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General Principles of Law

Article 38
• 1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:

• international conventions, whether general or particular, establishing rules


expressly recognized by the contesting states;

• international custom, as evidence of a general practice accepted as law;

• the general principles of law recognized by civilized nations;

• subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
• A situation of non-existence of law to the point may arise in any legal
system.
• non liquet
• What will the judge do in such a case?
• Article 142
• CrPC 482
• Such a situation in PIL is more or less likely ?
• PIL has more or less number of decided cases ?
• It is for such a reason that the provision of ‘the general principles of
law recognised by civilised nations’ was inserted into article 38 as a
source of law, to close the gap that might be uncovered in
international law and solve this problem
• ‘every international situation is capable of being determined as a
matter of law’.
• Natural Law concepts?
• constitute the method for testing the validity of the positive (i.e. man-
made) rules?
• Some writers, particularly positivists, treat it as a sub-heading under
treaty and customary law and incapable of adding anything new to
international law unless it reflects the consent of states.
• Most authors agree that general principles do constitute a separate
source of law but of fairly limited scope, and this is reflected in the
decisions of the Permanent Court of International Justice and the
International Court of Justice.
• General principles of international law or municipal law ?
Chorzów Factory case
• In the Upper Silesia plebiscite a majority of 31,864 voters voted to
remain in Germany while 10,764 votes were given for Poland.
Following three Silesian uprisings, the eastern part of Silesia,
including Chorzow and Królewska Huta, was separated from Germany
and awarded to Poland in 1922.
• Migrations of people followed. Because of its strategic value, the case
of the nitrogen factory Oberschlesische Stickstoffwerke was argued
for years before the Permanent Court of International Justice, finally
setting some new legal precedences on what is "just" in international
relations.
• Germany sought a declaration that, the Court having decided in the German
Interests in Polish Upper Silesia Case (1926) P.C.I.J., Ser. A., No. 7 that the
Polish Government’s attitude towards certain German companies whose
undertakings it took over was not in conformity with arts. 6–22 of the
Convention concerning Upper Silesia of 15 May 1922 ( 9 L.N.T.S. 466 ), Poland
was now under a duty to compensate these companies.
• The Polish Government raised a preliminary objection to the jurisdiction on
the basis that art. 23(1) of the Convention, which gave jurisdiction over
‘differences of opinion resulting from [its] interpretation and application’, did
not contemplate differences in regard to reparation claimed for its violation,
and that the Convention further provided alternative remedies for the latter.
On 26 July 1927 , the Court held ‘[i]t is a principle of international law that the
breach of an engagement involves an obligation to make reparation in an
adequate form. Reparation therefore is the indispensable complement of a
failure to apply a convention … Differences relating to reparations, which may
be due by reason of failure to apply a convention, are consequently
differences relating to its application’
• The Court held that
• A State is held responsible for expropriation of alien property
• At International Law, a nation is responsible for acts of Government organs
or officers.
• It is a basic rule of international law that reparation is to be made for
violations of international law.
• ‘it is a general conception of law that every violation of an engagement
involves an obligation to make reparation’.
• “a principle of international law that the reparation of a wrong may consist
in an indemnity corresponding to the damage which the nationals of the
injured state have suffered as a result of the act which is contrary to
international law.”
• procedure, evidence and the machinery of the judicial process.
Background
• After World War I, two treaties regulated the rights of the German minorities in
Poland. These two treaties were part of an effort under the auspices of the
League of Nations to protect vulnerable minorities and, by extension, to ensure
peace in Europe.
• The Minorities Treaty between the Principal Allied and Associated Powers and
Poland, concluded on 28 June 1919, placed the protection of minority rights
under the guarantee of the League of Nations (Minorities, International
Protection).
• As to Upper Silesia, a plebiscite was held in 1921 to determine whether it should
form part of Germany or Poland. The overall results of the plebiscite were
favourable to Germany, but a different outcome in the easternmost part of Upper
Silesia, economic considerations, and an armed uprising of the Poles in 1922
prompted the League of Nations to agree to a partition of the territory, with a
large part passing over to Poland.
• These developments brought about the second treaty, namely the Convention
between Germany and Poland relating to Upper Silesia of 15 May 1922. It was
concluded under the auspices of the League.
Polish Law
• Article 1:In all cases in which the Crown, the German Reich the German States, the institutions of the
Reich or of the German States, the ex-Emperor of Germany or other members of the German
reigning houses, are, or were, after November 11th, 1918, inscribed in the land registers of the
former Prussian provinces as owners or possessors of real rights, the Polish Courts shall, in
accordance with the terms of the Treaty of Versailles of June 28th, 1919, inscribe ex officio in such
registers, the Treasury of the Polish State, in place of the persons or persons in law above mentioned.
• Article 2:Should one of the persons or persons in law referred to in Article 1, after November 11th,
1918, have alienated or encumbered the immoveable property in question, or if, after November
11th, 1918, a real right standing in the name of the personalities enumerated in Article 1 has been at
their request, or with their consent, transferred, suppressed, or has undergone any other change, the
Courts shall restore the entry in the land register as it would have been had the persons enumerated
in Article 1 not made such request or given the consent necessary to effect the changes made in the
land register.
• If the Registry of Mortgages receives a declaration of hypothec, or of a mortgage upon the estate or
upon the rent, and, if, and as soon as, it appears from the contents of the declaration that any one of
the persons enumerated in Article 1 is the beneficiary under the hypothec or mortgage, or was so
after November 11th, 1918, the Court in that case shall ex officio inscribe the Treasury of the Polish
State as such beneficiary under the hypothec or mortgage. The provisions of paragraph 1 of this
Article with regard to the restoration of the previous entries in the land registers, shall be applied in a
similar manner to the contents of these declarations.
• Article 5: The Treasury of the Polish State, inscribed in conformity with Article 1, as the owner of an
immoveable property, may demand the expulsion from that property of persons who, on the basis of
an agreement concluded with one of the persons enumerated in Article 1, continue in possession of
such property after the coming into force of this law.
• Article 5 of the law of July 14th, 1920, provides for the expulsion from the
lands in question of any persons who may occupy them under an agreement
with any of the proprietors for whom the Polish Treasury has been
substituted under Article 1 of the law, and by Article 1 it appears that those
for whom the Polish Treasury has been substituted include the German
States.
• The outstanding, fundamental point in the present case is the fact that the
persons whose rights are now in question are as a class persons of the
German race who settled on the lands in question under the Prussian law of
1886 and subsequent legislative acts, under contracts made with the
Prussian State.
• Indeed, it is for this very reason that Poland contends that the contracts now
under consideration are to be held invalid. Hence, although the law does not
expressly declare that the persons who are to be ousted from the lands are
persons of the German race, the inference that they are so is to be drawn
even from the terms of the law.
• In execution of this law, the Polish Government proceeded, through
the Courts, to oust the occupants of the land in pursuance of notices
served on them by the Polish authorities.
• The occupants resisted the attempt to oust them, on the ground that
this attempt constituted a violation of acquired lights which they
possessed under the law, and therefore an infraction of the Polish
Minorities Treaty.
• Declared that ‘private rights acquired under existing law do not cease
on a change of sovereignty . . . 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.
Corfu Channel Case - Background
• In 1946, during the Greek civil war, a series of three encounters took place in
the Corfu Channel, between Albania and the United Kingdom.
• On 15 May, the cruisers Orion and Superb passed through the northern part
of the Corfu Channel. Albanian shore batteries opened fire on the two ships,
coming within 200 yards (180 m) of the squadron, but striking neither
vessel.The United Kingdom lodged a formal protest, demanding an apology
from Albania. Albania stated that the ships had violated Albanian territorial
waters, and asserted that passage through the Corfu Channel required
Albanian permission. On 2 August, the United Kingdom stated that Royal
Navy ships would return any fire in the future.
• On 22 October, a Royal Navy flotilla composed of cruisers Mauritius and
Leander, and destroyers Saumarez and Volage, entered the Corfu
Channel. The ships were at Action Stations, with orders to return fire if
they were attacked. Their guns were not loaded, and were in a neutral
position—trained fore and aft, rather than aimed at the shore.[a] At
2:53 p.m., Saumarez struck a mine and was heavily damaged; thirty-six
people aboard were killed. The Volage took her in tow, only to strike
another mine at 4:16 p.m.; eight people were killed.
• A total of forty-four people died and forty-two others were injured, and
the Saumarez was damaged beyond repair. Shore batteries in the vicinity
were observed by the ships, but neither side took any action. At one
point, a boat flying an Albanian ensign and a white flag approached the
Volage to ask what the ships were doing. Writing in 2014, maritime
archaeologist James P. Delgado said of the
• On 12 and 13 November, the Royal Navy undertook a mine clearance
operation in the Corfu Channel, Operation Retail, which took place in
Albanian territorial waters without advance permission from that country.
Subsequently, the Albanian government formally complained to the United
Nations, describing the operation as an incursion into Albanian territorial
waters.
• On 9 December, the United Kingdom demanded reparations from Albania.
Albania denied involvement in the laying of mines, blaming Greece. In
January 1947, the United Kingdom attempted to involve the United Nations
Security Council. The Soviet Union objected, but the Security Council heard
the British complaint. A Soviet veto, supported by Poland, blocked a
resolution that would have accused Albania of indirect responsibility for
the minefield.
• The Security Council passed a resolution on 9 April 1947, with the Soviet
Union and Poland abstaining, recommending that the United Kingdom and
Albania resolve the dispute in the International Court of Justice
Issues
• Albania submitted a letter to the Court on 2 July, which partially accepted
the Security Council's recommendations.
• argued that a special agreement was the only valid way that the case could
be brought.
• objection stated that when at least one party was a state that was not
otherwise bound to submit to the Court's jurisdiction, proceedings could
only be instituted by special agreement.
• 40(1) of the ICJ Statute in its support, and stated that no such agreement
had been reached.
• Security Council resolution was not itself enough to compel Albania to
accept the jurisdiction of the Court. It also said that Albania's acceptance of
the obligations of a UN member state did not constitute express
acceptance of jurisdiction under the ICJ Statute.
• ‘this indirect evidence is admitted in all systems of law and its use is
recognised by international decisions’.
• In the Administrative Tribunal case,123 the Court dealt with the
problem of the dismissal of members of the United Nations
Secretariat staff and whether the General Assembly had the right to
refuse to give effect to awards to them made by the relevant Tribunal.
In giving its negative reply, the Court emphasised that:
• according to a well-established and generally recognised principle of
law, a judgment rendered by such a judicial body
Bosnia and Herzegovina v. Serbia and
Montenegro
• issue focused on the meaning of the 1996 decision of the Court
rejecting preliminary objections to jurisdiction.
• The Court emphasised that the principle ‘signifies that the decisions
of the Court are not only binding on the parties, but are final, in the
sense that they cannot be reopened by the parties as regards the
issues that have been determined, save by procedures, of an
exceptional nature, specially laid down for that purpose.
• The Court found—although not unanimously—that Serbia was
neither directly responsible for the Srebrenica genocide, nor that it
was complicit in it, but it did rule that Serbia had committed a breach
of the Genocide Convention by failing to prevent the genocide from
occurring and for not cooperating with the International Criminal
Tribunal for the former Yugoslavia (ICTY) in punishing the perpetrators
of the genocide, in particular General Ratko Mladić, and for violating
its obligation to comply with the provisional measures ordered by the
Court.
Temple Case
• The Court has also considered the principle of estoppel which
provides that a party that has acquiesced in a particular situation
cannot then proceed to challenge it: Estoppel
Cameroon v. Nigeria
• ‘An estoppel would only arise if by its acts or declarations Cameroon
had consistently made it fully clear that it had agreed to settle the
boundary dispute submitted to the Court by bilateral avenues alone.
It would further be necessary that, by relying on such an attitude,
Nigeria had changed position to its own detriment or had suffered
some prejudice.’
AMCO v. Republic of Indonesia
• ‘the full compensation of prejudice, by awarding to the injured party
the damnum emergens and lucrum cessans is a principle common to
the main systems of municipal law, and therefore, a general principle
of law which may be considered as a source of international law’
Nuclear Tests cases
• 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 this co-operation in many fields is becoming
increasingly essential.
• Just as the very rule of pacta sunt servanda in the law of treaties is
based on good faith, so also is the binding character of an
international obligation assumed by unilateral obligation.
Equity in International Law
• Diversion of Water from the Meuse case: principles of equity have
long been treated as part of international law and applied by the
courts.
• ‘Under article 38 of the Statute, if not independently of that article,
the Court has some freedom to consider principles of equity as part
of the international law which it must apply.’
Rann of Kucch Arbitration
• As a preliminary question, the Tribunal during its first session in
February, 1966, dismissed a motion made by Pakistan and opposed
by India that the Tribunal should declare that it had the power to
decide the case ex aequo et bono.
• The Tribunal held that no such power had been conferred upon it by
mutual agreement between the parties, but it noted that equity
forms part of international law and that the parties were free to
present and develop their cases with reliance on principles of equity.
The arbitration proceedings were thus judicial in character.
Issues
• whether the boundary in dispute is a historically recognised and well-
established boundary. (evidence not superior than competence)
• whether Great Britain, acting either as territorial sovereign, or as Paramount
Power, must be held by its conduct to have recognised, accepted or
acquiesced in the claim of Kutch that the Rann was Kutch territory, thereby
precluding or estopping Pakistan, as successor of Sind and thus of the
territorial sovereign rights of Great Britain in the region, from successfully
claiming any part of the disputed territory. One question which arises in
considering this issue is the true meaning of "the Rann" in the context of
related
• whether the British Administration in Sind and superior British authorities,
acting not as Paramount Power but as territorial sovereigns, performed acts,
directly or indirectly, in assertion of rights of territorial sovereignty over the
disputed tract which were of such a character as to be sufficient in law to
confer title to the territory, or parts thereof, upon Sind, and thereby upon its
successor, Pakistan; or, conversely, whether such exercise of sovereignty on
the part of Kutch and the other States abutting upon the Great Rann, to
whose rights India is successor, would instead operate to confer title on India
to the territory, or to parts thereof
• ‘it would be inequitable to recognise these inlets as foreign territory.
It would be conducive to friction and conflict. The paramount
consideration of promoting peace and stability in this region compels
the recognition and confirmation that this territory, which is wholly
surrounded by Pakistan territory, also be regarded as such.’
• ‘documents produced from Indian Government archives and forming
a cornerstone of Pakistan's argument had a decisive bearing on the
outcome of the case.’
Libya/Malta Case
• ‘the justice of which equity is an emanation, is not an abstract justice
but justice according to the rule of law; which is to say that its
application should display consistency and a degree of predictability;
even though it also looks beyond it to principles of more general
application’.

• Equity has been used by the courts as a way of mitigating certain


inequities, not as a method of refashioning nature to the detriment of
legal rules.
Tunisia/Libya Continental Shelf Case
• “it is bound to apply equitable principles as part of international law,
and to balance up the various considerations which it regards as
relevant in order to produce an equitable result. While it is clear that
no rigid rules exist as to the exact weight to be attached to each
element in the case, this is very far from being an exercise of
discretion or conciliation; nor is it an operation of distributive justice.”
UNCLOS
• Article 59: conflicts between coastal and other states regarding the
exclusive economic zone are to be resolved ‘on the basis of equity’,
• article 74: delimitation of the zone between states with opposite or
adjacent coasts is to be effected by agreement on the basis of
international law in order to achieve an equitable solution.
• A similar provision applies by article 83 to the delimitation of the
continental shelf.

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