
the
Court because it is
inappropriate
to the
Community setting;
17
Recueil 975, 990-991
(and possibly
also Vol.
8, pp. 485, 539); [1973]
E.C.R.
1229,
1260.
Cf. supra, p.
815.
The cases in which the Advocates-General have
argued
that the laws of some
member States should be followed in
preference
to the laws of others are
very
few.
More often the Advocates-General examine the laws of
only
some of the member
States,
but without
suggesting
that the laws of the others are different or should be
disregarded.
See
Recueil,
Vol.
4, pp. 346-348;
Vol.
5, p. 365;
Vol.
6, pp. 330-332,
541-542, 838;
Vol.
7, pp. 351-352, 612-613;
Vol.
9, pp. 243-244, 249, 524,
652;
Vol.
10, pp. 109-110, 463, 547-548, 856, 1339-1340;
Vol.
11, pp. 122, 166,
645-646, 880, 1027-1028, 1054, 1174, 1188;
Vol.
12, pp. 186-187, 530, 533, 608,
723-724, 726, 804;
Vol.
13, pp. 133-134, 353, 545-546;
Vol.
14, pp. 452, 454-456,
511;
Vol.
15, pp. 38, 40, 457, 489, 491, 501, 515-516;
Vol.
16, pp. 18-19, 265;
Vol.
17, pp. 529-530; [19731 E.C.R.
717-719, 737, 739,
741.
112
In the
Algera
case
(1957)
3 Recueil 123 the Court
spoke
of la
plupart
des
ldgislations
modernes;
but this formula was not limited to the laws of the member
States,
and the Court did not mention
any
of the member States
by name,
so it is
possible
that the Court
thought
that the laws of all six member States should be
counted among
la
plupart
des lIgislations modernes.
113
Recueil,
Vol.
3, p. 115;
Vol. 8, pp. 651,
709. See also the submissions of
the Advocates-General, ibid. Vol. 6, pp. 235, 910; Vol. 7, p. 386; Vol. 9, p. 82;
Vol. 11, pp. 889-891;
Vol. 14, p. 76; Vol. 17, p. 531; Vol. 18, p. 1296.
114
RecueiI,
Vol.
3, pp.
115-116. See also the submissions of the
Advocates-General,
ibid. Vol.
6, p. 332;
Vol. 13, p. 352; Vol. 17, pp. 532-533.
OCT.
1976] Equity
and General
Principles of
Law
823
Commission,115
the
Court,
following
dicta in earlier cases,116 held
that
the
plaintiff
was entitled to
damages
for the loss caused him
by an
EEC
regulation
which
flagrantly
violated "a
superior
rule of
law
for the
protection
of the individual."
According
to article 215 of
the
EEC
Treaty,
the Court's
judgment
should have been based on
the
general principles
of law common to the member
States,
but the
Court
made no
attempt
to show that the rule which the
regulation
had
violated existed in the laws of
any
of the member States.
(The
dicta
in the earlier cases tend to be
equally evasive).
A
study
of
comparative
law would
probably
have shown that the rule in
question
did not
exist in the laws of most of the member States. Such cases are
examples
of
judicial law-making
rather than of the normal
application
of
general
principles
of law.
Apart
from the "human
rights"
cases,
the
Court's
approach
has
been cautious. It remains to be seen how
long
that caution will be able
to survive the
entry
of new member States whose laws differ consider-
ably
from those of the
original
six members. Most of the cases which
have come before the Court since the
enlargement
of the Communities
arose out of facts which had occurred
previously,
and it
"
may
be that
the laws of the new member States cannot be relevant to the solution
of a
dispute
that arose before their accession."
'117
One
tendency
in
the future
may
be to
rely
less on
general principles
of law and more
on some other basis of decision. One
sign
of this
tendency
can
already
be seen in Nold
v.
Commission. Dicta in
previous
cases had
stated that
Community
acts would be invalid if
they
conflicted with
general principles
of constitutional
law,
common to the laws of the
member States and
designed
to
protect
human
rights."18
It was
possibly
in
response
to the
difficulty
caused
by
the fact that the United
Kingdom
had no written constitution and therefore no entrenched human
rights,
that the Court said in the Nold case:
As the Court has
already stated,
fundamental
rights
form an
integral
part
of the
general principles
of
law,
the observance of which it ensures.
In
safeguarding
these
rights,
the Court is bound to draw
inspiration
from
constitutional traditions common to the Member
States,
and it cannot
115
[1975]
E.C.R. 533.
116
(1971)
17
Recueil 985; (1972)
18 ibid.
405; f1973]
E.C.R.
803, 1070, 1248;
[1974]
E.C.R. 675. See also the cases noted
infra,
nn. 118 and 119.
117
Per Advocate-General Warner in Commission
v.
Council
[1973]
E.C.R.
575,
593;
but he examined the laws of the new member States none the less. The usual
tendency
of the Advocates-General has been to
try
to show that a
principle
is common
to the laws of all member
States,
new and old
(see,
for
instance,
Werhahn v. Council
[1973]
E.C.R.
1229, 1259-1260). They
have never
suggested that the
principles
common to the laws of the six
original members are
part
of the
acquis communautaire
which must be
accepted by
the new members without
alteration,
or that the laws
of the new member States are less
important
than the laws of the old.
118
Stauder
v.
Ulm
[1969] Recueil 419, 425; Internationale
Handelsgesellschaft
[1970] Recueil 1125,
1135
(and
see also
p. 1176).
See also
Moulijn v. Commission
[1974]
E.C.R.
1287,
1294.
824
International
and
Comparative
Law
Quarterly [VOL.
25
therefore
uphold
measures which are
incompatible
with fundamental
rights
recognised
and
protected by
the Constitutions of those States.
Similarly,
international treaties for the
protection
of human
rights
on which the
member States have collaborated or of which
they
are
signatories,
can
supply guidelines
which should be followed within the framework of
Community
law.
The Court here seems to be
moving away
from an exclusive reliance
on
general principles
of
law,
and to be
relying
also in
part
on treaties
for the
protection
of human
rights.119
General
principles of
law common to the
parties
Much of the
difficulty
of
proving general principles
of law could be
avoided if international tribunals confined themselves to
applying
general principles
of law which were common to the
disputing parties,
without
inquiring
whether those
principles
existed in the laws of
other States. Research into two
systems
of law is easier than research
into
many.
The chances of
finding principles (and,
above
all,
detailed
rules)
which are common to two
systems
are
higher
than the chances
of
finding principles
and rules which are common to
many;
this is
particularly
true when the
principle
or rule reflects an
ideology
or
moral values which are shared
by
the
parties
but not
by
all States.
This
procedure
has not often been followed. In arbitrations between
the United States and the United
Kingdom
the
parties
and the arbi-
trators have cited civil law as well as common law.'20 In arbitrations
between Latin American
countries, citations have not been confined
to the laws of Latin American countries.12' Some authorities even
say
that a tribunal is not allowed to confine its examination to the laws
of the
disputing parties.'22
But other authorities
say
the
opposite,23S
and this
procedure
has sometimes been followed when a tribunal has
119
[1974]
E.C.R.
491,
507
(the
Court did not
expressly
mention the
problem
of the new member States in this
context,
but it
may
have taken it into account
none the
less).
There is no reason
why
the two
approaches
should not be
applied
cumulatively;
for some member States the
obligation
not to violate a
particular
human
right may
derive from their
constitutions,
for others it
may
derive from a
treaty. Or,
to
put
the
point
in a
slightly
different
way, legislation
of a State which
conflicts with its international
obligations
should be
disregarded
in
determining
whether a rule forms
part
of the laws of all member States
(cf. (1972-73)
46 British
Year Book
of
International Law
447, 448).
The
problem
caused
by
the fact that
only
some of the member States of the
Communities are
parties
to certain treaties on human
rights
could be avoided if the
Court were
prepared
to
recognise
and
apply
rules of
customary
international law
on human
rights.
Note also that the Court seems to have considered it sufficient
that member States had " collaborated " in the
drafting
of treaties on human
rights,
without
necessarily being parties
to them.
120
Lauterpacht,
Private Law Sources and
Analogies of
International Law
(1927),
Chap.
6 and
p.
286.
121
Ibid.
pp.
290 et
seq.
122
Bengtson v. Federal
Republic of Germany (1959)
28 I.L.R.
549, 555; Dujay
case
(1929)
4 R.I.A.A.
449, 455-456; Lauterpacht, op.
cit.
supra,
n.
120, pp.
236-237.
123
Marek, op.
cit.
supra,
n.
92, p. 1022; P.C.I.J.,
Comit6 consultatif des
juristes,
Proces-verbaux
346;
Administrative Decision No. II of the German-American Mixed
OCT.
1976] Equity
and General
Principles of
Law 825
had to deal with technical
questions,
where it
might
be difficult to
find
general principles
of law which were
widely accepted-e.g.
in
questions
of the conflict of
laws,124
or commercial law.125
There
is,
of
course,
a
danger
that
widespread
use of this
procedure
would tend to convert international law from a
single system
into a
number of unrelated bilateral
systems.126
It
is, therefore,
probably
desirable that a tribunal should start
by trying
to find a
general
principle
of law which is
universally accepted
127; but,
if it cannot
find such a
principle,
it should instead
apply
a
principle
which is
common to the
parties.
There is
nothing
in the Statute of the Inter-
national Court of Justice to
prohibit
this
approach;
the reference to
"general practice"
in article 38
(1) (b)
has not
prevented
the Court
applying
a bilateral
custom,128
so
there is no reason for
regarding
the
reference to
"
general principles
" in article 38
(1) (c)
as
prohibiting
application
of bilateral
principles.
For
years
the Court of Justice of
the
European
Communities
applied principles
common to six States,
and there is
only
a difference of
degree
between
principles
common to
six States and
principles
common to two.
In
any
case, there is
nothing
to
prevent
the
parties agreeing
in a
contract
129
or a
compromis d'arbitrage
that
disputes
shall be settled
by applying
the
principles
common to the laws of the
parties.
Claims
Commission
(1923)
7 R.I.A.A.
26; [1932]
Annuaire de l'Institut de droit
international
305, 320, 324,
328.
Something
similar can
happen
in
practice
when the laws of a few States are cited
as evidence of a
principle accepted by
all or most States
(cf. supra, p. 819).
But in such cases the laws of other States are assumed to be the
same,
which is
rather different from
deliberately ignoring possible
differences in the laws of other
States.
Besides,
the tribunal
normally regards
itself free
(but
not
obliged)
to consider
Systems
of law other than those cited
by
the
parties.
124
Brignone
case
(1903)
10 R.I.A.A.
542, 550;
Swiss
Confederation
v. German
Federal
Republic (No. 1) (1958)
25
I.L.R.
33, 79;
5
Recueil
des decisions des
tribunaux arbitraux mixtes
670, 672;
3 ibid.
p.
1024.
125
Radio
Corporation of
America case
(1935)
3 R.I.A.A.
1621, 1630; Langen,
Transnational Commercial Law
(1973); Lipstein (1941)
27 Transactions
of
the Grotius
Society, pp. 142,
151-152.
126
Cf. Dujay case (1929)
4 R.I.A.A.
449,
455-456.
127
Except
when
general principles
of law are
applied
to fill
gaps
in a
treaty
establishing
a
sub-system
within the main international
legal system,
such as the
European
Communities. In such cases it is reasonable to infer that the
parties
intended that
principles
common to their
legal systems
should be
applied, especially
if
the
treaty
contains
(as
the EEC
Treaty does) many legal
terms derived from their
legal systems.
128
Right of Passage
case
[1960] I.C.J.Rep.
6.
129
See the oil concessions cited
by Delaume,
Transnational Contracts
(1975) ??
1.12
and
1.13,
and
by Lalive, (1964)
13
I.C.L.Q. 987,
1001-1002. Some of these concessions
provide that,
in the absence of
principles
common to the laws of the
parties,
general principles
of law
recognised by
civilised nations in
general
are to be
applied.
Presumably
this clause is intended to cover the case where the law of one of the
parties
is silent on a
particular point (cf. supra,
n.
105);
if the law of one of the
parties
contains a rule
contrary
to the
alleged principle,
that
principle
can
hardly
be
said to be
accepted by
civilised nations in
general, especially
since it is
likely
that
the
negative
attitude
adopted by
the law of the
party
concerned will
probably
be
matched
by
the laws of States with similar
legal systems (cf. supra, p. 820).