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 I ARTICLES

GENERAL PRINCIPLES OF LAW

(A Source of General International Law)
by
Vladimir-Djuro Degan*

1. VARIOUS DOCTRINAL VIEWS

No other source of international law raises so many doctrinal controversies as the

general principles of law "recognized by civilized nations", as Article 38 (1c) of the
Hague Court's Statute qualifies them. There is an aboundance of different opinions on
that issue. Because no writer of a textbook can avoid discussing the matter of sources
of international law, most opinions on general principles reflect rather the doctrinal
predilections of their authors, than the result of a thorough analysis of all the complex
aspects of this particular source.'
Writers disagree on the substance and content of general principles of law, as well
as on their legal scope and relationship with the other main sources, namely treaties
and customary law.

* Head of the Adriatic Institute of the Croatian Academy of Sciences and Arts in
Zagreb. Professor of International Law at the Faculty of Law, University of Rijeka.
This article, which is based on the lectures given by the author at the 6th Helsinki
Summer Seminar of International Law in 1992, constitutes a whole with the article
entitled: "Customary Process in International Law", 1 The Finnish Yearbook of Inter-
national Law (1990). In that previous text there is an explanation of sources of
international law in general, pp. 1-7.
' See a thorough analysis of various doctrinal views B6la Vitanyi, "Les positions
doctrinale concernant le sens de la notion de 'principes gdn6raux reconnus par les
nationals civilisdes'", Revue gindralede droit internationalpublic (1982) (RGDIP) no.
1, pp. 48-116.
 2
Some authors link these principles with the idea of natural law.2 Some others,
basing their views on arbitral compromissh from the 19th century, connect them with
equity.' Following Grotius in this respect, Charles Fenwick was of the opinion that
the fundamental principles of morality and justice are included in these principles,
together with the more specific principles from civil law codes and from Anglo-Saxon
Common Law of judicial precedents.'
Some authors see in the inclusion of general principles in Article 38 of the Statute
of the Hague Court, a defeat of positivism, i.e. an indication of the impossibility of
reducing the entire system of international law to the will of States.' On the contrary,
some other authors consider these principles as precepts of positive law, because of
their being "recognized by civilized nations", and being rules in force in municipal
legal systems of States.' A third group of writers tend to reduce the application of
these principles to the private law analogy,' or to legal reasoning in general.
The situation is not better in regard to the scope of general principles and their
place in the hierarchy among other sources. Some positivists deny their obligatory

2 Cf., as an example, Louis Le Fur, Pricis de droit internationalpublic (Paris 1931)

paras 372, 387 and 454. Alfred Verdross, Derecho internacionalpublico, traduccion
de la Sa edicion alemana (Madrid 1976) pp. 20-26. See also the view expressed by
Baron Descamps infra, para. 11.
' See a survey of these views V.D. Degan, L'dquitd et le droit international
(La Haye 1970) pp. 15-17; Michael Akehurst: "Equity and General Principles of
Law", International and Comparative Law Quarterly (ICLQ) (1976) pp. 801-825.
4 Cf., Charles Fenwick, InternationalLaw, Fourth Edition (New York 1965) p. 87.
* Cf., Oppenheim & Lauterpacht, InternationalLaw, vol. I, Eighth Edition (London
1957) p. 30. It was added there: "...It equally signifies the rejection of the naturalist
attitude, according to which the law of nature is the primary source of the Law of
Nations."
6Charles De Visscher, Theory and Reality in Public International Law, Revised
Edition (Princeton, N.J., 1968) p. 400.
1 This approach is familiar to Anglo-Saxon writers. Cf., Hersch Lauterpacht, Private
Law Sources and Analogies of InternationalLaw (London 1927) passim; Clive Parry,
The Sources and Evidences in InternationalLaw (Manchester 1965) pp. 83-85; etc.
 3
character if not embodied either in treaties or in customary law.! Some of them agree
on their legal character but only in the proceedings before the Hague Court, in cases
specially agreed by parties on its jurisdiction.'
Referring to discussions in the Advisory Committee of Jurists in 1920 in drafting
the provisions of the future Statute of the Hague Court, a group of authors see in
general principles nothing more than a subsidiary source for filling up gaps in positive
internatinal law, when treaties in force between parties and customary law are
lacking.' 0
Relying on the wording of Article 38, the third group does not allow in principle
any hierarchy among treaties, custom and general principles of law. They ascribe to
all these sources equaly the character of law. However, on the ground of the very
general principle of law lex specialis derogat generali, they are compelled to agree
that these principles must concede priority to more substantive sources, i.e. treaties
and custom."
On the contrary, basing themselves on their own views on law in general, some
authors ascribe to general principles the highest rank in the hierarchy among all
sources. Hildebrando Accioly, referring to Alfred Verdross, held that general prin-

' This was the view of the official doctrine in the former Soviet Union, which saw in
this source almost without exception the general principles of international law. Cf.,
Dur, Denevskiy, Krylov, Mezhdunarodnoepravo (Moskva 1970) p. 230; G.I. Tunkin,
Teorifa mezhdunarodnogo prava (Moskva 1970) p. 230; the same author - "Soviet
Theory of Sources of International Law", in Festschrft Verosta (Berlin 1980) pp. 67-
77; 1.1. Lukashuk: "Sources of Present International Law" in Grigory Tunkin, ed.,
Contemporary InternationalLaw (Moscow 1969) pp. 186-187; etc.

' Cf., Arrigo Cavaglieri, Corso di diritto internazionale,terza edizione (Napoli 1934)
p. 81; V.I. Lisovskij, Mezhdunarodnoe pravo (Kiev 1955) pp. 28-29.
o Cf., Smilja Avramov, "Opsta pravna nacela kao izvor medjunarodnog prava"
[General Principles of Law as a Source of International Law], Jugoslovenska revi/a za
medjunarodno pravo (1955) pp. 385-399; Max Soerensen, "Principes de droit inter-
national public", Recueil des Cours (1960) tome 101, p. 16.
" Juraj Andrassy, Medjunarodno pravosudje [The International Judiciary] (Zagreb
1948) pp. 131-132; D.P. O'Connell: InternationalLaw, vol. I, Second Edition, (Lon-
don 1970) p. 10.
 4
ciples of law, as a real or fundamental source, and source par excellence of interna-
tional law, have a pre-eminent character in respect to formal or positive sources which
are treaties and custom. That is because the positive law is based on them, and it
cannot therefore abrogate them."
On the other hand, Max Soerensen deduced that these principles have among all
sources the most fundamental character: "They are, so to speak, cement which makes
firmer cohesion of international law with municipal legal orders, which enables
conceiving all legal phenomena of humanity from the angle of unity". But quite
surprisingly, he ascribes to them an auxiliary character in relation to treaties and
Custom. 1

Therefore, the general principles of law have become one of the most difficult
doctrinal problems since they were promulgated in 1920 as a distinct source of
international law.
The main reason for this variety of doctrinal views lies, first of all, in disagree-
ment among writers on basic concepts of international law itself. Their disagreement
is very often the result of aversion and of a priori rejection of some concepts, lacking
the wish to deal with the core of the problem. Writers disagree on almost all funda-
mental legal concepts, and their views on the general principles of law therefore are
no exception.
The very term of "legal principles is used in doctrine and in international instru-
ments imprecisely and inconsistently.'" They can be, on the one hand, legal maxims
deduced by synthesis from the totality of the system of law, which are presumed to be

n Hildebrando Accioly, Tratado de direito internacionalpublico, vol. I, 2.a edigao

(Rio de Janeiro 1956) p. 37.
n Op. cit., n. 10, p. 16.

* Cf., Bogumila Przewoznik, "Quelquues observationas sur le r6le des principes dans
le droit international public", Anales Universitatis Mariae Cwrie-Sklodowska, vol. 6,
(Lublin 1960) pp. 221-241.
 5
correct and which justify deductions in the legal system." Without such maxims, as
for example that of lex specialis derogat legi generali, or that lex posterior derogat
legi priori, or a number of "rules of interpretation" such as ut res magis valeat quam
pereat, arguments ab absurdo and a contrario,or an interpretation contraproferentem,
legal reasoning would be almost impossible.
However, all these maxims are the most often not unrebuttable legal rules. Charles
Rousseau asks himself with reason, is the maxim lex posteriorderogat legi priori, as
much a rule of legal logic, as it is a general principle of law." Should a judge
neglect or violate some of these maxims, his decision for that reason alone will not be
unlawful. It is for example obvious that the maxim lex posterior derogat legi priori is
not valid when a posterior treaty is in conflict with an earlier peremptory norm of
general international law (jus cogens).
On the other hand, the same term of "principles" is used for the "principles of the
United Nations" from Article 2 of the UN Charter, or for these provided in the
"Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations", adopted
in 1970.
Unlike the aforementioned legal maxims, all these legal principles have been
adopted by States with the aim of being peremptory legal rules, allowing no exception
in their application. And therefore, certainly no two authors will agree on the scope
and character of general principles of law, if regards them as non-obligatory legal
maxims, or the capacity of a judge to have recourse to analogy with municipal law
within his judicial discretion, and the other recognizes them as "general principles of
international law" of peremptory character and superior to all other legal rules.

15Principles of law are defined in Dictionnairede la terninologie du droit interna-

tional (Paris 1960) p. 472, such as: "Propositions premieres d6gagdes de l'ensemble
du systhme juridique par voie de synthbse, consid6rdes comme exactes et susceptibles,
en cons6quence, de justifier des d6ductions dans l'ordre juridique."
16 Cf., Charles Rousseau, Droit internationalpublic, tome premier (Paris 1971) p.

378.
 6
Some positivists deny a priori the character of distinct source of international law
of these principles. They suppose that the matter is of eternal and immutable rules of
natural law, and they simply do not recognize the existence of this kind of law. But
the question is do they really understand what the natural law means. Do they, for
example grasp the difference and relationship of natural law with divine law according
to some classical writers. In addition, this very concept of natural law has evolved
during centuries. One has therefore to be aware of the development and doctrinal
differences on natural law, in order to come to firm conclusions on the possible
relationship between general principles of law and natural law.
Some scholars recognize in general principles of law only principles common to
the main or to all municipal legal systems. They do not examine the problem of
whether these principles are or are not common to all legal systems such as: munici-
pal, international, supranational and transnational.
And finally, most legal writers still see in general principles an autonomous source
of international law, distinct and completely isolated from custom and treaties. If for
instance they find that a particular rule is a part of customary law, or if it is embodied
in a treaty, these facts are for them the evidence that it is not and cannot be at the
same time a general principle of law. This is of course not a proper way of ascer-
taining the very nature and scope of this particular source of international law. The
starting point for further research becomes thus too scanty and poor.

The general principles of law have been included as a distinct source at a particu-
lar period in the development of international law. It is not possible in this work to
explain all the details of this development. But we shall try to explain the main
features in the development of ideas of natural, divine and positive law. We shall deal
especially with the positivism of the 19th century and then with the travaux
prdparatoiresof what was to become Article 38 of the Hague Court's Statute. This
seems to be the only way for eliminating once for all all misunderstandings about the
idea of general principles of law, and thus for finding solution to this old doctrinal
problem.
 7
A. Historical Explanation

2. JUS GENTIUM IN ROMAN LAW

The very term of the Law of Nations orjjus gentium appeared first in Roman law.
But except for rare occasions in its early history, the Roman State did not maintain its
relations with other States on the basis of equality and mutual respect of independence
and conservation." Struggling for a world empire, the Romans imposed their own
law and civilization on subjugated nations.
For this precise reason jus gentium was for the Romans not a set of legal rules or
precepts governing relations between equal and independent nation-States, as the case
is with the present Law of Nations. It was a part of Roman law with some features in
common with general principles of law, wich are the specific source of modern
international law.
The rules of jus gentiwn appeared and were developed in the practice of the
Roman judge, the praetorperegrinus, who dealt with commercial affairs between
Roman citizens and peregrines i.e. members of subjugated peoples within the Empire -
or cases between peregrins themselves."s Roman citizens were subject to their own
jus civile, or jus Quiritiwn, which was highly formalistic and partly of sacramental
character. On the other hand, the jus gentium consisted of legal norms which were
believed to have a universal character, being recognized by all peoples and men
regardless of their nationality and form of civilization.
In his Institutiones the Roman jurist Gaius divided all law into jus civile, which is
created by every people for his own needs; and jus gentium, which was based on
natural reason (naturalisratio) and which is thus common to all peoples. According

" Cf., Arthur Nussbaum, A Concise History of the Law of Nations (New York 1950)
pp. 16-18. Eisner & Horvat, Rimsko pravo (Zagreb 1948) pp. 53-59.
IsNussbaum, ibid., p. 19; Eisner & Horvat, pp. 63-64.
 8
to him, the Roman people makes use partly of their own national law (jus civle), and
partly of the law common to all peoples (jus gentiwn).19
Many Roman jurists did not make a difference between jus gentiwn and jus
naturale (aw of nature), which had been was partly developed by Greek Stoic
philosophers already. They believed that natural law was based on the nature of man
as a rational, social and natural being, and that rules of this kind must regulate human
conduct in general. Being considered simple and reasonable, these rules of natural law
were believed to have a universal application. According to the classic Roman jurist
Ulpian, natural law was even the law which nature teaches all animals, and it is
therefore not confined to the human species."
The institutions of jus gentium had a strong impact on the codification of the
Roman law as a whole under Justinian I, in his Corpus Juris Civilis (529-535 A.D.).
Hence, the codified rules of jus gentium survived the Byzantine Empire and were
directly applied in many States as the law in force until the movment of codification
of civil law. In addition, many of these rules were received in the civil codes of
modem States during the 19th and 20th centuries. They had quite a similar effect on
development of international law from the 17th century onwards.

3. ST.THOMAS AQUINAS ON ETERNAL, DIVINE, NATURAL AND

POSITIVE LAW

During the Middle Ages and before the Reformation in Europe, international
relations were characterized by the absence of sovereign States in the modem sense.
Instead of national and territorial States, there existed a feudal 'organization" of
society, based on mutual rights and duties of suzerains and vassals through the medium
of land tenure. The Church was at that time a unifying factor of that community, and

Gaius, Institutiones, Liber I, 1.

20 Cf., Eisner & Horvat, op. cit., n. 17, pp. 7-9.
 9
it had even stronger and more durable cohesive force than the loose power of
Emperors of the Holy Roman Empire."
In 12th century the so-called hierocratic doctrine of the Pope as the Vicar of
Christ on Earth was developed within the Church. According to this doctrine, the
separation of the spiritual and temporary power of the Pope was practically abolished.
It was claimed that the Pope could not be judged by anyone, and that he had a full
freedom to change laws, even those of his predecessors. He could excomunicate
princes, kings, and even the emperor. He claimed the power to declare treaties
between kings null and void, to annul secular laws, to order kings to despach armed
troops in support of another king or against pagans and hereticsY
Such an absolute papal power could not persist indefinitely, even on a doctrinal
level. Due to an economic development and expansion of trade, especially in Northern
Italy, Roman law was revived in the 13th century. There appeared the school of
Glossators. From the Roman law the concept was restored of the individual as a citi-
zen therefore not as a subject (subditus) of a higher power. Aristotle's philosophy, pre-
served by Arabs, contained the concept of the State as a body of citizens sufficient for
the purposes of life..
The Church sought to canalize that huge interest in Aristotle, accomodating his
philosophy to Christian cosmology. As Walter Ullmann stated, it "appeared as one of
the urgent tasks in the thirteenth century".' That "Great Synthesis" was accom-
plished the most successfully and with lasting effect by the Dominican friar Thomas
Aquinas (1225-1274). Aquinas caused within the Church an irreparable fissure in the
hierocratic doctrine of the papal power.
In his writings Summa Theologiae, and in his Commentary to Aristotle's Politics,
he established a division between Eternal law, Divine (positive) law, natural law and
human (positive) law.

21 Cf., J.L. Brierly, The Law of Nations, Sixth Edition (Oxford 1963) pp. 2-7.
2 Cf., Walter Ullmann, A History of Political Thought: The Middle Ages, Penguin
Books (1970) pp. 110-115.
2 ibid., p. 174.
 10
According to Aquinas, there is an Eternal law, or eternal concept of divine law
"as being God's ordination for the governance of things he foreknows". Since the end
of divine government is God himself, and his law is none other that himself, the
Eternal law is not subordinated to an outside end.2' The Eternal law is nothing other
than the example of divine wisdom as directing motion and acts of everything.' Even
failures in natural process come under its rules."
However, it does not mean for Aquinas that the Eternal law depends on God's
arbitrary choice. On the contrary, "God's mind is... the measure of things", and "the
divine mind is true of itself, and hence the exemplar there is truth itself". That
means that precisely because he is God, he cannot act irrationally and contradict
himself.
The human reason cannot fully grasp the meaning of God's command, in God's
mind. Part of Eternal law is revealed to men in the form of the divine (positive) law 2
found in Scriptures. The ten commandments given to Moses in Sinai are precepts of
such Divine law.
Apart from revelation, there is another way in which men come to know some
parts of Eternal law. That is through natural law, which is "sharing in the Eternal law
by intelligent creatures"" Animals and other non-rational creatures participate in
divine reason by way of obedience, 3o that is to say unconsciously. But only man, as
"a rational animal" can catch some radiance from Eternal law, at least as regards the

' St.Thomas Aquinas, Swnma Theologiae, [latin text with english translation], Thomas
Gilby O.P. (Blackfriars 1964-1966) vol. 28, la 2ea, 91, 2.
2 la 2ae, 93, 1.
21 la 2ae, 93, 5.

" Ia 2ae, 93, 1.

28 la 2ae, 91, 4.

' la 2ae, 91, 2.

30 la 2ae, 95, 5.
 11
general principles of natural law." According to Aquinas, the first command is "that
good is to be sought and done, evil to be avoided". All other commands of natural law
are based on it."
"It is natural for man to be a social and political animal, living in community; and
this is more true of him than of any other animal, a fact which is shown by his natural
necessities"." "But a common social life of many individuals could not exist unless
there were someone in control to attend to the common good".'
Thus, according to Aquinas, government exists primarily to care for the common
good. Like society, it is willed by God. Government therefore exists to preserve
internal peace for citizens, so far as this can be done by legislation supported by
sanction, and to care for the defence of the community, to promote the moral well-
being of the citizens, and to ensure for them a sufficient supply of material necessities.
So we come to the field of human (positive) law. Some of its commands "are
drawn like conclusions from natural law, for instance,
'You must not commit murder' can be inferred from 'You must do harm to nobody'.
Others, however, are based like constructions of natural law, which for instance,
pronounces that crime has to be punished without deciding whether this or that should
be the penalty; the punishment imposed is like a determinate form given to natural
law." Thus, the main function of human law is to define clearly and support by
temporal sanctions the natural law.
It also means that legislation must be compatible with the natural law. "Human
positive laws are either just or unjust. If they are just, they have binding force in the
court of conscience from the Eternal Law from which they derive... Laws are unjust
in two ways, as being against what is fair in human terms and against God's rights.

"la 2ae, 93, 2.

3 la 2ae, 94, 2.

* Cf., De regimene principium, I, 1.

* la 2ae, 96, 4.
IIa 2ae, 95, 2.
 12
They are contrary to human good on the three counts... when the ruler taxes his
subjects rather for his own greed or vanity than for the common benefit; when he
enacts a law beyond the power committed to him; and... when, although meant for the
common good, laws are inequitably dispensed. These are outrages rather than laws;
e36

Among several elements that belong to the essence of human law, is first of all
that it depends on natural law. And, "on this head positive law and justice is divided
into the jus gentiwn and the jus civile, and accordingly to the two processes of
derivation from natural law... Those precepts belong to the jus gentium which are
drawn like conclusions from the premises of natural law, such as those requiring
justice in buying and selling and so forth, without which men cannot live sociably
together; this last is a condition of natural law, since, as is show, in the Politics, man
is by nature a sociable animal. Constructions, however, put upon natural law are
proper to jus civile, and here each political community decides for itself what is
fitting. This division is thus not dissimilar to that which was set up in roman law.
In Aquinas's mind the State is not absorbed by the Church. The State existed
before the Church, and as a natural institution, it co-exists with the Church, exercising
its own functions. It is true that the Church as an independent society, is superior in
dignity to the State, inasmuch as it existed to help man to secure his supernatural and
supertemporal end. And the Pope is subject only to God.
However, there is no longer the room for the temporal power of the Pope as Vicar
of Christ outside the realm of the Church. The result is that the divine law does not do
away with human positive law, provided it is based on natural reason or on natural
law. And thus, neither is there room for the intervention of the Pope in human positive
law when it is in accordance with natural law. For the 13th century, it was a very
modern conception of the relationship between Church and State.

' la 2ae, 96, 4.

7 la 2ae, 95, 4.
 13
As Walter Ullmann rightly stated, it took barely a generation after Aquinas for the
link between Good as author and creator of nature and nature itself to be severed. This
appeared as the thesis that there was a natural law which was in any case valid and
persuasive enough without any recourse to divinity, "simply because the natural law
was reasonable in itself".3 8

4. HUGO GROTIUS ON THE LAW OF NATURE AND VOLUNTARY LAW

The Renaissance which followed, liberated the great intellectual capacities of

human beings. It instigated the scientific research which resulted in substantial
improvements in arms, in shipbuilding and in instruments of navigation. Since that
period Europe became superior to the rest of world and it is only a question of time
when it will extend its power and authority to the remotest parts of our planet.
With the Reformation in Europe in the 16th century, the medieval idea almost
totally disappeared of a World State and of the Church unity with the Pope as the
supreme moral authority. Instead of a feudal "order", a number of States were
instituted which were territorial, secular and as a rule national. Even in States where
the Protestant religion was rejected, the Church was defeated as a rival political force,
and it was never again capable of menacing the political power of absolute
9
monarchs.
Thus the conditions were set for the establishment of a genuine international law
between sovereign and equal States on the basis of mutual recognition of the right to
existence of each of them. Hugo Grotius (1583-1645), famous Dutch jurist, theologian,
philosopher and poet, has been named not without reason, as father of the Law of
Nations. In his magistral work De jure belli ac pacis libri tres, published in Paris in
1625, he made a distinction between a superior law of nature (fus naturae), and
voluntary law (jus voluntariwn).

3 Op. cit, supra, n. 22, p. 184.

39 Cf., Brierly, op. cit., supra, n. 21, p. 5.
 14
Although a famous theologian of his time, and although all his writings were
permeated by the belief in God, Grotius's idea of the law of nature was in a sense
remote from God. It is based first of all on reason and on the nature of man as a
social and rational being. The law of nature is, according to him, "a dictate of right
reason which points out that a given act, because of its opposition to or conformity
with man's rational nature, is either morally wrong or morally necessary, and accor-
dingly forbidden or commanded by God, the author of nature."4
However, the source of this law was not the will of God as such. God does not
create the rules of the law of nature directly, but only indirectly. According to
Grotius, the law of nature was immutable and even God could change nothing in it.
Although the Divine Power is infinite, there are some things upon which even His
power does not dwell at all, because they enclose some manifest contradictions. Since
it is even for God impossible to make two times two not four, it is equally impossible
for him to make something good which is bad in its nature. 41
The difference between Aquinas' and Grotius' perceptions of the law of nature are
thus tremendous. Aquinas held that only God can know Eternal law in his own mind.
Natural law is for Aquinasan imperfect and incomplete perception and sharing by
intelligent creatures in the Eternal law. Grotius in fact absorbs Eternal law in his
concept of the law of nature. The immutable rules of that law of nature are even put
above God's power. And being the dictates of right reason, it is intelligible to all
human beings. Beyond his concept of the law of nature there is no superior legal
order. Thus, the position of man in the universe was by this highly elevated, this being
the impact of the Renaissance. And the confidence in unlimited human capabilities has
never since the Renaissance been undermined, until the present time.
In addition to the law of nature, Grotius recognized a voluntary law (jus
voluntarium), which he divided furthermore into divine voluntary law (jus voluntarium

40 Hugonis Grotii, De jure belli ac pacis lib tres (Jenae 1680) Lib.I, Cap.1, para. X,
1.

" Lib.I, Cap.I, para. X, 5.

 15
divinwn), commanded by God to some peoples individually like the Hebrews, or to all
mankind, 2 and into human voluntary law (jus voluntarium hwnanum).
Within human voluntary law there is "civil law" (jus civile) which emanates from
a civilian power and which governs the State. In fact that was still not civil law in the
present sense, but rather a kind of public law emanating from the power of the State.
Besides this "civil law", there are according to Grotius two other human voluntary
laws, one which is less extensive, and another which is more extensive than "civil
law". The first is subordinated to the law of the State and embraces orders given by
father to son, or by a master to his slave or servant.43
The law that is more extensive than "civil law" is the voluntary Law of Nations
or jus gentiwn. It comprises rules which acquired obligatory force by means of the
will of all peoples or at least of the will of several peoples. He points out "several",
because except the law of nature which is also calledjus gentiwn, it is almost imposs-
ible to find other law which is common to all peoples. That that is the law of nations
in one part of the world very often is not in another, as with regard to prisoners of
war." The law of nations is provein the same way as the unwritten "civil law", by
a continuous usage and by the testimony of experts. Thus, this law is a product of time
and usage.
Already in the Prolegomenaof his book, Grotius gave an extensive explanation of
the law of nation: "...just as the law of each State has in view the advantage of that
State, so by mutual consent it has become possible that certain laws should originate
as between all States, or a great many States; and it is apparent that the law thus
originating had in view the advantage, not of particular States, but of their great
society" (magnae illius universitatis).5

4 Lib.I, Cap.I, paras. XV-XVI.

43 Lib.I, Cap.I. para. XIV.

4 Lib.I, Cap.I, para. XIV, 4, and Lib.III, Cap.VII.

45 Prolegomena, para. 17.
 16
And in the very first paragraph of his Prolegomena, Grotius mentioned among
other things, custom accompanied with tacit agreements of men. Therefore it seems
that when discussing the law of nations as a branch of human voluntary law, he had
in mind customary law, established by a tacit agreement of all or of most States. It is
not likely that the content of agreements made by States and princes (or treaties) is
also a part of this law. Everybody is, according to Grotius, obliged to fulfil his
promises on the basis of the law of nature,' and not of voluntary law.
Jus gentiwn was for Grotius something quite the opposite ofjus gentiwn in Roman
law or in the writings of Aquinas. In the Roman sense it was a set of legal rules,
believed to have a universal character, and as such it was a part of jus naturae, as
Grotius called it. In the Grotian sense, and up to the present time, jus gentiwn is a
public law, agreed by States and governing their mutual relations.
According to Grotius, in so far as the voluntary law of nations or jus gentium is
in conformity with the dictates of right reason, it is in fact assimilated into the law of
nature, being its expression. But in case of a conflict, the law of nature should prevail
because it is superior to anything else. If its immutable rules cannot be challanged by
God's will, still less it can be abrogated in the practice of nations.
In fact, Grotius himself was unable to make a sharp distinction between two legal
orders, although he preached it. Of Interest, however, is the method by which Grotius
deduced legal rules. He confessed himself in the Prolegomena of his book, that he
used the testimony of philosophers, historians, poets and orators, not because they
were themselves conclusive witnesses, but because when they were found to be in
agreement, and their agreement could only be explained in one of two ways: either
what they said must be a correct deduction from the principles of reason, and so a rule
of the law of nature; or else it must be a matter on which common consent existed,
and so a rule of the voluntary law of nations.'

* Prolegomena, paras. 8, 15.

47 Prolegomena, para. 40.
 17
Thus, the process of creation and of formulation of legal rules by Grotius and by
his followers was almost entirely based on deduction. His law of nature was of a too
speculative character. The practice of States, their treaties concluded and customs
consented to, could not play a major part in law making, simply because in the 17th
century they were still rare, and the conduct of princes in their mutual affairs was
largely irresponsible.
It would be too much to pretend that Grotius book became a direct source of the
law of nations, and that it was observed by absolutist monarchs and their ministers.
Nevertheless, it was consulted whenever a practical problem appeared. Hence, some
of his allegations were gradually followed in the practice of States, and thus ultimately
became rules of positive international law. Some others became obsolete."'

5. VATTEL'S VIEWS OF NATURAL LAW

The author with a more lasting influence that Grotius on the actual practice of
States, who was more often than him quoted as an authority in arbitral awards, was
the Swiss Emerich de Vattel (1714-1767). His book, entitled: The Law of Nations, or
Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and
Sovereigns, was first published in 1758.49
Many views of this author could be interesting for a reader at the present time.
The matter is of his ideas on the right of States to security;" duties of a nation to

4 To those who are particularly interested in the impact of Grotian teachings on rules
of positive international law we suggest, C. van Vollenhoven: The Three Stages in the
Evolution of the Law of Nations, Martinus Nijhoff (The Hague 1919).
49We used "ANew Edition by Joseph Chitty, Esq." of its English translation (London
1834).
so Cf., Book II, Chap.IV.
 18
contribute to the perfection of other States, but not by force;' the distinction between
perfect and imperfect rights and obligations and its far-reaching consequences;52 etc.
It has to be stressed here that being a Swiss, Vattel advocated the principle of
equality of all nations and all States. For him "a small republic is no less a sovereign
State than the most powerful kingdom"."
The law of nations for Vattel "is originally no other than the law of nature applied
to Nations".' It is immutable," and "nations can neither make any change in it by
their conventions, dispense with it in their own conduct, nor reciprocally release each
other from the observance of it"." Shortly, it should be a kind of jus cogens in the
modem sense. But the application of a rule cannot be just and reasonable unless we do
not take into account the difference of subjects to which it is applied. "A State or civil
society is a subject very different from an individual of the human race;... since the
same general rule, applied to two subjects, cannot produce exactly the same decision,
when the subjects are different..." it was the reservation of Vattel.
"There are thingsjust in themselves, and allowed by the necessary law of nations,
on which States may mutually agree with each other, and which may consecrate and
enforce by their manners and customs"." Vattel called this kind of law the necessary
law of nations, which consists in the application of immutable rules of the law of
nature. States are in right to insist on the observance of these rules, and their violation
justifies all kinds of self-help.

"Book HI, Chap.I, paras. 6, 7.

2 Preliminaries, para. 7.
53 Prelim., para. 18.

'4Prelim., para. 6.
"Prelim., para. 8.
'4Prelim., para. 9.
* Prelim., para. 6.

" Prelim., para. 9.

 19
However, there are other things of an indifferent nature. The application of the
necessary law is not certain there. "As a consequence of... liberty and independence,
it belongs to each nation to form her own judgment of what her conscience prescribes
to her, - of what she can or cannot do, - if what is proper or improper for her to do:
and of course it rests solely with her to examine and determine whether she can
perform any office for another nation without neglecting the duty which she owes to
herself'.5
The positive law of nations, which proceeds from the will of Nations is according
to Vattel of three kinds: (a) the Voluntary law which proceeds from their presumed
consent; (b) the Conventionallaw from an express consent; and (c) the Customary law
from tacit consent. This trichotomy corresponds grosso modo to the three main sources
of international law as provided in Article 38 (1) of the Statute of the Hague Court,
namely to general principles of law, to conventions and to customary law.'
Vattel thus drew the logical consequences from the speculative character of the
rules of the law of Nature, as deduced by Grotius and his followers, in favour of
sovereignty, equality and liberty of Nations and States to act. Although he preached
strongly the Necessary law as allegedly being immutable and superior to the positive
law of nations, he reduced it in fact to pure morality, the observance of which depends
on their conscience exclusively, and if any.

6. THE MAIN FEATURES OF POSITIVISM SINCE 19th CENTURY

The development of State practice since the Peace of Westphalia of 1648 and
under its influence the development of the major part of doctrine, produced during the
19th century the radical rejection of all remnants of what was called natural law.
The positivist or voluntaristic doctrine of the 19th century was a result of affirm-
ation of practically unlimited State sovereignty. Because the State became the unique

9 Prelim., paras. 16, 21.

a Prelim., para. 27.
 20
subject of international law, and because it was sovereign, it was considered to be
independent in relation to all other States. Having been independent, it was not subject
to any superior rule, and hence to any kind of natural law commanding it how to
behave in regard to its equals.
From the above resulted a concept of law as the exclusive product of the will of
States. Municipal law results from the will of one State, and international law results
from the will of all or of several States. One can ask oneself whether a universal
international law is really possible according to these premises.
And finally, according to this view, no State can legally be bound by any rule to
which it did not give its consent. Only two sources of international law were therefore
possible: treaties consented to expressly, and customary rules consented to tacitly by
sovereign States (tacitus consensus).
This kind of positivism, which is reduced to voluntarism, was nothing else than a
reflection of the new requirements of the society of the 19th century. Growing
commercial and political relations between States could not be based anymore upon
highly subjective rules of natural law, created by each scholar for himself and
following his own "dictates of right reason", or his own perceptions of what is the
rational and social 'nature of man'. These inferences could vary considerably with
different authors, as was already indicated by Vattel.
New international relations were possible only on the basis of precise rules of
positive law. Therefor the movements for codification of civil law in early 19th
century, first in Prussia, then in France, in Austria and in other States of continental
Europe. Therefor the insistence on consensual rules and the rejection of natural law
altogether. As J.L. Brierly rightly stated, "the real contribution of positivist theory to
international law has been its insistence that the rules of the system are to be ascer-
tained from observation of the practice of States and not from a priori deduction"."'
And Charles De Visscher stressed that the indisputable merit of the positivist theory

1 Op. cit., supra, n. 21, p. 54.

 21
lay in offering a clear and generally true picture of international relations in the period
of relative stability that characterized the nineteenth century."2
The negative aspect of this development in law and doctrine, was however the
overemphasis on the sovereign will of States, which was subject to no superior legal
order. Therefrom the freedom (or the "right") to wage wars as a legitimate emanation
of State sovereignty.
The Second World War proved the inadequacy of voluntaristic doctrine in
practice. The ludges of the Nuremberg and Tokyo Tribunals were not able to base
their verdicts on the rules of law which were so far expressly consented to by Ger-
many or Japan, especially on the rules providing for responsibility of individuals for
crimes against peace and against humanity. But still the judgments of these two
Tribunals were not acts of arbitrariness and of revenge against a defeated and hated
enemy.
More than in the Judgments of these Tribunals, the inadequacy of positivism was
explained in the Advisory Opinion of the International Court of Justice of 28 May
1951 concerning the Reservations to the Genocide Convention of 1948. The Court
stated in this Opinion that the "origins of the Convention show that it was the intention
of the United Nations to condemn and punish genocide as "a crime under international
law", involving a denial of the right of existence of entire human groups, a denial
which shocks the conscience of mankind and results in great losses to humanity, and
which is contary to moral law and to the spirit and aims of the United Nations..." The
Court thus concluded that "the principles underlying the Convention are principles
which are recognized by civilized nations as binding on States, even without any
conventional obligation"."
And therefore, the infamous atrocities committed during the Second World War,
which the new Genocide Convention of 1948 was aimed to prevent and suppress, have
proved to politicians and to scholars that beyond and above a set of legal rules

6 Charles De Visscher, Theory and Reality in Public International Law, revised

edition (Princeton, N.J., 1968) p. 54.
63 I.C.J. Reports 1951, p. 23.
 22
consented to by States, there are still at least some principles of moral law. These
principles are recognized by civilized nations as binding on States without any
conventional obligation. That because the crime of genocide is a crime in itself and
because of its evil consequences, and not because of a positive rule of international
law consented by States forbids it. These principles are therefore necessary for the
maintenance of humanity and for the existence of an international community in which
every State has to enjoy its rights to existence, to conservation and to respect in regard
to all other States. These principles are, in addition, a prerequisite for the maintenance
of world peace and for a minimal legal order in international relations.
From a strictly doctrinal point of view positivism has been an unsound theory
since its beginnings. Implied consent, for instance, cannot be an adequate explanation
for the existence of customary law. "Acustomary rule is observed, not because it has
been consented to, but because it is believed to be binding", was the view of Brierly.
And this is a correct conclusion at least when the matter is of customary rules of
general international law. Brierly asserted furthermore that the theory of implied
consent is nothing else but a fiction invented by theorists." If the basis of creation of
new legal rules is reduced to the will of States only, it becomes extremely
impoverished, and according to Charles De Visscher, international law is then
"impressed by a markedly static character"."

7. GENERAL PRINCIPLES OF LAW IN EARLY ARBITRAL AWARDS

The main deficiency of the positivist approach seems to be that if international law
is reduced to a set of legal rules consented to by particular States, it ceases to be a
system of law. This short-coming was perceived first in the international arbitral
practice of the last century.

"Op. cit., supra, n. 21, pp. 51-52.

6 Op. cit., supra, n. 62, p. 54.
 23
The first arbitrations following the Jay Treaty of 1794 between the United
Kingdom and the United States, consisted of a so-called mixed claims commission,
appointed by the parties on the basis of parity. Their members acted more as negoti-
ators than as impartial judges. They were the most successful when able to reach a
decision giving a measure of satisfaction to both sides, especially in territorial
disputes." As a matter of fact their awards were not decisions based strictly on law.
They were a kind of agreement based on political expediency. Only when these
commissioners were not able to settle a case by common agreement, was it trasmitted
to the third impartial arbitrator.
The fact that even the disputing parties were partially aware of the deficiency of
positive international law in force as the basis of arbitral settlement can be demon-
strated from the wording of arbitral compromis concerning the law to be applied by
arbitrators. The majority of compromis were silent on this issue. In some other
compromis, or in the of oaths the arbitrator had to take, he was authorized to decide
the respective claims according to "justice, equity and the law of nations", or accord-
ing to "law and equity", or on the basis solely of equity.' In most of these instances
the arbitrator did not, however, interpret these provisions so as togrant him the power
to decide ex aequo et bono, that is to say on an extra-legal basis.
It is sure, however, that in no instance when the arbitrator was faced with the gaps
in the positive law consented to by the parties, did he venture to base his award on his
own considerations of natural law, nor did he dare to refer to the naturalist teachings
of Grotius, Pufendorf or Wolff.
Instead of that, the arbitrators made another choice. Hersch Lauterpacht in his
book of 1927 on PrivateLaw Sources and Analogies of InternationalLaw showed that
in many cases in the last century, the arbitrator had recourse to analogies from

" Cf., J.L. Simpson & Hazel Fox, International Arbitration, Law and Practice
(London 1959) pp. 1-4.
61See an analysis of these texts V.D. Degan, L'dquit et le droit international(La
Haye 1970) pp. 63-72.
 24
municipal civil law, or even from Roman law." It was quite natural when private
were at stake claims, especially in disputes between the United Kingdom and the
United States, that the arbitrator referred to the legal rules common to both countries.
Many arbitrators were judges in their own countries and private law was not unknown
to them. And because Roman law was at that time the common heritage in the forma-
tion of jurists in the so-called "civilized States", the arbitrator resorted in some
instances directly to the Corpus Juris Civilis as the allegedly "common law" of the
parties. Sometimes, however, they applied the precepts from Roman law in a manifest-
ly distorted manner. We shall explain here some of these arbitral awards. The rest of
them can be consulted in Lauterpacht's book of 1927.
In the Yuille, Shortridge & Co. case between Great Britain and Portugal, decided
on 8 March 1861 by the Senate of Hamburg as arbitrator, at issue was the amount of
indemnity for reparation of damages caused by the Portuguese Government to some
British subjects. In fixing the amount for a part of that indemnity, the arbitrator took
into account the interest on the principal sum for the period since the time of injury
suffered. In that respect it was stated:

"However, since, according to the common law (le droit commun), which
is the only applicable in this subject-matter, cumulation of accruing interests
stops when they arrive the amount of the capital (D. de conditione indebiti
12, 6; C. de usuris IV, 32), it was necessary to limit the interest of the
British Royal Government in this part to £2589,14,1.""

Thus, in this Award the Senate of Hamburg directly resorted to Justinian's Corpus
Juris Civilis as the alleged "common law", the only one applicable to the case.

68 Hersch Lauterpach, Private Law Sources and Analogies of International Law

(London 1927) especially pp. 203-296; cf., in addition, Alfred Verdross, "Les
principes g6ndraux du droit dans la jurisprudence internationale", Recueil des Cours
(1935) tome 52, pp. 207-219; Paul Guggenheim, "Contribution Al'histoire des sources
du Droit des gens", Recueil des Cours (1958) tome 94, pp. 72-74.

1 Cf., H. La Fontaine, "Pasicrisie internationale", Histoire documentaire des

arbitrages internationaux (1794-1900), (Berne 1902) p. 383.
 25
The Cestus case between Great Britain and Argentina related to the losses suffered
by some British vessels which were refused entry into the port of Buenos Aires.
Argentina closed its own port in 1845 as a part of blockading the enemy port of
Montevideo, and as an act of warfare agains Uruguay. The sole arbitrator, the
President of Chile, by his award of 1 August 1870, rejected the British claim, on the
ground inter alia,
"That it is a principle of universal jurisprudence that he who uses his right
offends no one."70
The correctness of this principle is, however, that precluding the abuse of one's
rights.
The subject-matter of the Fabiani case between France and Venezuela was the
denial of justice to a French subject by Venezuelan courts. The arbitral compromis of
24 February 1891 provided that the President of the Swiss Confederation as the sole
arbitrator decide whether, according to laws of Venezuela, "the general principles of
the law of nations", and a convention in force between the parties, the Government of
Venezuela is responsible for injury suffered by the said Fabiani for the denial of
justice. Ifsuch a responsibility were to be established, the arbitrator was to decide the
amount of indemnity.7'
In his Award of 30 December 1896, the arbitrator made a comparison of the
concept of "denial of justice" in the three sources indicated in the compromise. He
concluded that there were neither essential, nor important differences between them.
He first took into consideration the provisions of the Penal code of Venezuela and the
bilateral convention between the parties. Then he stressed:

"Consulting the general principles of the law of nations on the denial of

justice, that is to say the rules which are common to the majority of legisla-
tions or thought by the doctrine, it is to be decided that the denial of justice
comprises not only the refusal of a judicial authority to exercise its functions,

70
TIbid., p. 67.
7' Ibid., p. 344.
 26
and in particular to decide the claims which are submitted to it, but also his
obstinated delays in passing his sentences."7

In order to uphold his conclusion, the arbitrator quoted two judgments delivered
by the Federal Swiss Court, and six legal textbooks written by French, German and
Austrian authors.
Thus, following the concept of "general principles of the law of nations", this
arbitrator undertook a comparative analysis of several municipal legal systems.
In the territorial dispute between Great Britain and Venezuela on British Guiana,
the arbitral tribunal had to trace the boundary in question, "as reason, justice, the
principles of international law and the equities of the case shall... require". In fixing
the borderline, the Tribunal in its Award of 3 October 1899, referred to concepts of
prescription, occupation of possessions and the principle of estoppel from municipal
legal orders.'
And in the case between Great Britain and the United States on one side, and
Portugal on the other, the arbitral tribunal had to fix "as it shall deem most just" the
amound of the compensation due by the Portuguese Government to the claimants, in
consequence of its repeal of the concession of the Lourenzo Marquez Rail Road in
Mozambique, and the taking possession of that railroad by the Portuguese Govern-
ment.
In its Award of 29 March 1900, the tribunal established that the Portuguese law
was applicable in that case. But it concluded that this statement had only a theoretical
effect. The Portuguese law does not in fact comprise in decisive and relevant points
any particular provision deviating from "the general principles of law common to
modern nations".

7 Ibid., p. 356.

n Ibid., pp. 227-233. See an analysis od this award H. Lauterpacht, op. cit., n. 68,
pp. 227-233.
' Cf., La Fontaine. op. cit., n. 69, p. 399.
 27
Here the formula of "general principles of law" was for the first time used in a
sense almost identical to that in the future Article 38 (1c) of the Statute of the Perma-
nent Court of International Justice, which was to be adopted twenty years later.
In this particular case, by this formula, the general principles of law replaced the
application of relevant rules of national law. The Tribunal in its Award stated that:

"...a single principle of law remains to be applied in fixing the "compen-

sation" allocated by the Tribunal; it cannot be other principle that that of
damages and interest, of id quod interest, embracing according to the
universally adopted law, the damnwn emergens and the lucrum cessans;
damage suffered and gain lost.""

We shall here close our short review of arbitral practice until the beginning of
20th century. It corroborates our previous conclusion that especially when private
claims of individuals were in question, the arbitrator was unable to decide the case on
the sole basis of rules of international law as consented to by the parties, either in
treaties in force or in customary rules.
In most of these cases the arbitrator had no choice but to base his decision on the
"common law only applicable" in the case, i.e. Roman law; or on the principles of
"universal jurisprudence"; or on the "general principles of the law of nations"; or on
"the general principles common to modern nations".
We do not pretend that arbitrators found the only rule applicable to the case
concerned, and that the derogation from the legal principles which were applied
resulted in an unlawful judgment. The discretion of arbitrators was too large. It is
more correct to say that their decisions were largely based on equity. And when the
arbitrator came to the conclusion on this basis, he endeavoured to find the closest
general principle of law in order to corroborate his award. It seems therefore most
likely that in most cases the claim could have been decided differently, and that the
arbitrator would have been able to find another principle of universal jurisprudence in
favour of his decision. This practice nevertheless refutes the positivist allegations on

Ibid., p. 402.
 28
international law and it demonstrates, rather, the unity of international and municipal
legal orders in a monistic, rather than dualistic perspective.
This early arbitral practice also demonstrates the reluctace of arbitrators to resort
to naturalistic concepts of law, even as a means of filling gaps in positive law.

8. GENERAL PRINCIPLES OF LAW IN THE HAGUE CONVENTIONS OF

1899 AND 1907

The accomplishments of the two Hague Conferences are important for our topic
for two main reasons. For the first time, the principles of arbitral procedurein were
codified multilateral conventions. In two other conventions their drafters had to
provide provisions concerning the rules to be applied for filling the gaps in conven-
tional and customary law in force. These solutions later on inspired the drafters of the
Statute of the Permanent Court of International Justice.
The Hague Conference of 1899 with its Convention for the Pacific Settlement of
International Disputes was an important step in the development of international
arbitration. By that Convention arbitration was finally confirmed as an impartial
procedure and it severed its last links with the former mixed claims commissions.
Both the Convention of 1899 and its enlarged text of 1907 which is now in force,
define international arbitration as: "the settlement of disputes between States by judges
of their own choice, and on the basis of respect for law".
This rather restrictive definition did not in practice preclude States from authoriz-
ing arbitrators by their common agreement, to decide their case on the basis of equity
contra legem, on "law and equity", "in a friendly manner", as an "amiable
compositeur", or on a similar extra-legal basis. It was exactly the Permanant Court of
Arbitration which was established by the Convention of 1899, which has decided some
cases brought to it on the basis of equitable considerations rather than on strict
application of law. The said provision from the Conventions should therefore be
interpreted as a repugnance of their parties in regard to political expediency as a
possible basis of arbitral settlement, and as their confirmation of impartiality and of
strict equality of parties in the procedure,
 29
Both texts of the Conventions, that of 1899 and that of 1907, provide for a set of
non-obligatory rules of arbitral procedure. That means that the parties to a case can
agree on different procedural rules, or they can authorize the arbitrators to adopt such
rules before the beginning of the proceedings. Similar procedural rules to these from
the Conventions were applied in the Alabama case of 1872, as well as in some later
proceedings. The first set of rules of arbitral procedure for general use was adopted by
17nstitut de Droit internationalin 1875 in its "Draft Rules on International Arbitral
Procedure" (Projetde r&glement pour la procddure arbitraleinternationale)equally on
the basis of experience from the Alabama case."6
It would be too much to state that the procedural rules from the Hague Conven-
tions were a codification of the customary law then in force. The arbitral settlement of
disputes is still not obligatory on States as such on the basis of general international
law. Therefore no rules of arbitral procedure can be binding on a customary basis.
The texts of the two Conventions were in fact acts of codification of some general
principles of law common to all advanced municipal legal systems in the world.
Hence provisions concerning the division of procedure into pleadings and oral part
(Art. 63 (1) of the 1907 Convention); of communication of copies of documents
produced by one pary to the opposite side (Art. 64); the powers of the umpire in
leading the oral procedure (Art. 66); the power of the tribunal to call upon the parties
to produce documents and to supply necessary explanations (Art. 69 and 72); secret
deliberations of the tribunal after concluding the oral procedure (Art. 78); the duty of
the tribunal to state the reasons on which its award was based (Art. 79); reading the
award in open session (Art.80); decision by the tribunal itself on later disputes
concerning the interpretation and execution of the award rendered by it (Art. 83); - all
these provisions were more or less well known principles from the law of procedure,
common to the majority of advanced legal systems of States.
The aim of all these procedural rules is the preservation of the equality of the
disputing parties, and their enjoyment of equal rights in support of their claims and

76
See the text: RMsolutions de 17nstitutde Droit international(1873-1956) (BMle 1957)
pp. 147-153.
 30
counter-claims by documents, by testimony or by other means in all phases of the
proceedings. All these basic principles are inherent in judicial procedure of whatever
kind, internal or international. The lack of some of them, or their manifest violation
would affect the judicial character of the procedure as well as the final award.
It must be stressed that the drafters of these procedural rules did creatively apply
general principles of law in this particular domain of international arbitration. Many
principles common to all municipal legal systems are simply not applicable in interna-
tional adjudication, as for instance the right of appeal by parties to a higher instance,
which does not exist in international arbitration unless expressly provided by the
parties in advance.
On the other hand, some of adopted procedural rules are peculiar to international
adjudication only: these are provisions concerning the compromis concluded by the
parties as the precondition of arbitral settlement (Art. 52-55 of the 1907 Convention*;
their common decision in regard to the seat of the tribunal (Art. 60); the use of the
language of the proceedings (Art. 61); etc. Thus in this domain as elsewhere, there is
no room for a blind analogy from municipal law. A careful selection of general
principles of law is necessary such as are essential for the judicial function and
applicable to international arbitration at the same time.

We shall now discuss some provisions from other Hague Conventions of 1907
which were well known to the drafters of the first Statute of the Permanent Court of
International Justice in The Hague in 1920.
The first is the famous Martens Clause from the preamble of the Fourth Hague
Convention Respecting the Laws and Customs of War on Land. The States participat-
ing at the Hague Conference were aware of the fact that their attempt to codify the
laws of war was necessarily incomplete. And in order to avoid the negative conse-
quences of the German proverb "Kriegsraeson gech vor Kriegsmanier" [necessity in
war overrules the manner of warfare], the parties adopted the clause proposed by
Professor Feodor Feodorovitch Martens, member of the Russian Imperial Delegation.
This clause reads as follows:
 31
"Until a more complete code of the law of war has been issued, the high
contracting parties deem it expedient to declare that, in cases not included in
the Regulations adopted by them, the inhabi-tants and the belligerents remain
under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilized peoples, from the
laws of humani-ty, and the dictates of the public conscience."

A hierarchy of rules of warfare was therefore established by this clause. In the

first place are to be applied the written rules embodied in this and in other conven-
tions. In case of lack of applicable rules from these conventions, "principles of the law
of nations" should be applied as they result from the usages established among
civilized nations. It is the most probable that this concerned customary rules in with
the force of general international law. And if even such principles do not exist, "prin-
ciples of the law of nations" as they result "from the laws of humanity and the dictates
of public consciene" become applicable. It can reasonably be doubted that these
principles consist of rules of positive international law as accepted by the respective
States, according to positivist requirements.
The Martens clause is still valid in all situations where the positive law of warfare
is not codified by written rules, or when it becomes inadequate due to the progress of
war technology. It has been embodied in post-war conventions on humanitarian law."

7 This clause reads in its French original text as follows:

"En attendant qu'un Code plus complet des lois de la guerre puisse 6tre 6dict6, les
Hautes Parties Contractantes jugent opportun de constater que, dans les cas non
compris dans les dispositions r6glementaires adoptdes par elles, les populations et les
belligArants restent sous la sauvegarde et sous l'empire des principes du droit des gens,
tels qu'ils r6sultent des usages 6tablis entre nations civilis6es, des lois de l'humanit6
et des exigences de la conscience publique."
" Cf., denunciation clauses in all four Geneva Conventions of 12 August 1949 (Art.
63 (4) of the First Convention; Art. 62 (4) of the Second Convention; Art. 142 (4) of
the Third Convention; and Art. 158 (4) of the Fourth Convention). In all these
provisions it was provided that the denunciation of the convention at stake shall not
affect the obligations of parties on the basis of principles of international law derived
from established custom, from principles of humanity and from the dictates of public
conscience. In addition, the Martens clause is included in Article 1 (2) of the Protocol
I of 1977 in the same wording of the 1907 Hague Convention.
 32
We have already cited Article 7 of the unratified Twelfth Hague Convention
Relative to the Creation of an International Prize Court of 1907." With the short-
lived Central-American Court of Justice which was established in the same year, the
International Prize Court was intended to be the first permanent international judicial
organ. As was said, Article 7 of the Convention listed the sources of law for the future
Court and it established their hierarchy. In the first place should be applied conven-
tions in force between the disputing parties. In their absence a case should be decided
according to "generally recognized", "rules of international law". And in the absence
of such general customary rules, the Court should decide "according to the general
principles of justice and equity".
As with the Martens clause, the drafters of this provision therefore left the domain
of positive international law in order to eliminate the danger of non liquet.
However, this formula of "general principles of justice and equity" reminiscent to
a certain extent of Article 1 of the Swiss Civil Code of the same year, 1907. Accord-
ing to that provision the Swiss judge is authorized to decide a case in the absence of
a legal provision or customary law, "according to the rules which he should lay down
in the r6le of legislator". Thus, the judicial and legislative r6les of the judge were
merged here in order to fill gaps in the positive law.
All the foregoing provisions prove the simple fact that the rules of international
law consented to by States do not constitute a complete system of legal norms. And
when the necessity for the filling the gaps in these rules appears, new sources of law
had to be invented, thus disproving the soundness of the positivist doctrine of interna-
tional law. The drafters of the Statute of the Hague Court after the First World War
were faced with the same dilema.

' Cf., supra, para. 1.

 33
B. General Principles of Law and the Hague Court

9. TRAVAUX PREPARATOIRES ON ARTICLE 38 OF THE COURT'S STAT-

UTE

Before the adoption of the Statute of the Permanent Court of International Justice,
general principles of law were not recognized in doctrine, nor even known, as one of
the main sources of international law. Only after 1920 did discussions begin on the
nature and scope of this specific source. It is therefore of particular importance to
know what the drafters of the Statute really meant by this formula.

At its Session of February 1920 the Council of the League of Nations constituted
an Advisory Committee of Jurists of ten persons with the task of preparing a Statute
of the projected Permanent Court of International Justice. This Committee had
therefore inter alia the duty to determine the sources of law to be applied by the future
Court.
All members of the Committee were unanimous that conventions and custom are
undoubtedly sources of international law. But most of them were fully aware of the
fact that these two sources of positive law were simply not sufficient in order to serve
as a basis for settlement of all possible disputes which States could bring to the Court.
In case of gaps in the law the Court should not prononce a non liquet. Therefore
almost all members agreed that these two basic sources of positive law should be
completed by some other kind of legal rules. Disagreement arose on what should be
this third source of international law, and different schools of legal thinking were
manifested in this respect.
The Belgian member Baron Descamps, in his capacity of Chairman submitted the
following proposal to the attention of the Committee, as the basis for further dis-
cussion:
"The following rules are to be applied by the judge in the solution of
international disputes; they will be considered by him in the undermentioned
order:
 34
1. conventional international law, whether general or special, being
expressly adopted by the States;

2. international custom, being practice between nations accepted by them

as law;

3. the rules of international law as recognized by the legal conscience of

civilized nations;

4. international jurisprudence as a means for the application and develop-

ment of law."s

This proposal met strong opposition from the British and American members, in
particular with regard to its point 3. Elihu Root stressed the fact that no State would
be willing to sumbit itself to the compulsory jurisdiction of a Court which was
supposed to base its judgments on legal rules unknown to, or not accepted by the given
State. He retorted to this proposal that the principles of justice "are differently
understood in different countries"."
Baron Descamps replied that merely the secondary principles of justice varied
from country to country, whereas the fundamental law of justice and injustice is deeply
engraved on the heart of every human being and is given its highest and most authori-
tative expression in the legal conscience of civilized nations." Grotius would prob-
ably undersign this statement. But it did not satisfy the majority of members of the
Committee in 1920.
The French member Albert de Lapradelle suggested that the wording of the Statute
should be brief and pithy: it should declare that - "the Court shall judge in accordance
with the law, justice and equity". But he nevertheless stressed that it was necessary to

" Cf., Permanent Court ofinternational Justice. Advisory Committee ofJurists. Procks-
Verbaux of the Proceedings of the Committee, June 16th - July 24th, 1920 (The Hague
1920) p. 306.
* Ibid., pp. 308-310.

2 Ibid., pp. 310-311.

 35
point out that the Court would not act as a legislator." The member from Norway,
Hagerup, countered this with the view that the Court should only have recourse to
equity if authorized to do so by the parties. But he agreed with Lapradelle that it must
have the power to apply principles to fill the gaps in positive law in order not to
declare a non liquet." The Italian member, Ricci-Busatti, pointed out in one of his
statements that everything which is not forbidden by law is allowed," a principle
which strongly favours respect for the sovereignty of States.
The views of Anglo-Saxon members of the Advisory Committee gradually
prevailed, although both of them implicitly approved the view of their colleagues that
treaties and custom are not sufficient sources for judicial settlement, and that the
probability of non liquet must be excluded.
Lord Phillimore stressed that the above mentioned differences of opinion were due
to a large extent to the differences between Continental and English concepts of law.
Under the concept prevailing on the Continent the courts were forced to act at the
outset within strict limitations, then through fear of restricting them too much, they are
given complete freedom within these limits. In the English system the judge takes an
oath "to do justice according to law"."
His statement was basically correct because in Continental legal systems the judge
is apparently forbidden to create law. He has only to apply it, whereas in Anglo-Saxon
countries through the system of precedents the judge largely takes part in law-creating.
However, in the Advisory Committee of Jurists the r6les were somewhat replaced.
British and American members pleaded for a positivistic views, and their Belgian and
French colleagues advocated the naturalist concept of law which in fact implies the law
creating. But the discussion helped to reconcile opposing views, at least formally.

" Ibid., pp. 295-296.

84 Ibid., pp. 296-297.
* Ibid., p. 314.
6 Ibid., p. 315.
 36
Lord Philimore stressed in addition that the problem was whether the scope of the
rules to be applied by the Court should be expanded and if so, how should this be
done? Is it the duty of the judge to consider it? He came to the conclusion that all the
principles of Common Law are applied to international affairs and that: "They are in
fact part of international law"." His view was in fact confirmed by former arbitral
practice which we have already shown. His American colleague Root then put an
amendment to points 3 and 4 of Descamp's proposal. The - "rules of international law
as recognized by the legal conscience of civilized nations" were replaced by the
present-day well known formula - "the general principles of law recognized by
civilized nations". And - "international jurisprudence as a means for the application
and development of law", was to be extended by the wording: "the authority of
judicial decisions and the opinions of writers as a means for the application and
development of law". Points 1 and 2 concerning international law and international
custom remained then unchanged. But the initial paragraph was also amended.
According to the suggestion of Baron Descamps it stressed furthermore the hierarchi-
cal order of the sources: "The following rules are to be applied by the Court within
the limits of its competence, as described above, for the settlement of international
disputes; they will be considered in the undermentioned order:...""
To this compromise solution only Ricci-Bussatti objected to the successive order
of the sources, and he opposed the omission of principles of equity in the new para-
graph 3. He also denied the view that the opinions expressed by writers could be
considered a source of law to be applied by the court.89
Other members of the Committee adopted the Descamps-Root proposal. Lapradelle
however remarked that the words "civilized nations" in paragraph 3 were superfluous,
for "law implies civilization".' It is in fact a pity that this suggestion was not

n Ibid., p. 316.
* Ibid., p. 344.
SIbid, p. 332.
* Ibid., p. 335.
 37
adopted. It would have avoided much later criticism and misunderstandings concerning
the question which nations are civilized and which are not.
Lord Phillimore expanded on the wording of paragraph 3: "The general principles
referred to in point 3 were those which were accepted by all nations - in foro
domestico - such as certain principles of procedure, the principle of good faith and the
principle of res judicata, etc." Under the term of general principles of law he under-
stood "maxims of law"." His explanation of this formula is the most largely adopted
by doctrine and it corresponds to the practice of arbitral tribunals and of the Hague
Court itself. Such a conception of general principles of law is in fact unacceptable to
extreme voluntarists only, who obstinately advocate the dogma that a State cannot be
legally obliged by a rule which it did not accept expressly or tacitly.
In the final report of the Advisory Committee of Jurists there was no account of
the opposing views expressed in the discussion. The Committee however redrafted this
provision, which became Draft Article 35 of the Statute of the Court. It reads as
follows:
"The Court shall, within the limits of its jurisdiction as defined in Article
34, apply in the following order:
1. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;

2. international custom, as evidence of a general practice, which is

accepted as law;
3. the general principles of law recognized by civilized nations;

4. judicial decisions and the teachings of the most highly qualified publi-
cists of the various nations, as subsidiary means for the determination of the
rules of law."'

There was in this Draft Article still no mention of equity.

91 Ibidem.

92 Ibid., p. 680.
 38
During the session of the First Assembly of the League of Nations, the Sub-
Committee of the Third Committee examined the draft articles as proposed by the
Advisory Committee of Jurists. Some amendments were suggested, obviously inspired
by Albert de Lapradelle. At the Seventh Meeting of 1st December 1920, French the
delegate Fromageot suggested on alternative or paragraph 3. Instead of "general
principles of law recognized by civilized nations', he proposed the wording "general
principles of law and justice"." And that amendment was then adopted.
At the Tenth Meeting of 7 December, the Greek delegate Politis proposed a new
wording of paragraph 3: "The general principles of law and with the consent of the
parties, the general principles of justice recognized by civilized nations". After some
discussion Fromageot proposed to meet Politis' point by adding at the end of Article
35, the following: "This provision shall not prejudice the power of the Court to decide
a case ex aequo et bono, if the parties agree thereto"." This provision was finally
adopted the as new paragraph 2 of what became Article 38 of the Statute, and its
paragraph 1 was adopted as unchanged.
The general principles of law were thus finally dissociated from the so-called
"principles of equity", and these, by the new provision of paragraph 2, attained the
character of "positive rules of law". The settlement ex aequo et bono implies on the
other hand the power of the Court to decide a case on the basis of equity contra
legem, but only subject to express agreement of all disputing parties. This provision
did not however prove beneficial for the practice of the two Hague Courts. In its
practice of almost sixty years the Court has not been given the opportunity to decide
a single case ex aequo et bono.

Before closing this chapter it is important to say something about the drafting of
the Statute of the new International Court of Justice at the 1945 San Francisco
Conference. The new Statute became an integral part of the UN Charter. The text of

" Cf., League of Nations, The Records of the First Assembly, Meetings of the Commit-
tees, I, (Geneva 1920) p. 385.
" Ibid., p. 104.
 39
the Statute of the former Court of 1920 was adopted almost entirely, with some merely
formal modifications. They consisted in replaceing the names of the League of Nations
and its organs with names of the UN Organization and its organs.
Little attention was paid to the wording of Article 38 of the new Statute. A report
prepared by French professor Jules Basdevant stated correctly that: "Article 38 which
determines, according to its terms, what the Court "shall apply" has given rise to more
controversies in doctrine than difficulties in practice"." This conclusion refers first
of all to general principles of law, because there was little controversy if any, in
regard to conventions and customary law.
During the discussions at the First Committee of the Fourth Commisssion, dealing
with the International Court of Justice, the delegate of Chile noted that Article 38 did
not expressly refer to international law. His first proposal was to insert in point 3,
after the formula "general principles of law recognized by civilized nations", the
following wording: "...and especially the principles of international law."" After a
discussion this delegate changed his proposal, which was finally adopted. The initial
wording of paragraph I was unanimously redrafted, and it reads now as follows: "The
Court, whose function is to decide in accordance with internationallaw such disputes
as are submitted to it, shall apply:..." The rest of this Article, including ints point 3,
remained thus unchanged.'
This amendment is not of far reaching consequences. The application of interna-
tional law was implicit in the old formulation of Article 38, paragraph 1, in the three
main sources mentioned there and taken altogether.

Hence the deliberations of the Advisory Committee of Jurists in 1920 still remain
of importance for the determination of the meaning and scope of general principles of
law.

" Cf., The United Nations Conference on International Organization (UNCIO),

Documents, vol. XIV, p. 843.

9 Ibid., vol. XIII, p. 167.

9 Ibid., vol. XIII, p. 164.
 40
It is obvious that the formula "general principles of law recognized by civilized
nations" was a compromise reached between opposing views, and it was invented
during the debates. No member of the said Committee came with a ready-made
proposal in such a sense. But surprisingly enough, the qualification of this new main
source of international law corresponds to the previous arbitral practice.
It would now be curious to imagine the possible impact on doctrinal views if the
first proposal of Baron Descamps, or proposals of de Lapradelle and Fromageot, or
the Chilean proposal in 1945, were adopted. Any of these formulae would embarass
more the then existing doctrine than any definition of conventions or of international
custom. What kind of jurisprudence would the Court produce should it be authorized
to decide cases on the basis of such rules "as recognized by the legal conscience of
civilized nations"; or in accordance with "the law, justice and equity", or according to
"general principles of law and justice"? On what basis would the Court determine
"principles of justice"? Should the States abstain from bringing their suits to the Court
for its decision on such bases? All these questions are now matters for conjecture. But
they are of no importance for the positive international law as it is now in force.
However, even the formula "the general principles of law recognized by civilized
nations" such as adopted, raised many doctrinal controversies and conflicting interpre-
tations. Max Soerensen in his excellent presentation of sources of international law of
1946 thus stressed that the character of compromise reached in point 3 of Article 38
implies an inherent ambiguity obstructing any rational interpretation of that
stipulation." We do not share this pessimistic conclusion. But the fact remains that
introducing this particular source of international law does not help reconciling
antagonistic doctrinal views, simply because of the lack of agreement on the basic
concepts on that law.

" Cf., Max Soerensen, Les sources du droit international(Copenhague 1946) p. 125.
 41
10. A SURVEY OF PRACTICE OF THE TWO HAGUE COURTS

Doctrinal differences on the scope and nature of general principles of law have
continued until the present time. But as Jules Basdevant explained in 1945 for the
entire Article 38 of the Court's Statute, this has given rise to more controversies in
doctrine than difficulties in practice.
It is to be noted that in continuous practice since 1922, the former and the present
Hague Courts have never invoked Article 38, paragraph 1 c of the Statute in a direct
way. There was, however, reference to this provision in a negative sense, when the
Court intended to prove the lack of an applicable general principle of law.
The Court has sometimes invoked general principles of law indirectly. However,
except in the already quoted Advisory Opinion of 1951 on the Genocide Conven-
tion," in no other instances did it prove that a principle in question was "recognized
by civilized nations".
*

Let us first explain the practice of the former Permanent Court of International
Justice.
In its Advisory Opinion on the German Settlers in Poland of 10 September 1923,
the Court reaffirmed the principle of the unchangeable character of private rights
acquired:
"Private rights acquired under existing law do not cease on a change of
sovereignty. No one denies that the German Civil Law, both substantive and
adjective, has continued without interruption to operate in the territory in
question. It can hardly be maintained that, although the law survived, private
rights acquired under it perished. Such a contention is based on no principle
and would be contrary to an almost universal opinion and practice.""

The general principles of law are therefore referred here in a negative sense.

*Cf., supra, para. 6.

P.C.I.J. Series B, No. 6, p. 36.
 42
In its Advisory Opinion of 6 December 1923 on the Question ofJaworzina, issued
in the same year, the Court invoked the "traditional principle" ejus est interpretare
legem cujus condere.'0o
In its Judgment on the Polish Upper Silesia (question of jurisdiction) of 25 August
1925, in regard to the preliminary objection raised by one of its parties, the Court
stated:
"Whether this submission should be classified as an "objection" or as a
"fin de non-recevoir", it is certain that nothing, either in the Statute or Rules
which govern the Court's activities, or in general principles of law, prevents
the Court from dealing with it at once, and before entering upon the merits of
the case; for there can be no proceedings on the merits unless this submission
is overruled.""n

In its Advisory Opinion of 21 November 1925 concerning the Mossul case, the
Court invoked the "well-known rule that no one can be judge in his own suit"," or
in other words the general principle of law nemo judex in re sua.
In its Judgment on the Polish Upper Silesia (merits) case of 25 May 1926, the
Court has dealt again with the question of the right to property. Its conclusions were
the following:

"Germany undoubtedly retained until the actual transfer of sovereignty the

right to dispose of her property, and only a misuse of this right could endow
an act of alienation with the character of a breach of the Treaty; such misuse
cannot be presumed, and it rests with the party who states that there has been
such misuse to prove his statement."1os

In the same Judgment the Court said that the principle of respect for vested rights
was a principle which "forms part of generally accepted international law" and which
constituted the basis of the Geneva Convention among the parties and concerning the

10 P.C.I.J. Series B, No. 8, p. 37.

I0 P.C.I.J. Series A, No. 6, p. 19.
"' P.C.I.J. Series B, No. 12, p. 32.
'04 P.C..J. Series A, No. 7, p. 30.
 43
issues on dispute.'" It did not therefore refer even in these circumstances to the
general principle of law.

"Further, there can be no doubt that the expropriation allowed under Head
III of the Convention is a derogation from the rule generally applied in regard
to the treatment of foreigners and the principle of respect of vested rights. As
this derrogation itself is strictly in the nature of an exception, it is permissible
to conclude that no further derogation is allowed.""o

We shall later discuss the post-war development of general international law in

relation to the said principle of respect for vested rights.
In its Judgment on Chorzow Factory (Jurisdiction) case of 26 July 1927, the Court
resorted to the principle of estoppel in the following way:

"It is, moreover, a principle generally accepted in the jurisprudence of

international arbitration, as well as by municipal courts, that one Party cannot
avail himself of the fact that the other has not fulfilled some obligation or has
not had recourse to some other means of redress, if the former Party has, by
some illegal act, prevented the latter from fulfilling the obligation in question,
or from having recourse to the tribunal which would have been open to
him. "107

In its Advisory Opinion on the Interpretationof Greco-Turkish Agreement of 1926

issued on 28 August 1928, the Hague Court applied

"...the principle that, as a general rule, any body possessing jurisdictional

power has the right in the first place itself to determine the extent of its
jurisdiction...."

This is the well known general principle of the compdrence de la competence. In

the same case the Court stated, in addition:

s Ibid., p. 42.

" Ibid., p. 22.

'0 P.C.I.J. Series A, No. 9, p. 31.

10 P.C.I.J. Series B, No. 16, p. 20.
 44
"...for to accord to individual members of an organization constituted as
a corporate body any right to take action of any kind outside the sphere of
proceedings within that organization, would be clearly contrary to an accepted
principle of law..."'"

In the Chorzow Factory (claim for indemnity) Judgment on the merits of 13

September 1928, it was said that:

"...the Court observes that it is a principle of international law, and even

a general concept of law, that any breach of an engagement involves an
obligation to make reparation".'

In the same Judgment the Court considered the principle of restitutio in integrun
and exceptions to it, as follows:

"The essential principle contained in the actual notion of an illegal act -

a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals - is that reparation must, as far
as possible, wipe out all the consequences of the illegal act and reestablish the
situation which would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear, the award,
if need be, of damage for loss sustained which would not be covered by
restitution in kind or payment in place of it - such are the principles which
should serve to determine the amount of compensation due for an act contrary
to international law.""'

There is no doubt that the matter was here of a general principle of law, but the
Court for unknown reason abstained from applying it as such.
In its Judgment on the Free Zones of Upper Savoy and the District of Gex case of
7 June 1932, the Court said:

"Areservation must be made as regards the case of abuses of right, since

it is certain that France must not evade the obligation to maintain the zones

'" Ibid., p. 25.

n0 P.C.I.J. Series A, No. 17, p. 29.

u.Ibid., p. 47.
 45
by erecting a customs barrier under the guise of a control cordon. But an
abuse cannot be presumed by the Court. ""2

The matter was here also of the general principle of law concerning the abuse of
rights, which was not quoted by the Court again as such.
In its Judgment on the Legal Status of Eastern Greenland of 5 April 1933, the
Court again applied the principle of estoppel, rejecting the Norwegian claim to a part
of Greenland. It took into acount some treaties to which both Norway and Denmark
were parties, and concluded:

"...In accepting these bilateral and multilateral agreements as binding

upon herself, Norway reaffirmes that she recognized the whole of Greenland
as Danish; and thereby she has debarred herself from contesting Danish
sovereignty over the whole Greenland, and, in consequence, from proceeding
to occupy any part of it."" 3

It is noteworthy that the Court did not only abstain from invoking the general
principle of law, but it did not even make any mention of the principle of estoppel
which it in fact applied.
And in one of the last decisions of the former Permanent Court of International
Justice, in its Order on Interim Measures of Protection of 5 December 1939, in the
Electricity Company of Sofia and Bulgaria case, the Court first quoted Article 41 (1)
of the Statute"" and Article 61 (4)"' of its Rules in order to conclude:

"Whereas the above-quoted provision of the Statute applies the principle

universally accepted by international tribunals and likewise laid down in many
conventions to which Bulgaria has been a party - to the effect that the parties

112 P.C.I.J. Series A/B, No. 46, p. 167.

"' P.C.I.J. Series A/B, No. 53, p. 69.

14 This provisions reads as follows: "The Court shall have the power to indicate, if it
considers that circumstances so require, any provisional measures which ought to be
taken to reserve the respected rights of either party".
us "The Court may indicate interim measures of protection other than those proposed
in the request".
 46
to a case must abstain from any measures capable of exercising a prejudicial
effect in regard to the execution of the decision to be given and, in general,
not allow any step of any kind to be taken which might aggravate or extent
the dispute... "116

The matter was here again of an implicitely applied general principle of law.
Thus, only in one of referred cases did the Permanent Court mention "general
principles of law" as such. In other instances it referred to: a "principle and almost
universal opinion and practice"; or to a "wellknown rule"; or to "a general rule"; or
to "an accepted principle of law"; or to "a principle generally accepted in the jurispru-
dence of arbitration, as well as by municipal courts"; or to "a principle of international
law and even a general concept of law"; or to "the essential principle"; or to a
"principle universally accepted by international tribunals". In all the above instances
the matter, however, concerned of general principles of law in the sense of Article 38
(lc) of the Statute. The Court furthermore avoided by this references to analogy with,
and comparative analysis of municipal law, on which many authors insist.
It remains a mystery why the Court has so consistently abstained from direct
references to Article 38 (1c) of its Statute. In all the above cases there was no doubt
that the matter concerned some well-known general principles of law like these of
restitutio in integrum, or of the respect of vested rights, of estoppel, of nemo judex in
re sua, or of compdtence de la compdtence.
In all these instances in addition the Court did not leave any proof that it applied
these principles as the main source of international law, i.e. as rules only applicable
in the case. It left in fact the impression that the invocation of some of these principles
was a part of its judicial reasoning, corroborating its final decision based on other
sources, or on procedural provisions from its Statute and Rules.

The same conclusions can be drawn in regard to the post-war practice of the
International Court of Justice.

"6 P. C.I.J. Series A/B, No. 79, p. 199.

 47
In its Judgment on the Corfu Channel case on Merits of 9 April 1949, the Court
stated that the

"...indirect evidence is admitted in all systems of law, and its use is

recognized by international decisions". "

In its Advisory Opinion on Reparation of Injuries case on Merits of 11 April

1949, the Court said:

"Under international law, the Organization must be deemed to have those

powers which, though not expressly provided in the Charter, are conferred
upon it by necessary implication as being essential to the performance of its
duties. This principle of law was applied by the Permanent Court of Interna-
tional Justice to the International Labour Organization in its Advisory Opinion
No.13 of July 23rd, 1926 (P.C.I.J. Series B, No.13, p.18), and must be
applied to the United Nations."m

The matter here is of a "principle of law" of implied powers which cannot be

found in the cited Advisory Opinion of the Permanent Court. The Court has there
simply resorted to the functional or teleological interpretation of the Constitution of the
I.L.O.
In the Fisheries case of 18 December 1951, it was said:

"By "historic waters" are usually meant waters which are treated as
internal waters but which would not have that character were it not for the
existence of an historic title... (In the opinion of the United Kingdom)
Norway can justify the claim that these waters are territorial or internal
waters on the ground that she has exercised the necessary jurisdiction over
them for a long period without opposition from other States, a kind of
possessio longi temporis, with the result that her jurisdiction over these waters
must now be recognized although it constituted a derogation from the rule in
force. Norwegian sovereignty over there waters would constitute an excep-
tion, historic titles justifying situatios which would otherwise be in conflict
with international law."19

117I C.J. Reports 1949, p. 18.

" I.C.J. Reports 1949, pp. 182-183.

119 .C.J. Reports 1951, pp. 130-131.

 48
The Court did not however recognized the Norwegian claim on the basis of its
historic title, as the United Kingdom wished, but on the ground of existence of a
particular customary rule in its favour.
In its Advisory Opinion of 13 July 1954 concerning the U.N. Administrative Tribu-
nal, the Court was inter alia requested to answer: had the UN General Assembly the
right on any ground to refuse to give effect to an award of the said Administrative
Tribunal. The answer was negative for following reasons:

"This examination of the relevant provisions of the Statute shows that the
Tribunal is established, not as an advisory organ or a mere subordinate
committee of the General Assembly, but as an independent and truly judicial
body producing final judgments, without appeal within the limited field of its
functions.

According to a well-established and generally recognized principle of law,

a judgment rendered by such a judicial body is res judicata and has binding
force between the parties to the dispute... "120

There was here no question of a gap of law in this case. Article 2 in paragraphs
2 and 3 of the Statute of the Administrative Tribunal clearly states that its judgments
shall be final and without appeal, and that they shall state the reasons on which they
are based. Nevertheless, the Court largely resorted to the description of judicial organs
and their functions, as well as to the general principle res judicata, as to convincing
subsidiary arguments for its decision.
In its Judgment on the Preliminary Objections in the Right of Passage case of 26
November 1957 between India and Portugal, the Court concluded:

"...It is a rule of law generally accepted, as well as one acted upon in the
past by the Court, that, once the Court has been validly seized of a dispute,
unilateral action by the respondent State in terminating its Declaration, in
whole or in part, cannot divest the Court of jurisdiction."21

120 L C.J. Reports 1954, p. 53.

"2 I.C.J. Reports 1957, pp. 141-142.
 49
In Judgment on Merits of the same case of 12 April 1960, the Court abstained
from examining the existence of a general principle of law:

"As regards armed forces, armed police and arms and ammunition, the
finding of the Court that the practice established between the Parties required
for passage in respect of these categories the permission of the British or
Indian authorities, renders it unecessary for the Court to determine whether
or not, in the absence of the practice that actually prevailed, general inter-
national custom or the general principles of law recognized by civilized
nations could have been relied upon by Portugal in support of its claim to a
right of passage in respect of these categories."

The Court furthermore stressed that a particular practice (creating a particular

customary legal rule) "must prevail over any general rule".', Therefore, in this
very situation the general principle lex specialisderogat legi generaliprevented the use
of any other general principles of law, or even of general customary legal rules.
In the South West Africa cases, on the basis of Article 7 of the Mandate for South
West Africa of 1920,1- two former members of the League of Nations, Ethiopia
and Liberia, instituted the proceedings against South Africa. Their claim was that that
Mandatory Power has persistently violated its obligations assumed, and especially for
practicing apartheid on that Territory. South Africa objected to the jurisdiction of the
Court, in particular that the applicants and their nationals had no material interests in
that dispute.
By its Judgment of 21 December 1962 the Court dismissed all objections raised by
South Africa. With regard to the aforementioned argument the Court said:

122 I. C.J. Reports 1960, pp. 43-44.

'aArticle 7, paragraph 2 of the Mandate of 17 December 1920 for German South
West Africa reads:

"The Mandatory (The Union of South Africa) agrees that, if any dispute
whatever should arise between the Mandatory and another Member of the League
of Nations relating to the interpretation or the application of the provisions of the
Mandate, such dispute, if it cannot be settled by negociation, shall be submitted
to the Permanent Court of International Justice provided for by Article 14 of the
Covenant of the League of Nations."
 50
"The Respondent's contention runs counter to the natural and ordinary
meaning of the provisions of Article 7 of the Mandate, which mentions "any
dispute whatsoever" arising between the Mandatory and another Member of
the League of Nations "relating to the interpretation or the application of the
provisions of the Mandate". The language used is broad, clear and precise: it
gives rise to no ambiguity and it permits of no exception...""

However, during the second phase of the proceedings the majority within the
Court had changed. The new majority raised again the question of legal rights and
interests of the applicants and it proclaimed it to be a question of merits, although the
respondent himself did not rise it again. And quite surprisingly, by the Judgment of 18
July 1966 on the Second Phase, the Court found that Ethiopia and Liberia could not
be considered to have established any legal rights or interests appertaining to them in
the subject-matter of their claim. On that ground the Court decided to reject these
claims.
That new Judgment contradicted the previous one of 1962 which was resjudiciata
for all questions decided, and it in addition acted ultrapetitum. Among other reasons
in support of the new attitude of the changed majority of judges, the Court said:

"...Looked at in another way... the argument amounts to a plea that the

Court should allow the equivalent of an "actiopopularis", or right resident in
any member of a community to take legal action in vindication of a public
interest. But although a right of this kind may be known to certain municipal
legal systems of law, it is not known to international law as it stands at
present: nor is the Court able to regard it as imported by the "general prin-
ciples of law" referred to in Article 38, paragraph I (c), of its Statute."12s

Thus, the new majority disregarded the clear and unambiguous wording of Article
7 of the Mandate, seeking its additional confirmation in a faictitious general principle

24 I.C.J. Reports 1962, p. 343.

I.C.J. Reports 1966, p. 47, para. 88.
125
 51
of law. This is not only an example of a negative reference to a general principle of
law, but of its obvious abuse as well."'
In the North Sea ContinentalShelf case, the Federal Republic of Germany claimed
for a "just and equitable share" in the common area of the shelf belonging to it, to
Denmark and to the Netherlands. It stressed that "the claim for a just and equitable
share did not in any way involve asking the Court to give a decision ex aequo et bono
(which, having regard to the terms of paragraph 2 of Article 38 of the Court's Statute,
would not be possible without the consent of the Parties), - for the principle of a just
and equitable share was one of the recognized general principles of law which, by
virtue of paragraph 1 (c) of the same Article, the Court was entitled to apply as a
matter of the justicia distributiva which entered into all legal systems..."
In its Judgment of 20 February 1969, the Court did not engage in searching for
proof of the existence of that alleged general principle of law. That would be in fact
hard to uphold that the above mentioned principle exists in all advanced legal systems
of the world. It dismissed the German argument saying that its task in that proceedings
related essentially to the delimitation, and not the apportionment of the areas concer-
neg, or their division into converging sectors.',
In its Advisory Opinion of 12 July 1973 on Application for Review of Judgment
No. 158 of the United Nations Administrative Tribunal, the Court said:

"...it does not appear to the Court that there is any general principle of
law which requires that in review proceedings the interested parties should
necessarily have an opportunity to submit oral statements of their case to the
review tribunal. General principles of law and the judicial character of the
Court do require that, even in advisory proceedings, the interested parties

126Cf., for different aspects of this Case the following writings of this author
"Attempts to Codify Principles of Treaty Interpretation and the South-West Africa
Case", The Indian Journalof InternationalLaw (1968) (New Delhi) No.1, pp. 9-32;
"Preliminary Objections in the Hague Court's Contentious Procedure: A Re-exa-
mination", The IndianJournalof InternationalLaw (1970) No. 4, pp. 425-458; V.D.
Degan, L'dquitd et le droit international(La Haye 1970) pp. 227-235.
12 LC.J. Reports 1969, p. 21, para. 16.
12s ibid., p. 22, para. 18.
 52
should each have an opportunity, and on the basis of equality, to submit all
the elements relevant to the questions which have been referred to the review
tribunal. But that condition is fulfilled by the submission of written state-
ment..."1'

The Court has also upheld:

"92. It may not be easy to state exhaustively what is involved in the

concept of "a fundamental error in procedure which has occasioned a failure
of justice". But the essence of it, in the cases before the Administrative
Tribunal, may be found in the fundamental right of a staff member to present
his case, either orally or in writting, and to have it considered by the Tribunal
before it determines his rights. An error in procedure is fundamental and
constitutes "a failure of justice" when it is of such a kind as to violate the
official's right to a fair hearing as above defined and in the sense to deprive
him of justice...""o

The matter was therefore here of general principles of judicial procedure.

In its Judgment of 20 December 1974 in the Nuclear Tests case (Australia v.
France), the Court said:

"46. One of the basic principles governing the creation and performance
of legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in particular
in an age when the co-operation in many fields is becoming increasingly
essential. Just as the very rule of pactasunt servanda in the law of treaties is
based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested States may take
cognizance of unilateral declarations and place confidence in them, and are
entitled to require that the obligation thus created be respected.""'

By this statement, engagements assumed by unilateral acts were placed in all their
aspects on the same level as obligations undertaken by treaties.
In its Advisory Opinion of 16 October 1975 on Western Sahara, the Court
resorted to the concept of "terra nullius" as the main condition for its "occupation"

I.C.J. Reports 1973, p. 181, para. 36.

* Ibid., p. 209, para. 92.

I. C.J. Reports 1974, p. 268, para. 78.

 53
and consequently of the legitimate acquisition of the territory in question. The Court,
however, avoided stating whether the question was of a general principle of law
concerning acquisition of sovereignty over a territory, or a customary rule of general
international law. Its conclusion was however the following:

"80. Whatever differences of opinion there may have been among jurists,
the State practice of the relevant period indicates that territories inhabited by
tribes or peoples having a social and political organization were not regarded
as terra nullius. .. "12

All the cases mentioned confirm the conclusion of Max Soerensen of 1946, on the
subsidiary character of general principles of law in relation to the two other main
sources: treaties and custom. This can be taken as accurate for at least the practice of
the two Hague Courts. The present level of development of customary law and of
conventional relations between States scarcely make necessary the application of these
principles as a distinct source, that is to say in cases of genuine gaps (lacunae) in
customary and conventional international law. In addition, the maxim lex specialis
derogat legi generali, which is itself a general principle of law, prevents a more
frequent use of these principles in judicial practice. On the other hand, the Court was
sometimes eager to resort to general principles in order to confirm or verify its judicial
considerations and motives within its large discretionary power.
Paradoxically enough, the scarcity of practice of the two Hague Courts in this
respect does not the prove negative allegations of positivists in regard to the very
existence of general principles of law. On the contrary, it indirectly proves the
unsoundness of the basic positivistic assertion that every customary rule must be
consented to by the respective States, or at least by all disputing parties. As shall be
seen, this condition proved correct only in regard to particular customary rules, which
are to a certain degree genuine pacta tacita.

132L C.J. Reports 1975, pp. 38-39, paras. 79, 80.

 54
But when the question is of general customary rules, and especially of jus cogens,
the Hague Court applies them more often than not such as they are. It does not enter
into evidence of opiniojuris, nor does it endeavour to prove their acceptance even by
the parties to the dispute in question. If it is not the case, and if the Court really
follows in all instances strict positivist requirements for the existence of general
customary rules, it would then be faced with the lack of many imperative legal rules
which are a kind of jus necessitatis for the maintenance of international peace and
security. And in these circumstances the Court would much more often be compelled
to refer to general principles of law as an autonomous source of international law.
However, in spite of the scarcity of this practice, it would be difficult even for the
Hague Court to pretend that general principles of law became an outmoded and
obsolete source of international law. The international legal order would without them
lose its quality of a system of legal rules, and the Court would be faced, at least on
some occasions, with the problem of non liquet.

11. MEANING OF THE QUALIFICATION "RECOGNIZED BY CIVILIZED

NATIONS"

It is likely that the general principles of law are repugnant to many modern
scholars simply because of their qualification in Article 38 (1c) of the Hague Court's
Statute, of being "recognized by civilized nations". It is therefore a pity that the
Advisory Committee of Jurists did not accept already in 1920 the observation by
Lapradelle that law implies civilization.133 Probably only the lack of time and
engagement in more important political issues prevented the San Francisco Conference
of 1945 redrafting this dubious formulation.
Since 1920 the international community has undergone a profound evolution. After
the process of decolonization has been accomplished, practically all nations are
organized in States, and statehood must to-day be accepted as a mark of civilization.
A literal interpretation of point c) in Article 38, paragraph 1 would nowadays be

"' Cf., supra, para. 11.

 55
unacceptable simply because no division of nations or States into "civilized" and "non-
civilized" is admissible.
But if this criterion is construed on a rational basis it should still be of some use.
Some civilized nations have in recent history experienced totalitarian r6gimes and have
been subdued to legal orders which cannot by any criteria be qualified as being
"recognized by civilized nations".
The national-socialist penal legislation has refused some well-known generally
recognized principles such as nullun crimen sine legem and nulla poena sine legem.
These principles were substituted with some "new" ones: that of nullum crimen sine
poena, i.e. that no crime must remain unpunished, and the notorious "sound popular
feeling*. Their application opened the door for the national-socialist judge to resort
largely to analogy in criminal proceedings, which is otherwise prohibited in penal law,
until the undisguised claim that Hitler's political speeches were a direct source of law
for nazi judges.
After the newly established national-socialist majority in the Senate of the Free
City of Danzig in 1935 had adopted two legislative decrees of that kind, the Council
of the League of Nations requested from the former Permanent Court of International
Justice an advisory opinion on the question whether the said decrees were consistent
with the Constitu-tion of Danzig. According to that Constitution the Free City was a
Rechtsstaad (State governed by the rule of law).
In its Advisory Opinion of 4 December 1935 on Danzig Legislative Decrees, the
Court issued a negative answer to that question. It stated the following reasons:

"...The rule that a law is required in order to restrict the liberties pro-
vided for in the Constitution therefore involves the consequence that the law
itself must define the conditions in which such restrictions of liberties are
imposed. If this were not so, i.e. if a law could simply give a judge power to
deprive a person of his liberty, without defining the circumstances in which
his liberty might be forfeited, it could render entirely nugatory a provision
such as that contained in Article 74 of the Constitution.'" But... the
decrees of August 29th, 1935, so far from supplying any such definition,

That provision provided that limitation or deprivation of the liberty of the person
134
may not be imposed by pulic authority save in virtue of a law.
 56
empower a judge to deprive a person of his liberty even for an act not
prohibited by law, provided that he relies on the fundamental idea of a penal
law and on sound popular feeling. These decrees therefore transfer to the
judge an important function which, owing to its intrinsic character, the
Constitution intended to reserve to the law so as to safeguard individual
liberty from any arbitrary encroachment on the part of the authorities of the
State. "13

This moderate but profound critique of national-socialist legislation indirectly

confirmed the truth that the so-called principles of "sound popular feeling" and the
like, were not principles of law "recognized by civilized nations".
The foregoing qualification from Article 38 (1c) of the Court's Statute should be
reasonably interpreted to-day in the sense that the matter is of general principles of law
- which are common to advanced legal systems of the world, regardless pf of the
particular form of civilization. In support of this interpretation Article 9 of the Statute
of the Court is to be invoked, which provides that the body of elected judges forming
the Court should assure as a whole - "the representation of the main forms of civiliza-
tion and of the principal legal systems of the world."
The present composition of the International Court of Justice fulfils this require-
ment from Article 9 of its Statute. Therefore, as Michel Virally stated: "anything
which all the judges of the Court are prepared to accept as a "general principle of law"
must in fact be "recognized by civilized nations"."It is nevertheless not necessary,
as Wolfgang Friedman has stressed, that the general principles should be found to
exist in identical form in every legal system of civilized law. But, as comparativist
Gutteridge alleged, its application must not be doing violence to the fundamental
concepts of any of those systems. 3 7

a3 P.C.I.J. Series A/B, No. 65, p. 56.

' Cf., "The Sources of International Law" in Max Soerensen, ed., Manual of Public
InternationalLaw (London 1968) p. 146.
m17Cf., Wolfgang Friedmann, "The Uses of "General Principles" in the Development
of International Law", American Journal of InternationalLaw (1963) (AJIL), No. 2,
pp. 284-285.
 57
G.J.H. van Hoof raised another question: does the majority rule apply here, or is
unanimity required? It is according to him imaginable that members of the majority
feel unable to accept the existence of a general principle in the face of a dissenting
minority. If it is remembered that a quorum of nine judges is sufficient to constitute
the Court, in theory at least a decision that a general principle exists can be taken by
five out of the fifteen judges."'
These "theoretical considerations" should be the basis for some discussion of
judicial reasoning and judicial discretion in general.
It must be admitted that if the text of a judgment or of an advisory opinion clearly
reflects disagreement among judges in regard to the existence of a general principle of
law, that could inspire research. The a arguments of the majority and of dissenting
judges should be carefully analyzed and compared. Only if the minority judges offer
convincing arguments that an alleged general principle violates the fundamental
concepts of a particular system of law, would a conclusion be reached that the
majority was wrong, and that such a general principle of law does not exist at all.
But the scarcity of judicial practice in the use of this particular source of interna-
tional law proves the truth that the facts are somewhat different. A difference among
judges on the very existence of a general principle of law can be supposed, but it will
hardly be reflected in the text of the decision. In such a dubious case the majority will
simply abolish this line of argument and it will choose some other motive for cor-
roborating its verdict.
Hardly ever is a particular form of civilization to which a judge belongs decisive
for his alignment in particular cases. During all phases of proceedings all judges
gradually form their opinions on the issues of facts and of law. That depends to a
great extent on the arguments of the parties, and perhaps on some other motives that
cannot for the most part be verified. Only after all the judges take a stand and a
majority opinion is crystallized, will the majority, as well as minority judges, search

138 Cf.,G.J.H. van Hoof, Rethinking the Sources of InternationalLaw, (The Hague
1983) p. 142, n. 580.
 58

for legal arguments in support of their positions. The question of the existence of a
general principle of law will seldom decide the case.
In the cited South West Aftica cases, on the one side there were united, among
others, the Australian and British Judges, Sir Percy Spender and Sir Gerald
Fitzmaurice, and Bohdan Winiarski from then communist Poland. On the opposite side
were Philip Jessup from the United States, Koretski from the Soviet Union and Judge
ad hoc Sir Louis Mbanefo from the Nigerian Ibo tribe. Decisive in that case were not
the various forms of civilization of the judges, but the issue: whether to consider the
population of the South-West Africa as a rather unwanted accessory of the Mandate
Territory on which South Africa had already in 1920 acquired some "vested" rights;
or to condemn South Africa for manifest and persistent violations of the international
obligations it assumed.

C. The Content and Scope of General Principles of Law

12. GENERAL PRINCIPLES AS A PREREQUISITE OF THE EXISTENCE OF

A LEGAL ORDER

Our conclusion on the second-rate r6le of general principles of law as the main
and autonomous source in the deliberations of the Hague Court do not encompass the
whole truth of their importance in the international legal order. These conclusions
should not lead to any attempts at eliminating them from the sources of that law and
of the law in general.
In order to get to the core of the problem of this particular source it seems
necessary to return to some doctrinal controversies and to consider them carefully once
again.
Naturalist schoolars interpreted the adoption and inclusion of this particular source
in Article 38 of the Statute of the Hague Court as the victory of their teaching over
much hated positivism. In general principles of law they find objective legal rules,
based on reason, not dependent on the consent of States, but standing above any
positive law.
 59
Their opponents do not recognize in short the existence of perpetual, everlasting
and immutable legal rules of any kind. And this is their dogma. Those among them
who admit that general principles are one of the sources of international law, overlook
their foundation in reason. What is decisive for them is that, being a part of municipal
law, they are rules of positive law applicable to international relations. And finally,
extreme voluntarists do not credit these principles with any quality of a source of law
unless they are incorporated into treaties or custom. But if that is the truth, they are
not a distinct source of international law at all.
The Hungarian writer Geza Herczegh in his remarkable book on general principles
of law consistently advocated the positivistic view. According to him, general prin-
ciples are not a source of international law, because the rules of international law
come into being only as a result of the agreement of the wills of States, and never in
the form of principles of municipal law. He admits nevertheless the application of
principles of municipal law in the settlement of international disputes by way of
analogy, but only if treaties or customary rules so provide. He, in addition, acknowl-
edges their impact on the evolution of international law in general."' Still in a
passage of his book he incidentally makes mention of the so-called "logical precondi-
tions of law", but does not dare to elaborate nor to enumerate them.14o
And exactly in these "logical preconditions of law", which can also be named the
principles which are the prerequisite of the existence of a legal order, we see the
essential part of general principles of law. These principles are thus not only positive
rules, common to the majority or to all municipal legal orders. They are common to
all law: municipal, international, transnational and supranational. Some of these
principles are not peremptory legal rules at all. As precepts of very general character
they can obtain in different times and in various types of legal relationship a content
which is not always identical.

n3 Cf., Geza Herczegh, General Principles of Law and the InternationalLegal Order
(Budapest 1969) pp. 97-100.
m4Ibid., p. 78.
 60
If one of these general principles has undergone transformation into customary
law, or if it is codified or confirmed by a treaty, it does not for this reason lose its
character as a general principle of law. For instance, the basic principle pacta sunt
servanda is common to all legal systems of whatever kind. It is deeply rooted in the
practice of States and is accepted by them as a customary rule of international law. It
has been confirmed in addition in most important political conventions, and codified
by all conventions on the law of treaties. But it still remains a general principle of
law, although one should not make the mistake of qualifying it as a general customary
rule, or citing it as Article 26 of the 1969 Vienna Convention on the Law of Treaties.
This very fact was usually overlooked by positivists who neglect the character as a
general principle of law of any rules which they believe have been transformed into
customary or conventional law.
In order to disclose the essentialness of this particular source of international law,
it seems necessary to trace these principles in customary law, and above all in
codification conventions of some branches of general international law. What is
decisive in this research is to examine, whether this codification would be possible and
would international law keep its character as a system of legal rules, if some of these
general principles were omitted. But it can be surprising that some of these codified
general principles have never attained a necessary ingredient of customary rules: State
practice confirming their existence.

13. STATE SOVEREIGNTY v. GENERAL PRINCIPLES OF LAW

The assumption of the existence of some general principles of law as the prerequi-
site for the operation of the international legal order, raises the question of their
relationship with State sovereignty. For voluntarists it is a crucial question, because,
as we stressed, they simply do not recognize general principles of law which have not
been consented to by States.
In this respect we shall first refer to the rules of arbitral and judicial procedure.
As we said, these rules were codified by the Hague Conventions for the Pacific
Settlement of International Disputes of 1899 and 1907. The same basic principles can
 61
be detected in the Statute and Rules of the Hague Court, in the Rules of the Court of
Justice of the European Communities, in Articles 38 to 46 of the European Convention
for Protection of Human Rights and Fundamental Freedoms concerning its Court
which is based at Strasbourg, in the statutes of all administrative tribunals of inter-
national organizations, etc.
If a judicial or arbitral organ in exercising its functions egnores one or more basic
procedural rule it will jeopardize the legality of its judgment and its own character as
a judicial body. Therefore, general principles of law of that kind are absolutely
obligatory as legal rules for all judicial agencies of international or of whatever other
character.
The question is now: do these procedural principles, being rules of positive law,
equally bind States, and do they restrain to any extent their sovereignty. The answer
is negative. Because general international law does not impose on States arbitral or
judicial settlement of any kind of disputes, they can bring their case to any of these
organs by their will, but they are not legally obliged to do that. Hence, the general
procedural principles do not affect the principle of free choice of means of settlement.
On the other hand, the conclusion of a treaty implies the will of all its parties to
create legal obligations in accordance to its terms. Thus their duty to respect in good
faith all their obligations undertaken. If all parties to an agreement had something else
in mind, they did not conclude an agreement governed by law. To legal relations
created by a treaty applies the everlasting and immutable legal rule of pacta sunt
servanda, which has been in force from time immemorial. It is valid on all treaty
obligations consented to by the free will of all their parties, or in other words, on all
treaties which are free from vices of consent. Such vices invalidating a treaty obliga-
tion are error, fraud, corruption, coercion, etc. They also fall into the domain of
general principles of law.
It is true that the everlasting legal rule of pacta sunt servanda did not prevent
States from pledging false commitments with a hidden intent not to observe their
obligations assumed. However, exactly the rule pacta sunt servanda invests other
parties, who did act in good faith, with the right to require implementation of these
 62
obligations. And the violation of this duty results in the legal responsibility of the
party in question.
The foregoing is true subject to the condition that the treaty in question was
concluded by the free will of all its parties. The important exception to this principle
were certain treaties of peace, which were imposed on losing parties after a war.
However, as Oppenheim and Lauterpacht stated for the period prior to the 1919
Covenant of the League of Nations, the exception to this rule - "was a necessary
corrolary on the admissibility of war as an instrument for changing the existing
law". 141
The 1969 Vienna Convention on the Law of Treaties does not allow this excep-
tion. But in Article 75 it states:

"The provisions of the present Convention are without preju-dice to any

obligation in relation to a treaty which may arise for an aggressor State in
consequence of measures taken in conformity with the Charter of the United
Nations with reference to that State's aggression."

And some other provisions from the said Vienna Convention do not consist of
provisions which are either of declaratory, of crystallizing or of generating effect of
customary rules. By the term customary legal rules is understood here some general
practice of States accepted by them as law (opiniojuris).
Many of these rules consist in the rationalization of general principles of law,
which were adapted to requirements of international agreements, and nothing else. The
rules of this kind are not a lesxferenda, i.e. the rules of this Convention which are an
element of progressive development of general international law, and which were
initially obligatory for the parties to the Convention only. The rules in question are
codified positive legal rules which were already in force at the time of the adoption of
the Convention, as being rules of general international law.
The subtle difference between existing general customary rules and the rationaliz-
ation of general principles of law, which both constitute general international law, can

"1 Cf, Oppenheim & Lauterpacht, InternationalLaw, vol. I, Eighth Edition (London
1957) pp. 24-25.
 63
be easily discerned in the commentaries on the draft articles of the law of treaties, by
the International Law Commission. The Commission resorted to all kinds of evidence
in order to prove at least previous practice of States, as one of the elements of the
presumed existence of a general customary rule in question. Lacking practice, it
referred to relevant judicial decisions. But there were draft articles on which no
evidence of customary law in force existed of any kind.
Thus, the Commission in its Commentary said:

"In municipal law error occupies a comparatively large place as a factor

which vitiates consent to a contract. Some types of error found in municipal
law are, however, unlikely to arise in international law".14

Still it was able to quote four cases from the practice of the two Hague Court.

With regard to fraud invalidating the treaty, the Commission said:

"Fraud is a concept found in most systems of law, but the scope of the
concept is not the same in all systems. In international law, the paucity of
precedents means that there is little guidance to be found either in practice or
in jurisprudence of international tribunals as to the scope to be given to the
concept... .143

It was similar to corruption '", which the Commission has distinguished from
fraud, but in regard to which it did not find any evidence for the existence of a general
customary rule which might satisfy rigorous voluntaristic requirements. But regardless
of evidences on their customary bases in the concrete practice of States, the matter was
of well-known general principles of law in force, which nobody could deny as being
rules of positive law.

142 Cf., Reports of the International Law Commission, on the second part of its
seventeenth session 3-28 January 1966 and on its eighteenths session 4 May - 19 July
1966, (No. 9(A)/6309/Rev. 1), p. 72.
14 Ibid., p. 73.
144 Cf., ibid., p. 74.
 64
It would be excessive to pretend that the objective rules of posi-tive law of this
kind restrict the free will of sovereign States. A State may abstain from concluding a
treaty, and then the principle pacta sunt servanda will not restrain its freedom of
action in the related domain. Even more than that, all parties to a treaty which is
already in force, can at any moment by unanimous decision modify or abrogate it, and
then the principle pacta sunt servanda will cease to operate. And even the opposite
general principle of law - clausula rebus sic stantibus, as an exception to respect for
the pacta sunt servanda principle may on rare occasions lead to abrogation of a
treaty.
And most vices affecting the authenticity of the expressed will of the parties
(error, fraud and corruption, but not coercion), do not automaticaly nullify the treaty
or a unilateral act. The party concerned must invoke them of its free will in order to
make the treaty void. And this is almost the same in all legal systems
In order to make more clear the nature of general principles of law in the law of
treaties, and in other branches of international law, we must again refer to some
earlier doctrinal views.
As we said, Vattel distinguished the so-called voluntary law, which is based on
preswned consent of Nations, from customary law properly called, which is based on
their tacit consent.
A well known Italian positivist of this century Dionisio Anzilotti was of almost the
same view. He asserted with good reason that a treaty does not consist of its written
provisions only. Logical implications and necessary logical consequences of its written
provisions also form a part of them. The will of parties to comply with a written norm
or with a complexity of such norms, suggests also their will to comply with logically
implied norms, in the absence of which written provisions remain senseless. Anzilotti
called those implied norms as "constructive rules", which are according to him
essential for any legal order. I'

s Cf., Dionisio Anzilotti, Corso di Diritto internazionale, vol. I, 4th ed. (Padova
1955) p. 67. However, this author did not encompass these "constructive rules" under
the heading of general principles of law. They are for him parts of a treaty as a formal
source of international law. On the contrary, he interpreted Article 38(lc) of the
 65
Lord McNair was of the same view at least in regard to the basic norm of pacta
sunt servanda:

"In every uncodified legal system there are certain elements and
universally agreed principles for which it is almost impossible to find specific
authority. In the Common Law of England and the United States of America,
where can you find specific authority for the principle that a man must
perform his contracts? Yet almost every decision on a contract presupposes
the existence of that principle. The same is true of international law. No
Government would decline to accept the principle pacta sunt servanda, and
the very fact that Governments find it necessary to spend so much effort in
explaining in a particular case that the pactum has ceased to exist, or that the
act complained of is not in breach of it, either by reason or of an implied
term of some other reason, is the best acknowledgment of that principle...".
146

There exist other "constructive rules" or more precisely, general principles of law,
which equally apply to agreements and contracts of any kind whatsoever, whether they
are governed by the municipal law of a State, or in question are "transnational
contracts", or genuine international treaties. They are such as: pacta tertiis nec nocent
nec prosunt, or inadimplendi non est adimplendwn. They are, in addition, the already
mentioned vices of consent of parties which may invalidate the agreement like error,
fraud, corruption and coertion.
There exist general principles of law which do not apply to agreements only, but
to other legal situations as well. That is the principle of good faith, or that nemo plus
juris in alium transferrepotest quam ipse habet, or prescription, etc.
All these general principles of law operate in international law notwithstanding the
specific will of States. They are genuine rules of positive law, regardless of the
consent granted to them by sovereign States. In fact, any legal relations between States
or legal relations between whatever other kind of persons who are equal in rights, are
impossible if these principles do not operate as rules of positive law.

Statute of the Court as an authorization given to it to resort to analogy. Ibid., pp. 106-
109.
146 Cf., Lord McNair, The Law of Treaties (Oxford 1961) p. 493.
 66
However, as we stressed, the above general principles do not considerably restrain
the freedom of action of sovereign States.
In this regard they is some difference with general principles of law concerning
State responsibility. The International Law Commission is involved now in the task of
codification of this important branch of international law. Draft articles so far adopted
are deeply imbued with the theory of responsibility from the doctrines of civil and ad-
ministrative law. As such they assimilated principles from legislation and judicial
practice, mostly from the law of the European continental contries."
It would be wrong to pretend that in this domain the Commission has blindly
followed the analogy with municipal civil and administrative law. All relevant
provisions of general international law and international practice were also included.
And the basic legal provisions borrowed from municipal legal systems were carefully
adjusted to the necessities of inter-State relations. These are, for instance, rules
concerning the conduct of organs of an insurrectional movement, or rules on interna-
tional crimes, and international delicts, which do not exist as such in municipal law.
International crime is qualified as an internationally wrongful act resulting from
the breach of a State of an international obligation so essential for the protection of the
fundamental interests of the international community that its breach is recognized as
a crime by that community as a whole. Such crimes are inter alia, a serious breach of
an international obligation of essential importance for the maintenance of international
peace and security, such as that prohibiting aggression; or for safeguarding the right
of self-determination of peoples; or for safeguarding and preservation of the human
environment.
All these principles are not present in modern civil law, and still less were they a
part of Roman law. Nevertheless, the conventional provisions in force and customary
rules consented to by States, would certainly not be a sufficient basis for such a broad
and detailed work on the codification of State responsibility.

147Cf., Yearbook of the InternationalLaw Commission (1980) Volume II, Part Two,
pp. 30-34.
 67
In some other draft articles already adopted by the Commission, general principles
of law common to every legal order are easily perceptible. These are for instance,
circumstances precluding wrongfulness of an act of State: consent given by State-
victim to such an act; countermeasure (i.e. legitimate reprisals); force majeure and
fortuitous event; distress, necessity, and self-defense. Most of these exceptions are
rationalized general principles of law, which have largely been assimilated in inter-
national law before this codification.'"
Unlike most other above mentioned general principles of law, there is little doubt
that at least principles relating to State responsibility really affect the freedom of action
of sovereign States. They in fact outlaw irresponsible conduct of Governments in their
mutual relations.
Exactly the same can be inferred only in regard to two provisions from the 1969
Vienna Conventions on the Law of Treaties. These are Articles 53 and 64, invalidating
and terminating a treaty conflicting with a peremptory norm of general international
law. 149
The legal validity of all above general principles of law depends on the fact of the
very existence of an international legal order. The existence of such an order, having
at least some similar features with municipal legal orders in modern States, is a
precondition for an organized international community of States, as well as for the
maintenance of international peace and security.
There are some experts in international political relations who with convincing
arguments deny the existence of such an integrated international community of States.
If their arguments are correct, all rules on State responsibility and on jus cogens are

1' There is a plenty of evidence that States in their treaties, other instruments and in
diplomatic correspondence, largely resorted to these concepts as to rules of positive
law. The same was with international judicial and arbitral practice. See especially,
Yearbook of the InternationalLaw Commission (1978) Volume II, Part One, pp. 61-
227.
" France has not so far ratified this Convention because it does not recognize the
existence of jus cogens in international law. Of the same view are some prominent
international lawyers, as for instance Charles Rousseau, Droit internationalpublic,
tome premier (Paris 1971) pp. 150-151.
 68
little more than a fake and artificial imagination of lawyers, largely based on analogy
with principles borrowed from municipal law. In that case all these draft articles, as
well as Articles 53 and 64 from the 1969 Vienna Convention, have little in common
with the reality of inter-State relations, even if a future Convention on State responsi-
bility should formally enter into force.
The above problems are essential for the legal nature of international law as a
whole, and maybe even of all law. The explanation in this regard of J.L. Brierly will
probably not satisfy everybody, but is still worthy of quotation:

"...The ultimate explanation of the binding force of all law is that man,
whether he is a single individual or whether he is associated with other men
in a state, is contrained, in so far as he is a reasonable being, to believe that
order and not chaos is the governing principle of the world in which he has
to live."1so

His conclusion is the result of a painstaking research and comparison of naturalist

and positivists teachings throughout centuries. It will perhaps at least partly explain the
feature of general principles of law as one of the sources of positive international law.

14. THE SO-CALLED "PRINCIPLES OF INTERNATIONAL LAW"

In order to make more clear the substance of general principles of law, we shall
discuss now a kind of legal principles chategory are often confused with them, but
which do not strictly speaking fall under this heading.
This matter relates to "general principles of international law", or of "legal
principles of universal application", or of "fundamental rights and duties of States".
Different appelations cover the same substance. In question are very broad legal
principles, which are supposed to be binding on all States and on all other international
persons as peremptory norms of general international law, i.e. jus cogens. They are
in fact not "general principles of law recognized by civilized nations". Where they are

5o Cf., J.L. Brierly, The Law of Nations, Sixth Edition (Oxford 1963) p. 56.
 69
in force as positive legal rules in a given period of time, they are a part of general
customary international law.
These principles originate from naturalist teachings. The theory of natural law
assimilated States with individual human beings in a society. According to this
teaching, the same as natural persons are entitled to some inherent and absolute rights,
so all States being members of the international community possess some inalienable,
indivisible and unassignable rights, simply because they exist.
Although most writers disagree in enumeration, the most widespread is the
division into five fundamental rights of all States: (i) the right to existence or preserva-
tion; (ii) the right to independence or sovereignty; (iii) the right to juridical equality
or equality in law; (iv) the right to be respected; and (v) the right to international
communications.'s A much larger number of specific rights are derived from these
fundamental rights, depending of the stage of development of positive international law
in a given time.
Being contrary to positivism this doctrine did not exert its influence on the legal
relations of States during the nineteenth century. If there was any impact, the spirit of
that doctrine was distorted and abused. Thus, on the basis of the fundamental right to
self-preservation, the right of States to wage wars for territorial aggrandizement or
even for the subjugation of others, and especially of "non-civilized" States and peoples
was claimed. The policy of the balance of power, which implied territorial compensa-
tions in order to avoid wars, maintained relative stability in the relations of the
European powers.
In international relations stress was at that time placed on the subjective rights of
those States which were recognized as members of the community of "civilized"
States. No legal duties of States should be presumed from the necessity of the mainten-
ance of the international community. And the rejection of legal duties of this kind
remains as a mark of distinction of voluntaristic teachings until the present day. The

' Cf., Alphonse Rivier, Principes du droit des gens, ler vol. (Paris 1888) p. 257;
Juraj Andrassy, Medjunarodno pravo [International Law], 6th ed. (Zagreb 1976) pp.
80-91. See a survey of different lists of fundamental rights of States in Paul Fauchille,
Traitd de droit international public, tome ler, Ire parties (Paris 1922) pp. 395 et seq.
 70
logic of voluntarism is therefore hostile to any concept of fundamental rights and
duties of all States.
However, because the policy of balance of power could not preserve mankind
from the disasters of the First World War, which hurt above all Europe and its
population, the international community wished consciously to replace it during the
Versailles Peace Conference of 1919, with a collective security system.
The first aim of the Covenant of the League of Nations of 1919 was the preven-
tion of all future wars, and to this end, the organization of collective sanctions against
these member States which infringe their legal obligations assumed by it. And thus the
new objective, which was the maintenance of international peace and security, required
new far-reaching legal obligations of States, restricting their freedom of action in
discharging their particular interests.
Article 10 of the Covenant of the League of Nations, which was designed to be
one of cornerstones of the new collective security system, provided as follows:

"The Members of the League undertake to respect and preserve as against

external aggression the territorial integrity and existing political independence
of all Members of the League..."

This was not yet a far-reaching obligation. It was confined to the relations of
Members of the League, i.e. between parties to the Covenant. However, this provision
already revealed the fact that worldwide maintenance of peace and security requires
the recognition and preservation of two basic rights of States: to their territorial
integrity and to their independence.
Since that time teachings on the fundamental rights and duties of States gathered
momentum. Declarations on this subject-matter by various non-governmental bodies
have not ceased to multiply ever since 1916.152. Their proclaimed principles have

15 Cf., "Declaration of the Rights and Duties of Nations" adopted by the American
Institute of International Law at its Washington session on 6 January 1916, American
Journal of International Law (1916) p. 124; "Projet d'une D6claration des droits et
devoirs des nations", adopted by l'Union Juridique internationale, on 11 November
1919, Le Fur & Chklaver, supra, op. cit., n. 34, pp. 89-90. In June 1932 the
 71
however, not yet been accepted as rules of positive international law. At the time of
their adoption they were not more than a lexferenda. But nothing could prevent the
transformation of these principles first into certain treaty provisions of a regional
character.
The first was the Convention on Rights and Duties of States concluded within the
Panamerican Union in Montevideo in 1933. Chapter III of the "Charter of Bogoth" of
1948 was entitled "Fundamental Rights and Duties of States".
The idea of the same rights and related obligations was displayed in Principles of
the United Nations, laid down in Article 2 and in Article 1(2) of the 1945 UN Charter.
These principles were elaborated in the "Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations". It was approved by consensus in the General
Assembly on 24 October 1970.
That Declaration announces and elaborates the following seven principles: (i) The
principle that States shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the purposes of the United Nations; (ii) The
principle that States shall settle their international disputes by peaceful means in such
a manner that international peace and security and justice are not endangered; (iii) The
principle concerning the duty not to intervene in matters within the domestic jurisdic-
tion of any State, in accordance with the Charter; (iv) The duty of States to co-operate
with one another in accordance with the Charter 153;(v) The principle of equal rights
and self-determination of peoples; (vi) The principle of sovereign equality of States;

Committee for Codification of the International Law Association approved a - "Projet

de Ddclaration sur les donndes fondamentales et les grands principes du Droit interna-
tional de l'avenir", proposed by Alejandro Alvarez, ibid., pp. 102-111.
u1 Because its breach does not produce international responsibility, this "duty" is
therefore formulated rather as an aim than as a precise legal obligation. States are for
instance not legally obliged to establish and maintain diplomatic and consular relations
one with another. Their economic, social, cultural, technical and other co-operation
depends of their mutual agreements, which they are not bound to conclude.
 72
and (vii) The principle that States shall fulfil in good faith the obligations assumed by
them in accordance with the Charter.
And finally, the Helsinki Final Act of 1975 in its "Declaration on Principles
Guiding Relations between Participating States" restates the Principles of the United
Nations, and endorses three principles as separate. The matter is, in sequence, of
principles on: (III) inviolability of frontiers; (IV) territorial integrity of States; and
(VII) respect for human rights and fundamental freedoms, including the freedom of
thought, conscience, religion or belief.
There is therefore to-day not the slightest doubt that even according to the most
orthodox and restrictive voluntarist criteria, all the above-mentioned rights and duties
of States have been transformed into general customary international law. There is at
present virtually no State which has not assumed the obligation to respect these rights
either by the UN Charter or by some other treaty, or declaration having law-declaring
effect.
But perhaps no other rules of general international law do limit to such an extent
the freedom of action of all States, notwithstanding their power and influence. Most
of these fundamental rights and correlative duties thus consist in far-reaching limita-
tions on the arbitrary use of force. And it is not surprising that the difference between
normative picture and the reality of international relations, is here greater than in other
domains of international law.
The correlation of fundamental rights and duties of States and of the maintenance
of international peace and security taken as an objective, seem to be of importance for
our discussion. The problem arises in regard to the legal effect of the Helsinki Final
Act of 1975 which, as we know, was not adopted in the form of a treaty. The
obligatory character of that international instrument in international law was contested
by most authors. Discussing this problem, J.E.S. Fawcett has made a comparison of
the principles set forth in the UN Charter and those which were laid down in the
Declaration of Principles, which is a part of the Helsinki Act. He came to some
interesting conclusions:
 73
"...The members of the community of nations have political objectives,
analogous to the moral and social obligations of individuals. They take
broadly two forms, as axioms on which the order of the international com-
munity rests, and as political commitments, serving a common interest and so
engaging reciprocaly. The UN Charter and the Helsinki Act both enunciate as
axioms of international order the pacific settlement of disputes, the
renunciation of the use of force, the territorial integrity and political indepen-
dence of States and self-determination of peoples. The obligations implied for
international relations do not depend on any rule of law; the rule of law itself
depends on their observance as political obligations. Their formal conversion
into legal obligations in the UN Charter - an "international agreement", which
is " binding on the parties to it" and "governed by international law" does not
change their nature though it may strengthen their enforcibility. The Helsinki
Act is in part a restatement or implied interpretation, in the European context,
of the UN Charter, corresponding to General Assembly Resolution 2625
(XXV). It sets out in effect the political obligations necessary to "peace,
justice and security" in Europe and elaborates them into a number of specific
particular undertakings. Those who refer to the Act as the Helsinki Agree-
ment are legally inexact but politically correct." "

It is worth mentioning that almost two centuries ago Abb6 Gr6goire deduced
essentially the same axioms in his Draft Declaration of the Law of Nations, which he
proposed to the French National Convent in 1795, dreaming of a harmonious family
of human beings.'s
In this respect Max Soerensen deemed that certain principles of international law
are so firmly consolidated, that they are so convincing to an international judge that he
does not feel obliged to search for their origin and foundation."' The judge is thus

' Cf., J.E.S. Fawcett, "The Helsinki Act and International Law", Revue Belge de
Droit international(1977) Nos. 1-2, p. 9.
's5 Cf., V.D. Degan, "L'affirmation des principles du droit naturel par la R6volution
frangaise - Le Projet de Ddclaration du Droit des Gens de l'abb6 Gr6goire", Annuaire
frangais de droit international(1989) pp. 99-116.
"I Max Soerensen, Les sources du droit international(Copenhague 1946) p. 115.
 74

persuaded that in question are general customary rules, the opinio ofjuris of which is
self-evident." 7
In fact the legal force of these principles is vindicated by their ultimate aim: the
maintenance of international peace and security, which is believed to be a value for
mankind as a whole.
As we already stressed, there is not a full identification of these fundamental
principles of international law with the general principles of law as provided in Article
38 (Ic) of the Statute of the Hague Court. Although being of a basic character, they
are not synonymous with legal principles of municipal and other legal systems. That
is because they relate to different kinds of social relations.
Nevertheless, between these two categories of principles there is a similarity in
their function in the international order. The same way as general principles of law are
a prerequisite for the existence of a legal order of any kind including international, the
above mentioned fundamental principles of international law are axioms on which the
international political order rests. Like any other legal rule, they can in practice be
respected or ignored. But the rule of law in international relations depends on their
enduring observance as political obligations. The political leadership of all States,
seriously seeking international peace and security, must respect them in relation to all
other States.

15. THE RULES OF LEGAL REASONING AND LEGAL PRINCIPLES

Some authors in their writings confuse general principles of law, which are legal
rules, with various kinds of legal precepts and maxims whose nature and scope are
dubious. We already mentioned some maxims necessary for legal reasoning."' Here

"' In the Nicaragua case of 27 June 1986 the International Court of Justice deduced
from above mentioned and some other non-conventional instruments the opinio juris
of these States which adopted them. Cf., L.C.J. Reports 1986, pp. 99-100, para. 188;
p. 101, para. 191; etc.
"' Cf., supra, para. 1.
 75
we are going to examine the scope of two other kinds of these precepts: those relating
to the interpretation of legal instruments; and so-called "equitable principles" invoked
by the International Court of Justice in its recent practice.

There are writers who maintain that some rules of treaty interpretation which are
common with the rules provided in municipal statutes and codes, are general principles
of law. 59
In international jurisprudence the 1969 Vienna Convention was a kind of water-
shed in this regard. Prior to this Convention in judicial practice only two genuine
legal rules on treaty interpretation were ascertained.
The first rule is an authentic general principle of law. It relates to the question:
who is entitled to interpret a treaty. The Permanent Court of International Justice in its
Advisory Opinion of 6 December 1923 on the question of Jaworzina enunciated the
"traditional principle": ejus est interpretare legem cujus condere. It was described
there as follows:

"...it is an established principle that the right of giving an authoritative

interpretation of a legal rule belongs solely to the person or body who has
power to modify or supress it."'6

Therefrom derives a counter-rule, that unilateral interpretation, or that which is

not made by all parties to a treaty, does not legally bind party or parties which did not
give their consent to it.
The second is a negative rule concerning treaty interpretation. It relates to the
question of the domain of interpretation. The majority of scholars beginning with
Emeric de Vattel, and the two Hague Courts until 196916' have almost unanimously

"I Cf. e.g., Georges Ripert, "Les rbgles du droit civil applicables aux rapports
internationaux", Recueil des Cours (1933) tome 44, pp. 648-659.
'" P.C.LJ. Series B, No.8, p. 37.
161 Cf.,V.D. Degan, L'interprdtationdes accords en droit international (La Haye
1963) pp. 100-116; 159-160.
 76
affirmed the so-called rule of "clear sense", translated by Sergio Neri into Neo-Latin:
in claris non fit interpretatio."
Accordingly, when a legal text is clear - and this conclusion has to be drawn
comparing all its linguistic versions which are equally authentic, and from the examin-
ation of wording used in its context - then it does not need to be interpreted. It must
be respected and applied such as it is. This rule favours the principle pacta sunt
servanda. It makes a clear distinction between interpretation, which is a logical
operation almost always susceptible of different results, and the application and respect
of treaties.
However, when codifying the rules of treaty interpretation, the International Law
Commission did not accept this approach. Its solution is embodied in Article 31 (1) of
the 1969 Vienna Convention, and is entitled "General rule of interpretation'. It reads
as follows:

"Atreaty shall be interpreted in good faith in accordance with the ordi-

nary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose."

Hence, following this "general rule", every process of application of a treaty is

connected with the process of its interpretation.
Instead of the rule of clear sense, this "general rule" imposes the interpretation of
a treaty in its context as legally obligatory. But it was in fact implicit in the rule of
clear sense.
For the rest, the principle of good faith does not seem to be a specific rule of
treaty interpretation. It relates also to application of treaties and is a general principle
of law in its entirety.
The principle of the ordinary meaning is not without exceptions. The exception is
expressly provided in paragraph 4 of Article 31:
"A special meaning shall be given to a term if it is established that the
parties so intended."

Cf., Sergio Neri, Sull'interpretazionedei trattati nel diritto internazionale(Milano

'62
1958) pp. 95-120.
 77
And finally, the interpretation of a treaty in the light of its object and purpose
seems at the first glance to be self-convincing. But in regard to the similar rule of
effectiveness, the Hague Court in its Advisory Opinion of 18 July 1950 on Interpreta-
tion of Peace Treaties, asserted the following:

"The principle of interpretation expressed in the maxim: Ut res magis

valeat quam pereat, often referred as the rule of effectiveness, cannot justify
the Court in attributing to the provisions... a meaning which... would be
contrary to their letter and spirit.""

Consequently, the reference to the object and purpose of a treaty, an element open
itself to different interpretations, should not contradict the clear sense of the terms of
the treaty.
In fact most of other so-called "rules" or "principles" of interpretation, even if
provided in municipal civil codes, are not legal rules at all. And for this simple reason
they cannot be general principles of law. They are simple advices to judge or to other
agencies, which are not obligatory for them. If he disregards some of these so-called
"rules" of interpretation, that will not necessarily entail nullity of his decision, nor is
it equivalent with the violation of law.'6
The foregoing relates to the "rules" embodied in Article 31 of the Vienna Conven-
tion - of ordinary and of special meanings of the terms used, because the choice
depends on judge; to the rule of efectiveness; as well as to interpretation in the light
of object and purpose of the treaty. It relates a fortiori to some logical precepts
provided for in some civil codes and referred to in some judicial decisions, as for
example: argumentum ab absurdo, argumentum a contrario, interpretation contra
proferentem, rules on extensive and of restrictive interpretation, etc.

1 I.C.J. Reports 1950, p. 229.

'" The French Civil Code of 1803 thus provides in its Articles 1156-1164 a list of
"rules" of interpretation of contracts. But there was already in 1808 issued the
following conclusion of the Cour de Cassation: "Les juges du fond interprbtent
souverainement les conventions des parties obscures ou ambiguds". Cf., Code civil,
Soixant-troisibme ddition, Dalloz (Paris 1964) p. 448.
 78

It is very similar with the so-called "principles of justice and equity", in which
some authors recognize general principles of law. Equity is sometimes provided for in
municipal civil codes." Here, however, there are different situations which are to
be distinguished.
Equitable considerations of a judge or of a legislator were an important element
of law creating in history. On this basis legal rules were crystallized in the practice of
the Roman praetorperegrinus, prior to the codification of Roman law under Emperor
Justinian. Until the Judiciary Acts of 1873-1875, precedents produced by the
Chancellor in England appeared to be a separate set of rules of "Equity", co-existing
with the Common Law made by the West-minster Courts. Still nowadays, when these
courts are merged, Equity subsists as a particular set of legal principles. Being lex
specialis, they prevail in case of conflict over the Common Law rule. Some authors
see in the rules of Equity a repository of general principles of law, applicable as such
in international law. The matter is above all of the principle of estoppel."
However, positive rules of law derived from English Equity are not to be confused
with equitable considerations of a judge within his large discretionary power." In

16 Cf., e.g. article 565 of the French Civil Code which speaks of "principes de
l'6quit6 naturelle", or its articles 1135 and 1854, which simply make mention of
"'6quit6".

'"Cf., V.D. Degan, L 'quitd et le droit international(La Haye 1970) pp. 63-72.
16 One should not neglect the Resolution of I'Institut de Droit international of 3
September 1937 (Luxembourg Session), entitled: "La compdtence du juge international
en dquit6". Its entire text reads as follows:
"L'Institut,

ayant procdd6 &l'examen, au point de vue doctrinal, et sans s'attacher A

l'interpr6tation des textes conventionnels en vigueur en la matibre, du r6le de
l'dquit6 dans l'oeuvre du juge international;

6met I'avis:
 79
this sense equity, including the power of a judge to decide a case ex aequo et bono,
does not consist in the application of some objective rules leading to predictable
results. At issue is a subjective sentiment of a judge, when deciding cases, on what is
just or unjust, especially when manifested in appraising concrete cases."'
In this sense, in the process of the normal application of law, every judge or
arbitrator has a large discretionary power to exercise his equitable considerations
whenever specific legal rules cannot provide a solution for all the detailed questions
involved. So for instance in fixing the amount of compensation for injury suffered and
in deciding the interest of the sum assigned; in deciding delays in the procedure;
distributing the costs of the proceedings among the parties; etc.
In all the above instances the question is of exercising equity infra legem or
praeter legem, that is not the same as the application of some ready-made rules,
whether they are based on equity or not.
The 1983 Vienna Convention on Succession of States in Respect of State Property,
Archives and Debts, largely refers to equity in this sense. In regard to the application
of a few substantive rules which it provides on apportionment of some kinds of State
movable and imovable property of the predecessor State, it provides, when appropri-
ate, "equitable compensations". That is in order to elude a too rigid application of
these principles that could result to summum jus, sumna injuna.

10 que l'dquit6 est normalement inhdrente Aune saine application du droit, et

que le juge international, aussi bien que le juge interne, est, de par sa tiche
mime, appeld A en tenir compte dans la mesure compatible avec le respect du
droit;

2* que le juge international ne peut s'inspirer de l'6quit6 pour rendre sa

sentence, sans 8tre li6 par le droit en vigueur, que si toutes les parties donnent une
autorisation claire et expresse Acette fin."

Cf., Rdsolutions de l'Institut de Droit international(1873-1956), (Bile 1957) pp.

161-162.
16 Andr6 Lalande, Vocabulaire technique et critique de la philosophie, 9 kme 6dition,
Paris 1962, p. 295, gives the following definition of "Equit6": "A. Sentiment str et
spontand du juste et de l'injuste; en tant surtout qu'il se manifeste dans l'appr6ciation
d'un cas concret et particulier".
 80
In regard to some other categories of State property, State archives and State
debts, it is obvious that no criteria of apportionment fixed in advance, of whatever
nature, could produce a just solution. In all these instances the 1983 Vienna Conven-
tion provides for the apportionment of State property, archives or debts, "in an
equitable proportion". That means that parties to a dispute, or international judge or
arbitrator, should provide for some ad hoc criteria of apportionment, based on equity
and taking into account all relevant circumstances of the case. Here equity calls for a
partly ad hoc legislative function.
Equity of a judge or arbitrator cannot be avoided when he is fixing a boundary,
and especially in all matters of maritime delimitations.
It is natural that on the above basis some new objective legal rules can sometimes
appear. If a judge, following his sentiment on what is just, adopts the same solutions
for the same concrete problems in a number of cases, and expressly invokes previous
precedents, an objective norm can appear. Such a norm can be confirmed later on in
the practice of States and thus generate a new customary rule of law.
This is, however, not the same as when a court of justice directly invokes some
alleged "equitable principles", which it creates for the solution of a concrete affair,
claiming that this is a matter of ready-made "principles and rules of international law".
Exactly that happened in the North Sea ContinentalShelf Cases of 20 February
1969. Because that Judgment has introduced a certain confusion in legal terms and
concepts, it seems to be important to discuss this case on maritime delimitation in
more detail.
This practice partly appeared as a consequence of the specific request of parties,
addressed to the Court, not to trace the boundary line in the disputed area of the
continental shelf, but only to decide: "What principles and rules of international law
are applicable to the delimitation as between the Parties..." The parties thus retained
their right further to negociate and to conclude an agreement on delimitation on the
basis of these "principles and rules" as ascertained by the Court in its Judgment. And
the Court accepted such a r6le which led it to a somewhat unusual situation.
In this case with Denmark and the Netherlands, Germany claimed "a just and
equitable share" of the common shelf area. It stressed that it did not involve asking the
 81
Court to give a decision ex aequo et bono which, having regard to the terms of
paragraph 2 of Article 38 of the Court's Statute, would not be possible without the
consent of all the Parties. But it claimed that the principle of the just and equitable
share was one of the recognized principles of law which, by virtue of paragraph 1(c)
of the same Article, the Court was entitled to apply as a matter of the justicia
distributiva which entered into all legal systems.'"
The Court in its Judgment did not formally adopt German the claim on that
ground, but it has still implicitly adopted that way of reasoning. It considered its task
to be the regulation of essential delimitation, and not the apportionment of the areas
concerned.o However, after having decided that the principle of equidistance from
Article 6 of the 1958 Geneva Convention on the Continental Shelf was not applicable
to Germany which was not a party to it, the Court proceeded in setting up for the
parties some "equitable principles" as allegedly being "principles and rules of inter-
national law applicable to the delimitation between the parties"."'7 The Court
stressed that:

"...On the foundation of very general precepts of justice and good faith,
actual rules of law are here involved which govern the delimitation of adjac-
ent continental shelves that is to say, rules binding upon States for all
delimitations; - in short, it is not a question of applying equity simply as a
matter of abstract justice, but of applying a rule of law which itself requires
the application of equitable principles...""

The Court then fixed some criteria concerning what it understood to be "rule of
law" or perhaps "equitable principles" which the rule of law requires to be applied.
But it failed to determine whether these alleged "principles and rules of international
law", as to be applied between the parties, were general principles of law being

"' Cf., LC.J. Reports 1969, p. 21, para. 16.

17 Ibid., p. 22, para. 18.
17 Ibid., pp. 46-47, para. 85; pp. 53-54, para. 101.

17 Ibid., pp. 46-47, para. 85.

 82
common to all advanced municipal legal systems, or whether these were general
customary rules. In the latter situation it should prove their confirmation in the
previous practice of States, followed by opinio juris, respecting the same criteria on
which it denied the customary character of the principle of equidistance from Article
6 of the 1958 Geneva Convention.
It is the most likely that what is involved here are no legal principles of any kind,
but rather some kind of directions to the parties on how to reach an equitable delimita-
tion, or rather, how the Court would have acted had they entrusted it with the task of
delimitation."' These directions were obligatory on the parties because they were
laid down in an obligatory Judgment of the Court, and not because of their very nature
of "principles and rules of international law", leading to predictable results.
Unfortunately for the Court, in some later cases on delimitation of the continental
shelf, the parties continued to ask it to determine "principles and rules of international
law" applicable in their case, instead of tracing the line of delimitation in the disputed
area. And the Court proceeded in fixing in each judgment new ad hoc "equitable prin-
ciples" which they claimed to be "principles and rules of international law". This
happened in the case of the Continental Shelf between Tunisia and Libya of 24
February 1982, and in the ContinentalShelf Case between Libya and Malta of 3 June
1985.174
In that latter Judgment the Court tried, however, to describe the "normative
character of equitable principles as a part of general international law". It said:

"...That equitable principles are expressed in terms of general application,

is immediately apparent from a glance at some well-known examples: the
principle that there is to be no question of refashioning geography, or com-

m7Charles De Visscher, De l'dquitd dans le r~glement arbitraloujudiciairedes litiges

de droit internationalpublic (Paris 1972) p. 75, comes in regard to this Judgment to
a similar conclusion when saying: "...II s'agit moins de recommendations au sens
formel que de suggestions, conseils ou directives dans la voie de l'6quit6."
174 See a review of the entire jurisprudence in this subject-matter V.D. Degan,
"'Equitable Principles' in Maritime Delimitations", InternationalLaw at the 77me of
its Codification,Essays in Honour of Roberto Ago, vol. II (Milano 1987) pp. 107-137.
 83
pensating for the inequalities of nature; the related principles of non-encroach-
ment by one party on the naturel prolongation of the other, which is no more
than the negative expression of the positive rule that the coastal State enjoys
sovereign rights over the continental shelf off its coast to the full extent
authorized by international law in the relevant circumstances; the principle of
respect due to all such relevant circumstances; the principle that although all
States are equal before the law and are entitled to equal treatment, "equity
does not necessarily imply equality" (I.C.J. Reports 1969, para.9 1), nor does
it seek to make equal what nature has made unequal; and the principle that
there can be no question of distributive justice."s

Almost all of these "equitable principles" are not properly legal principles or rules
at all. Some of them are simple statements of certain facts; others are formulated as
postulates or aims to be achieved. Almost none of them have the specific content of a
source of legal rights and duties for States, nor can they be as such obligatory for a
judicial organ. As such, they can neither be general principles of law, nor customary
legal rules.
However, another line of reasoning was developed within the same International
Court of Justice was developed, especially when the parties asked of it to draw a
delimitation line in a disputed maritime area. Then its approach to equity and to its
relation with law was more balanced. The same was with the arbitral practice in the
same domain.
Hence, the Chamber of the International Court of Justice in its Judgment of 12
October 1984 on the GulfofMaine Area Case between Canada and the United States,
has largely eliminated the causes of confusion created by the above mentioned practice
of this Court.
The Chamber adopted the term "equitable criteria" for what the Court in its
practice called "equitable principles". It stressed the fact that "they are not in
themselved principles and rules of international law".'" It has also stressed that

175 L C.J. Reports 1985, pp. 39-40, para. 46.

17 L C.J. Reports 1984, p. 292, para. 89.

 84
"There has been no systematic definition of the equitable criteria that may
be taken into consideration for an international maritime delimitation, and this
would in any event be difficult a priori, because of their highly variable
adaptability to different concrete situations. Codification efforts have left this
field untouched. Such criteria have however been mentioned in the arguments
advanced by the parties in cases concerning the delimitation of continental
shelf boundaries, and in the judicial or arbitral decisions in those cases..."

The Court then proceeded to mention some of these equitable crite-ria. It is

peculiar that some of them were qualified as "equitable principles" and as such a part
of general international law in the already quoted Judgment of the full Court later in
the following year, 1985.

"...There is, for example, the criterion expressed by the classic formula
that the land dominates the sea; the criterion advocating, in cases where no
special circumstances require correction thereof, the equal division of the area
of overlap of the maritime and submarine zones appertaining to the respective
coasts of neighbouring States; the criterion that, whenever possible, the
seaward extension of a State's coast should not encroach upon areas that are
too close to the coast of another State; the criterion of preventing, as far as
possible, any cut-off of the seaward projection of the coast or of part of the
coast of either of the States concerned; and the criterion whereby, in certain
circumstances the appropriate consequences may be drawn for any inequalities
in the extent of the coasts of two States into the same area of
delimitation.""n

The Chamber added that the equity of these criteria can only be assessed in
relation to the circumstances of each case, and for one and the same criterion it is
quite possible to arrive at different, or even opposite conclusions in different cases.
The Chamber has stressed:

"...that the criteria in question are not themselves rules of law and
therefore mandatory in the different situations, but "equitable", or even
"reasonable', criteria, and that what international law requires is that
recourse be had in each case to the criterion, or the balance of different
criteria, appearing to be the most appropriate to the concrete situation. "178

' Ibid., pp. 312-313, para. 157.

n7Ibid., p. 313, para. 158.
 85
This is only to stress that what the Chamber called in this Judgment "equitable
criteria", or similar considerations of a judge based on equity, are for the above
reasons not obligatory legal rules at all. Lacking content, precision and predictability
in their application, they cannot be general principles of law.

16. ANALOGY IN INTERNATIONAL LAW

We have already come to the conclusion that the general principles of law consist
mainly in fundamental legal precepts which constitute a prerequisite for the existence
and operation of a legal order. As such they are common to all branches of law.
However, doctrine, as well as international practice with its specific needs, did not
reduce the scope of this source of international law to a few basic legal precepts. In
order to reveal other legal rules which are held by some authors as general principles
of law, it is necessary to consider different aspects of analogy in international law."
We want to stress from the outset that we do not mean that any recourse to some rules
from municipal law is equivalent to the revelation and application of general principles
of law.
The problem of analogy in international law - and in law in general - is of a
complex nature. We shall discuss here its two main aspects. The first aspect relates to
the resort to analogy by the international judge or arbitrator in exercising his judicial
function. The second aspect relates to the use of analogy with municipal legal rules in
the process of codifi-cation and progressive development of international law.

Because of their nature as a distinct source of international law, the application of

general principles of law would normally occur in the judicial settlement of disputes,

179Michael Akehurst, "The Hierarchy of the Sources of International Law", British

Year Book of InternationalLaw (1974-75) p. 279, rightly states that: "...An argument
by analogy is in effect an argument that specific rules reflect a broader (and often
unstated) principle which is applicable not only to the circumstances governed by the
specific rules but also to analogous circumstances." See of the same author: "Equity
and General Principles of Law", Internationaland Comparative Law Quarterly (1976)
especially pp. 816-825.
 86
especially in cases of deficiency in conventional and customary law. Therefore, when
a precise norm relating to a dispute is lacking, an international judge is authorized by
Article 38 (1c) of the Court's Statute to apply general principles of law. He can ascer-
tain them through analogy with other legal systems, or in some other way.
Dionisio Anzilotti interpreted this provision in this sense. He stressed that its
intention is to push forward to the ultimate limits the productivity of sources, and that
the analogy is the main and basic instrument to this end.'s The same approach was
suggested by Hersch Lauterpacht. He asserted that the reception of private law by the
practice of States and by international tribunals has taken place to an extent much
larger than the predominant positivist attitude of his time made it appear."8'
It is, however, a matter of judicial discretion whether a case will be decided
exclusively on this basis. As we said, the judge sometimes enunciates a general
customary rule when there is not sufficient evidence of the existence of a general
practice of States, as accepted by them as law. And we have just explained the way in
which the International Court of Justice created, though not successfully, "equitable
principles" in the absence of customary rules and genuine general principles of law.
A judge can also resort to the rule, unpopular in doctrine, but confirmed in the Lotus
case, that everything that is not expressly forbidden by international law remains free
to sovereign States."82 But such a solution can sometimes conflict with the view of
the judge of what is just in the given case. Then he will choose a different path of
decision-making.

" Cf., Dionisio Anzilotti, Corso di diritto internazionale, volume primo (Padova
1955) p. 106.
"' Cf., Hersch Lauterpacht, PrivateLaw Sources and Analogies of InternationalLaw
(London 1927) p. 303.
182 Judgment of the Permanent Court of Justice of 7 September 1927, P.C.I.J. Series
A, No. 10, p. 19. The Court in this Judgment stated that international law leaves
soveregn States: "...a wide measure of discretion which is only limited in certain cases
by prohibitive rules; as regards other cases, every State remains free to adopt the
principles which it regards as best and most suitable."
 87
A quite different situation appears when the subject-matter of an international
dispute consists of private claims of natural or juridical persons from different States.
Then the need for the application of the proper municipal law proceeds from the nature
of the dispute. In such a case an international judge can, on the basis of the rules of
conflict of laws, decide to apply substantive rules of a specific municipal law. Where
such precise material rules do not exist, or if the judge himself deems it inexpedient,
he can instead resort to analogy. From municipal legal systems of several States he can
then deduce common legal principles and apply them to the case as being general
principles of law.
These principles must not necessarily be common to all or even to the main
advanced legal systems of the world. For example, the Court of Justice of the
European Communities in Luxembourg will scarcely need to search for such common
rules outside the legal systems of its Member States.
The general principles of law of this kind do not, strictly speaking, necessarily
relate to relations between States and other an international persons, but to private
claims of international character.
And finally, an international judge will most often resort to a kind of analogy with
municipal law in order to confirm with additional arguments the motives of his
judgment which he based on conventional or customary international law. The
associations of this kind, resting on principles common with municipal law, can prove
to be convincing to the disputing parties, to whom these motives are mainly addressed.
Such a judgment can prove to be persuasive for the further practice of States and thus
for the further development of customary international law.
For all the above reasons, extracting general principles of law by analogy from
municipal law cannot easily be distinguished from what appears to be the discretion of
an international judge in deciding the cases submitted to him. Therefore, authors who
interpret Article 38 (1c) of the Statute as an express authorization given to the Hague
Court to resort to analogy are not far from the truth.

Recourse to analogy appears in a somewhat different light appears the when a new
legal rule has to be defined. We have already explained the importance of general
 88
principles of law in the codification of the law of treaties and of State responsibility.
But the question there concerns mainly legal rules which are already in force, and
which constitute parts of the international legal order, being as such unavoidable.
However, the analogy with rules of municipal law can gain a much larger
importance in the process of codification of international law which is combined with
its progressive development, and sometimes even with its new law-creating. Here it is
a question of creation of new rules in cases when a settled practice of States does not
exists, and no customary or conventional rules in a given domain are in force.
In drafting these new rules, the International Law Commission usually takes into
account the comparative aspect of the problem. It is thus in course of similar institu-
tions in municipal legal systems, that what can make its task easier. Nevertheless, if
a rule is formulated on that basis, it does not immediately become a rule of positive
international law. In case that the convention in question enters into force, it will bind
from the outset its parties only, and it can only at a later stage transform into general
customary law.
However, as the results of the International Law Commission prove, there is no
room for a blind analogy with principles common to several or to most municipal legal
systems. Exactly for this reason the notion of general principles of law cannot simply
be taken as synonymous to private law analogies, as some writers suggest.
Some scholars propose that a comparative research of municipal legal systems -
mostly from private, administrative and constitutional law - would make much easier
the application of general principles of law by international courts and tribunals.
Rudolf Schlesinger, professor of comparative law from Cornell Law School, in an
article published in 1957 announced such a project, which as we know has never been
accomplished."'
It is true that such a broad and systematic comparative study, and especially the
comparison and clarification of legal concepts from Continental and from Common

"' Cf., Rudolf B. Schlesinger, "Research on the General Principles of Law Recog-
nized by Civilized Nations", American Journalof InternationalLaw (1957) pp. 734-
753.
 89
Law systems, would be very useful for international practice in general. This relates
not only to general principles of law, but afortiorito the application of municipal law
in international adjudication, when the matter is of private claims. But we do not
believe that by this method the Corpus Juris Gentiuwn would become substantially
richer than it is now.
It is in fact not sufficient to extract by analogy a principle common to several or
to all municipal legal systems, and immediately apply it as a ready-made rule of
positive international law. This is not in fact the real meaning of general principles,
being a source of international law.
Although Lord Phillimore stressed at the Advisory Committee of Jurists in 1920,
that general principles were those which were accepted by all nations in foro
domestico, he probably did not mean that all these legal principles were as such a part
of international law.
Not all principles common to legal systems of States are applicable in international
relations. In order to be general principles of law they must be of a broad scope of
application, and in addition they must be common not only to municipal legal systems
of various coutries, but to various types of law too. They must be applicable, as we
stressed, in municipal, international, transnational and supranational law.
However, even all general principles of law, which are applicable to all the above
legal systems, as well as to international relations, should not in all circumstances be
rules of positive international law. In some domains of international relations there are
well established general customary rules which deviate from applicable general
principles. In such a situation the customary rules will prevail. And some domains of
international co-operation are entirely covered by precise bilateral or multilateral
treaties between interested States, and there is simply no room for any general
international law, being customary or consisting of general principles of law.
Thus, municipal law analogies as a method of discovering and applying general
principles of law are not a simple question. And even if by way of analogy a general
principle of law is introduced in a codifying convention, it must not necessarily have
quite identical meaning as it has in municipal law. Sometimes only the basic principle
is similar, but its scope can be different.
 90
Milan Bartol, former member and president of the International Law Commission,
insisted on such differences very much. As an example he considered certain terms
used in the Vienna Convention on the Law of Treaties, which was drafted by that
Commission, in order to prove differences between their meaning and scope in private
and administrative law on the one side, and in international law on the other. He
discussed in that respect different meanings of the terms signature ad referendwn,
ratification, acceptance, approval, accession, the rule pacta sunt servanda, terms of
amendments and modification, clausula rebus sic stantibus,jus cogens, and even the
rule of estoppel. He stressed that in order to avoid misunderstandings, codifying
conventions offer interpretation of terms which they use, as the case is for instance
with Article 2 of the Vienna Convention on the Law of Treaties.
So far his warnings seem to be justified. However, this author in our view
exaggerates when alleging that the Commission used the terms analogous to those from
municipal law, only because it could not find more appropriate ones. For him the
matter always concerned new concepts in the law of treaties, which have in common
only the name with the concepts from general law.'"
Notwithstanding these exagerations, an international lawyer has always to be
careful not to confuse the terms used in a treaty with those from municipal law.
Similarities are sometimes in name only.
Lord McNair, in his separate opinion on the Advisory Opinion of the Hague Court
on InternationalStatus ofSouth-West Africa, issued on 11 July 1950, has examined the
analogy of the term "mandate", used in Article 22 of the Covenant of the League of
Nations, with the trust in English and American Law. His considerations are the
following:

International law has recruited and continues to recruit many of its

rules and institutions from private systems of law. Article 38 (1) (c) of the
Statute of the Court bears witness that this process is still active, and it will
be noted that this article authorizes the Court to "apply.... (c) the general

1" Cf., Milan Bartos, "Transformation des principes gdndraux en rigles positives du
droit international", Milanges offerts &JurajAndrassou, (Martinus Nijhoff) (La Haye
1968) p. 11.
 91
principles of law recognized by civilized nations". The way in which interna-
tional law borrows from this source is not by means of importing private law
institutions "lock, stock and barrel", ready-made and fully equipped with a set
of rules. It would be difficult to reconcile such a process with the application
of "the general principles of law". In my opinion, the true view of the duty
of international tribunals in this matter is to regard any feature or terminology
which are reminiscent of the rules and institutions of private law as an
indication of policy and principles rather than a directly importing these rules
and institutions... .185

The same should apply to concepts of State succession and inheritance in private
law; vassalage in international law and in medieval feudal law; protectorate in
international and in municipal law; sovereignty in international law and imperium and
dominium in medieval law; etc.
However, the cautioun advised by Lord McNair is not the same as the view of
Milan Bartol, who is a priori hostile to the identity of institutions in international and
in municipal law. The principles such as: pactasunt servanda, good faith, pacta certiis
nec nocent nec prosunt, the vices of consent of parties when concluding agreements,
circumstances precluding wrongfulness of an act, and fundamental principles of
judicial procedure, - do not seem to be so different in their meaning in various
branches of law, although certain diversities in their practical application should not be
excluded.

17. DYNAMIC ELEMENTS IN GENERAL PRINCIPLES OF LAW

We have so far considered mostly the general principles of law derived from
Roman law and from private law in general. It could however be misleading to believe
that all principles of this kind are unchangeable, everlasting and predetermined without
exception. It is true that some of them, qualified by Geza Herczegh as "logical
preconditions of law" do not change in time, at least in their essential meaning. But it
would not be correct to draw the same conclusion in respect to all precepts which

"I LC.J. Reports 1950, p. 148.

 92
doctrine and international practice encompass under the name of "general principles of
law".
As an opposite example we can take the principle of vested or acquired rights,
which has for a long time been interpreted in international law as sacred, absolute and
inviolable. The recent developments of general international law indicate that maybe
it this not exactly the case. The consolidation of the right of all peoples freely to
dispose of their natural wealth and resources, challenged the principle of vested rights
of foreign States or persons in regard to natural resources of a State. It is now claimed
by many that a State on behalf of that right is entitled to appropriate foreign property
by law, but subject to the obligation to pay "full, adequate and prompt compensation',
the formula itself open to challenge.
The fact that not all general principles of law are predetermined and everlasting is
proved by at least two phenomena. The development of municipal legal branches in
most States, - in particular of constitutional, administrative and penal law - has raised
some new general principles of law, unknown or not recognized as such in former
international law. On the other hand, the development of international relations, and
in particular the development of technology, sometimes give rise to new objective
situations which had not previously fallen within the framework of international law.
Here general principles of law can sometimes be of importance for legal regulation
which becomes a necessity.
Constitutional developments in many States have produced the affirmation of
identical human rights and freedoms. This process has been accelerated and intensified
after the Second World War by many international instruments, such as the Universal
Declaration of Human Rights of 1948, and two International Covenants on Human
Rights of 1966, as well as by numerous declarations and conventions of general and
regional character, like the European Convention of 1950 with its Protocols, similar
American Convention of 1969, etc.
Still one aspect of human rights in a wider sense has not been so far the topic of
convention regulations to a sufficient extent. That is the matter of legal protection of
ethnic minorities in States. Budislav Vukas however asserts that although the national
legal systems of all States do not guarantee the same rights to their minorities, nor do
 93
they assign to these rights the same content, there are some rights which are frequently
repeated, almost as a rule. On the basis of this development in the municipal and on
the international level, this author claims that some "general principles of law' on the
status of minorities appeared in the sense of Article 38 (1c) of the Statute of the
International Court of Justice. The general principles were created according to him by
mutual and parallel operation of municipal and international law. And he compiles a
list of not less then thirteen minority rights and duties.16
However, even if this author is not entirely right in his final conclusions, what he
calls "general principles of law" will probably be a factor of inspiration of future
development of international law by conventions and in customary process.
It is therefore an established fact that the development of constitutional law, of
penal law and procedure in a larger number of States has created some new general
principles of law, which apply as such as a source of the law of nations. We have
already explained such an example from the Advisory Opinion of the former Perma-
nent Court of International Justice of 1935 on the Legislative Decrees in Danzig. The
Court in fact rejected principles of national-socialist penal legislation which were not
in accordance with established general principles of law in the same domain.m8
These and similar general principles of penal procedure were after the Second World
War embodied in major international instruments on human rights. Thus, the develop-
ment of general principles can be a stimulating factor in further development of
customary rules of general international law.
It is possible only to imagine an inverse process. A principle of law developed in
a number of general conventions could impose itself as a general principle of law on
municipal legal orders of these States which are not their parties. We have so far no
proof for such a situation. If it appears, it will not always be clear do they operate as
general customary rules, obligatory as such on all States, or as a sort of Common Law
of Mankind.

"I Cf., Budislav Vukas, Etnieke manjine i medjunarodniodnosi [Ethnic Minorities and
International Relations] (Zagreb 1978) pp. 126-128.
187 Cf., supra, para. 11.
 94

The foregiong proves the fact that general principles of law are not an entirely
static part of legal superstructure of the world, although they are not supposed to be
susceptible to rapid modifications, to the same extent as rules generating from other
sources of the law of nations.

18. GENERAL PRINCIPLES OF LAW AND NEW PROBLEMS OF LEGAL

REGULATIONS

Existing general principles of law may prove useful in some areas of international
law where treaty provisions in force cannot be exhaustive enough to provide solutions
for all problems which arise, and customary law has not yet been consolidated enough.
In this respect of the conclusions of Dr. C. Wilfred Jenks, a great expert in the
subject-matter, in his excellent book on the proper law of international organizations
are of importance. We can here entirely rely on his conclusions. He meant by that
proper law: the "personal law" of international organizations; the international
administrative law governing their legal relations with their officials, employees and
other agents; and the principles of the conflict of law governing the choice of law
applicable to their legal transactions with third parties."'
Most of what is described here can also be called "internal law" of an organization
in question. The law governing relations of an organization with its employees, and
the law governing contracts concluded by it with third parties, can be the matter of the
so-called "transnational law' to which Jenks's concept of the "common law of
mankind" mainly corresponds.
Some conclusions by Dr.Jenks concerning this subject-matter are worthy of note
here. He says that in examining the r6le of general principles of law in the develop-
ment of international administrative law, and the potential contribution of natural
justice and equity to the development of international administrative law, we will
encounter problems analogous to those which confront the international lawyer

I" C. Wilfred Jenks, The Proper Law of InternationalOrganizations (London 1962)

Introduction, p. xxxviii.
 95
whenever he examines the process of growth and development of international
law."s' In the concluding part of his book this author stresses:

"Neither agreement nor practice, even in the widest sense, can, however,
provide suficiently vigurous seeds of growth to enable the law to cope with
new problems pressing for solution as the result of the activities of the
international organizations. Legal principle therefore has an indispensable part
to play in the deve-lopment of the proper law of international organizations
and its assimilation into the general body of international law. The process
whereby international law recruits itself from general principles of law must
be expected to be intensified; the range of legal systems with a claim to
consideration when such general principles are deduced was widened; the
adoption of general principles of law as the proper law of certain international
transactions is increasingly common; international administrative law will tend
to draw, but should draw with caution, on municipal systems of administra-
tive law and jurisprudence.""

A similar importance may be given some general principles of law of a very broad
character in legal regulations of some new objective situations, emerging as a conse-
quence of rapid development of technology.
Before the Soviet launching into space of the first artificial satellite in 1957, there
was a general conviction in doctrine that the sovereignty of States over space above
their national territory extends indefinitely upwards. Legal rules concerning celestial
bodies did not exist. The stars were out of reach of mankind, and any such hypotheti-
cal rules should be ineffective and senseless.
However, by that first launching in 1957, a new legal rule appeared, providing for
the freedom of activities in the outer space, including that of launching vehicles into
orbit round the earth.
Such an undefinite freedom had to be articulated by more precise rules of general
character. And in a general concept of law, known already in roman law, imposed
itself in that respect. That was that the space and celestial bodies form res communis

189 Ibid., p. xv.

*9Ibid., pp. 259-260.

 96
omnioum, the same as in the Roman law air, running water, sea and littoral, were res
extra patrimoniwn and extra commercium.
That was exactly the course of development of general customary law by the UN
General Assembly resolutions and by treaties. The most important was the Declaration
of Legal Principles Governing the Activities of States in Exploration and Use of Outer
Space of 13 December 1963 (1962 (XVIII)). On 27 January 1967 was concluded the
Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and other Celestial Bodies.
In these instruments are confirmed rules that the outer space, including the Moon
and other celestial bodies, is not subject to national appropriation by claim of sover-
eignty, by means of use or occupation, or by any other means. Space exploration is to
be carried out for the benefit and in the interests of all countries. The placing in orbit
round the earth, or installing in space, weapons of mass destruction are forbidden. The
use of Moon and other celestial bodies may be carried out for peaceful purposes only.
And all activities in the outer space are to be carried out in accordance with interna-
tional law.

However, it would be too much to pretend that this course of evo-lution of

international law, being conformable with an ancient general principle of law, should
be the only possible, or the only legitimate way.
When in the mid 1960s it appeared that the sea-bed and ocean floor came to the
human reach, more imortant economic, political and strategic interests of States were
at stake there than in the outer space.
On 11 December 1970 the UN General Assembly has unanimously adopted, with
14 abstentions only, the Declaration of Principles Governing the Sea-bed and Ocean
Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction. That
international instrument has affirmed the same basic principles as these which are
already valid in the outer space. These principles were latter on embodied in Section
2 of the Part XI of the UN Law of the Sea Convention of 1982.
The Area and its resources are the common heritage of mankind, which is an
equivalent and modern construction of the ancient general principle res communis
 97
omniwn. It is proclaimed that no State shall claim or exercise sovereignty or sovereign
rights over any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof. Activities in the Area shall be carried out
for the benefit of mankind as a whole. The Authority shall provide for the equitable
sharing of financial and other benefits derived from the activities in the Area. And the
Area shall be open to use exclusively for peaceful purposes by all States.
However, already the "international regime", which was appended to the basic text
of the 1982 Convention, introduces the so-called "parallel system" of exploitation of
mineral resources. It is in a way a compromise between opposing interests of States,
and not fully in accordance with the above mentioned principles.' And the indus-
trial countries now only in possession of necessary technology, have practically
dissociated themselves from these principles by their unilateral legislation.
The U.S. Deep Seabed Hard Mineral Resource Act of 28 June 1980, even asserts
that: "it is the legal opinion of the United States that exploration for and commercial
recovery of hard mineral resources of the deep seabed are freedoms of the high seas
subject to the duty of reasonable regard to the interests of other States in their exercise
of these and other freedoms recognized by general principles of international law"."
This assertion goes too far. Individual exploration and exploitation of mineral
resources in the Area, and the issuing of licences for these purposes by governments,
cannot be claimed to be freedoms of the sigh seas. On the contrary, they are in
violation of the existing freedoms stipulated in Article 2 of the 1958 Geneva Conven-
tion on the High Seas, to which the United States of America is the party."'

"9 In question is the Resolution II. Governing preparatory investment in pioneer

activities relating to pollymetallic nodules, which is a part of Annex I to the Final Act
of the Third UN Conference on the Law of the Sea.
1" Cf., International Legal Materials (1980) No. 5, p. 1004.
'" First of all, these "freedoms" were not provided for in the 1958 Geneva Convention
on the Highs Seas, and they are explicitely forbidden by Article 137 of the 1982 UN
Law of the Sea Convention, which has not yet entered into force. All parties to the
1982 Convention will assume a legal obligation that: "...No such claim or exercise of
sovereignty or sovereign rights nor such appropriation shall be recognized."
 98
Nevertheless, this regretful and contradictory development of international practice
confirms our thesis that the course of development of new general international law
must not necessarily follow existing general principles of law.
*

In conclusion, with regard to new objective situations, or to new domains of

international co-operation as is the -proper law of international organizations", existing
general principles of law can sometimes impose themselves as positive legal rules if
they offer the most "reasonable" solution which is at the same time satisfactory to the
interests of most States. But even in these circumstances they are not mandatory legal

Further on, individual appropriations of hard mineral deposits in a region of the

bed of the high seas, including an exclusive right of exploration and exploitation for
periods not less than 20 wears, are contrary to the nature of the high seas. No actual
freedom therein (freedoms of navigation, of fishing, of overflight, etc), has such
consequences, especially because at stake are nonrenewable resources.

In order that these new "freedoms' transform into positive law, they must, by
virtue of Article 2 of the 1958 Convention be "recognized by the general principles of
international law", and "be exercised by all States with reasonable regard to the
interests of other States in their exercise of the freedoms of the high seas". That
cannot be accomplished by unilateral legislations and by agreements of a few industrial
States in face of a strong opposition of the majority of participants of the Third UN
Law of the Sea Conference, and in opposition with the text of the Convention adopted
and signed there.

It cannot be reasonably presumed that these industrial States will remain for ever
in exclusive possession of necessary technology. Therefore, they cannot pretend that
only their State practice is conclusive for creation of new customary law in this
domain.

Moreover, no earlier covention having extraterritorial effects (concerning the high

seas, fishing there, outer space or Antarctica), has ever authorized its parties for
durable appropriations of these area with exclusive rights of exploitation of their
natural resources.

The only valid conclusion from all above is that according to the positive inter-
national law which is now in force, States are not entitled to issue licences for mining
activities beyond their national territory, their continental shelf and their exclusive
economic zone. National legislations on deep sea mining of mineral resources are
therefore acts ultra vires, and contrary to the present law of nations.
 99
rules. Therefore, such a gap in law can be filled in by specific conventional provi-
sions, or by a prompt creation of new customary law, which can be at variance with
applicable general principles of law in that subject-matter.

19. SUMMING UP

Let us finally recapitulate the conclusions we have reached.

First, the general principles of law must not be confused with the rules of legal
logic, like these on treaty interpretation, nor with "equitable principles", except these
which have already been transformed into rules of positive law. Although such rules
and maxims are necessary for every legal reasoning and in exercising the judicial
function in general, they are not obligatory to judge, and still less they can legally bind
sovereign States and other international persons.
The general principles of law should not be entirely assimilated with the use of
analogy in international law. But Article 38 (lc) of the Hague Court's Statute can be
interpreted inter alia, as an authorization given to the international judge to have
recourse to rules from other legal branches whenever he finds it necessary. One must
look in general principles of law legal norms of a very broad character. But they still
ought to have a certain content whose practical application leads to predictable results,
although they did not emerge with a view of settling concrete legal situations.
Though these principles figure in the Statute of the Hague Court as a distinct
source, judicial organs are in fact not obliged to resort to them in all circumstances
when conventional or customary rules are lacking. The judicial discretion goes much
further. Instead of establishing and applying a general principle of law, a court of
justice or an arbitral tribunal can resort in such an event to the analogy, or to the
decision-making based on equity. It will not exceed the limits of its judicial function
if it is capable to support its verdict with convincing legal arguments.
We have already stressed that during all phases of the proceedings a judge
gradually forms his opinion on the facts and law to be applied. And only thereupon
does he seek legal arguments in order to corroborate his verdict. In that situation
 100
partly lays the reason for a scarce practice of the two Hague Courts in application of
general principles of law as a distinct source.
These principles must be sought where it is seldom done: in positive rules of
municipal, international, transnational and supranational law. In this respect we found
very useful codifying conventions of some parts of international law. In their texts not
infrequently are incorporated rules of positive law in force, in support of which there
is no evidence of a State practice, and there is therefore no evidence of their custom-
ary character.
The general principles of law thus derived, have little in common with natural
law, except their very remote origin. All of them have passed through a process of
objectivization, either as precedents in judicial practice or through codification. And
all of them have become positive rules of at least some of legal branches.
This process of creation of general principles of law has nothing in common with
the rules of the "law of nature" directly deduced by Grotius and his followers from
reason or from the nature of man as rational and social being. If that process has ever
been accurate, these speculative deductions did not transform into positive legal rules
unless they influences actual practice of States and have thus generated into customary
international law.
The general principles of law must therefore be considered to be rules ofpositive
law. They are not of speculative character, but their legal force nevertheless
ultimatelly rests on implication. We designated some of them as to be logical prerequi-
sites for the existence of a legal order. Thus, an intention to assume legal obligations
by a treaty or by a contract of any kind, between any sort of juridical persons and in
all historical periods, is deprived of effect in case of non-existence of the fundamental
principle pacta sunt servanda, and of other general principles of law common to all
agreements, governed by whatever type of law. A judicial procedure presupposes also
the existence and operation of some procedural principles of the same character. Their
lack or their deliberate violation by a judge have as a consequence that the matter is
not of judicial or of arbitral procedure, but perhaps of some other sort of dispute
settlement, or in some cases even of unlawful intervention.
 101
In addition to the principle pacta sunt servanda, a legal order presupposes the
operation of some general principles of law relating to the responsibility for illicit acts,
and even of some peremptory norms (jus cogens) which must not be departed from in
mutual relations of juridical persons. And the existence of an international political
order, including the maintenance of international peace and security, presupposes the
observance of some fundamental rights and duties of all subjects of this order, as
political obligations. The matter is in this latter case not of general principles of law,
but of fundamental principles of general international law, which also ultimately rest
on implication.
The general principles of law of this kind are as to say of eternal character. We
must not be afraid of this conclusion, although it looks outrageous for a dogmatic
positivist. In face of the existence of some laws in the Universe and in the nature, in
face of the existence of mathematical rules and of rules of formal logic, there is no
convincing evidence for the absence of legal rules of a similar character regulating
relations of equal and free persons, such as are sovereign States. There is in this
domain only a risk of doctrinal exagerations in the deduction of these rules, and of
giving up the reality and of "positivity" of law. In that mistake fall all scholars who
create rules of objective law on the basis of pure and uncontrolled deduction.
We are aware that our conclusions of this kind are, as a matter of principle,
unacceptable to convinced voluntarists in international law. We nevertheless partly
share their view, asserting that all of the foregoing general principles of law have not
been rules of positive law of nations in all periods of human history.
There were some periods when no contractual relations, or other relations based
on law, existed between States. That was the case for instance between societies in
Europe and in American in the precolombian period. There were some periods of
merciless wars for conquests of territories, such as during the Mongolian and Ottoman
invasions of Europe. No legal rules were observed between belligerrents in this kind
of conflicts. But once a treaty was concluded, such as between Suleiman the Mag-
nificent and the French king Francis I in 1542, all general principles of law of this sort
immediately applied.
 102
It was however hard to assert the existence of an international legal order of
universal scope, encompassing all States and nations on the Earth, even during the
19th century. Still today, everybody who does not believe in existence of an interna-
tional community of States is legitimate to allege that jus cogens and the legal rules
concerning responsibility of States for internationally wrongful acts, are nothing else
but fancies of idle legal theorists.
A system of law must be in initial stage of its development if all general principles
of law, forming the prerequisite of its very existence, were not already transformed
and received into written or customary legal rules. That is the reason why these
principles, as a distinct source of law, had a larger scope of application in arbitral
practice of the 19th century then now. That is the reason why they are today a far
more important source of transnational and even of supranational law, then of the
modern law of nations.
This source of law, taken as separate from others, can consist in application by
analogy of legal rules from more developed legal orders in case of gaps in law. The
general principles of this kind often help the judge in seeking a legal solution of a
dispute. They can be useful as an initial impetus for the development of international
law in customary process, or by treaty-making. But the question is: do general
principles of law of this kind, and conceived in such a r6le, consist of obligatory legal
rules, permitting no alternatives.
And finally, whenever considering general principles of law, it is always necessary
to keep in mind that, unlike treaty provisions and even customary rules, they are not
rules emerging in order to regulate a concrete situation at a given time. As a conse-
quence, their specific content and scope can vary in different legal systems and in
different historical periods. This fact leads us to the conclusions that perhaps in that
precise and very concrete form in which general principles can reflect in a given time,
they are not petrified, nor entirely unadaptable to the outside situation. But with all
other legal rules they form the super-structure over the economic, social and political
relations of a specific epoch.