The Third Source of International Law
2
The Third Source of International Law
I. INTRODUCTION
AS OUTLINED IN the previous chapter, there has been a marked reluctance amongst international legal scholars treating the area of humanitarian intervention, and indeed the use of force in general, to deal with the third source of international law, namely general principles, and of any equitable gap-filling or correctional mechanisms contained therein. The following chapters will focus upon a detailed examination of the ‘general principles’ category, outlining its content and extent, and to what degree an international law equivalent of the common law notion of ‘equity’ may have presented itself as a subset of this source.
This chapter shall commence with an examination of Article 38(1) of the Statute of the International Court of Justice (ICJ) and shall examine the merits of its claim to represent an accurate description of the sources of international law. I shall look at how the current formulation of Article 38 was arrived at, and in particular, how the ‘general principles’ clause was formulated, including an analysis of the legal landscape in which it was formulated. Thereafter, I will examine the still more important matter of subsequent practice. In doing so, I shall look at how Article 38(1) has been applied, based upon the practice of the World Court, and shall ask whether it has represented a departure from the previous formulation of international legal sources.
II. ARTICLE 38(1) AS THE WELLSPRING OF INTERNATIONAL LEGAL SOURCES
Article 38(1) of the ICJ Statute prescribes that the Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international treaties; (b) customary international law; (c) the general principles of law recognised by civilised nations; and (d) judicial decisions and the teachings of leading scholars as a subsidiary means for determination of rules of law.1 The order in which the first three component parts of international law are enumerated is not intended to denote a juridical hierarchy, but merely to indicate the order in which they would normally present themselves to the mind of the international judge.2 While there remains a limited amount of debate as to the scope of Article 38(1), it is now nonetheless widely accepted that the Article may be treated as the authoritative representation of the sources of general international law and their state.3 Further testimony to the declaratory nature of Article 38(1) may be found in a memorandum of the UN Secretary-General, who, when speaking of the sources of international law stated that ‘The codification of this aspect of international law has been successfully accomplished by the definition of the sources of international law as given in Article 38…That definition has been repeatedly treated as authoritative by international arbitral tribunals’.4 This position is further supported by the fact that in pleadings before the ICJ and its predecessor the Permanent Court of International Justice (PCIJ), no party has ever attempted to argue that the sources of law to be applied by either court were not precisely representative of general international law as a whole. Hence, one may state that there is a general concurrence amongst States that Article 38(1) represents the standard encapsulation of the sources of international law. It is also germane to note that Article 92 of the UN Charter prescribes that the ICJ Statute forms an integral part of the Charter text.
The inclusion of international treaties and customary international law as primary sources of international law was a relatively uncontroversial decision. The inclusion of judicial decisions and the teachings of leading publicists also caused little upset, given that such decisions and teachings do not of themselves give rise to or create legal rules, but merely serve as a means of determining such rules, and as such, may also be denoted as law-determining agencies rather than subsidiary sources.5 However, the inclusion of ‘the general principles of law recognised by civilised nations’ caused somewhat rather more of a stir. In the following sections, I shall attempt to explain how this phrase was arrived at, and what precisely it may be held to denote.
Article 38 of the ICJ Statute mirrors that of the Statute of the PCIJ – its predecessor, except for superficial alterations to the numbering of the paragraphs and sub-paragraphs, and the addition of a few words of no significant practical consequence in the introductory stanza. When the PCIJ Statute was first published, the phrase ‘les principes généraux de droit reconnus par les nations civilisées’ and its insertion as part of the law to be examined by the PCIJ generated considerable discussion amongst international legal scholars.
Lauterpacht places general principles and analogies from municipal law at the centre of his understanding of the international legal order, identifying them with natural law, and stating that:
[W]ith the Statute of the Permanent Court of International Justice, which declared ‘general principles of law recognised by civilised nations’ – in some ways a modern version of the law of nature – to be one of the primary sources of international law, what was of the essence of the law of nature, namely its conformity with the actual legal experience of mankind, came once more into its own.6
The substantive aspect of Lauterpacht’s thesis is based in natural law, but the explanation of its operation is rooted in the relative indeterminacy of law as expressed in the doctrine of gradual concretisation. He states that the ambivalence inherent in natural law ideology is ‘only slightly relevant in the field of international law’. There, he argues, ‘it has acted as a lever of progress … the uncertainty of the “higher law” is preferable to the arbitrariness and insolence of naked force’.7 Lauterpacht wrote most of the above in the context of praeter legem application of general principles and/or natural law, in a series of discussions related to non liquet situations. He argued that avoiding non liquet was the principal reason why Article 38(1)(c) had been drafted in the manner that it was, and that such general principles and/or natural law also helped to render treaties more effective as a supplemental means of regulating their applicability.8 Lauterpacht further stated that gaps in the law were something unavoidable, and that in international law, ‘in a sense they are the rule rather than the exception’.9 Dealing with these gaps was to be achieved by reference to the ‘adversarial principle’, demanding that a decision be made possible in every case; and by recourse to general principles of law (incorporating, per Lauterpacht, natural law doctrine) under Article 38(1)(c). This two-prong mechanism would make ‘certain that there would always be at hand, if necessary, a legal rule or principle for the legal solution of any controversy’.10 Per Lauterpacht, lacunae arise in cases where ‘there is no clear rule of international law in existence’, but in such situations, tribunals may fill the gaps through resort to general principles. Ergo, the international legal system is complete, there are no real gaps (since principles fill all lacunae which arise), and ‘the principle affirming the completeness of the international legal order … is the positive formulation of the prohibition of non liquet’.11
Julius Stone presented what has been termed the ‘paradigmatic counter-thesis’ to Lauterpacht.12 Stone’s position is that the prohibition of non liquet does not arise from application of general principles; that recourse to municipal analogies is unwarranted and dangerous given the differences in the exercise of international judicial powers; and that there is no residual ‘closing rule’ in international law,13 leading to the completeness of the system. Stone argues instead that if non liquet is to be avoided, then international tribunals must be (and are) endowed with lawmaking power in this regard. Therefore, they may fill gaps praeter legem if and when such a need arises. Karl Engisch has suggested that a Rechtsfreier Raum exists in international law, as well as in domestic law, related to acts about which the law says nothing, and that therefore there may exist a space that is simply devoid of law.14 Stone seizes upon this reasoning, arguing that ‘gap-filling’ general principles and/or natural law constituting a residual closing rule ‘would directly provide … a substantive rule in contentious cases … any absence of prohibition would, under this application, constitute the presence of a legal permission. The “no-laws land” of non liquet would be occupied by permissive legal rules’.15 While even Lauterpacht occasionally cast doubt on the existence of such a ‘residual principle’,16 Stone was more sceptical still, opining that ‘There may be conduct … about which the norms say nothing at all’.17
The debate about gaps in the law may thus be summarised as follows: in order to prevent a non liquet, Lauterpacht argued for the completeness of the international legal system through use of the adversarial principle and general principles, incorporating natural law. Stone, a contrario, posited that gaps were inherent and unavoidable in international law, and that international courts and tribunals must therefore necessarily be endowed with law-making powers.
For the purposes of this volume, the above debate is certainly highly relevant. The case law of the ICJ and PCIJ is leant upon heavily in subsequent chapters in order to give an accurate representation of what content the principal judicial organ of the United Nations has assigned to the ‘general principles of law recognised by civilised nations’ as a normative category. For the purposes of this discussion, the assumption is made that the Court is not itself a legislator, as Stone would suggest, but rather that it interprets the provisions of international law and applies them to the case at hand. In cases where the norms themselves are obscure or in dispute (as is undoubtedly the case with much of the general principles corpus) ICJ/PCIJ judgments are relied upon as a subsidiary means of determining or clarifying their context and extent. Such an interpretation is in accordance with Article 38(1)(d) of the ICJ Statute, which establishes the pronouncements of international tribunals and the teachings of leading scholars as a subsidiary source of international law for interpretation purposes.
Of course, it would also have been possible to examine the opinions of leading scholars on general principles of law for guidance in this regard. However, a detailed examination would perhaps not have been a fruitful endeavour, bringing forth little clarity. The initial debate regarding the normative content of the ‘general principles of law recognised by civilised nations’ category enunciated in the PCIJ Statute brought forth three schools of thought. A first school, led by Morelli,20 Castberg21 and Anzilotti,22 held that the expression referred primarily to general principles of international law, and only to a subsidiary degree, to principles found in the municipal law of domestic legal systems.23 A second school held, a contrario, that the expression entailed principles obtaining in municipal law, more than principles of international law.24 A third school, represented by Lauterpacht25 and Ripert26 believed particularly that the phrase referred to principles of private law from domestic legal systems that had been transposed to the international legal sphere.27 However, much of the debate which ensued during the years immediately subsequent to the initial enactment of the PCIJ Statute was conducted without the benefit of having examined the travaux préparatoires of the Statute and paid only scant attention to what international legal practice had termed ‘general principles’ prior to the Statute’s drafting. Therefore, interesting though the content of this debate may be, it is obviously more germane to examine the rival theories in light of these additional sources of information, in order to decide what, in fact, constituted the intention of the drafters of the Statute.
It would seem that in the decades since these early debates, little has changed, and that the doctrinal position amongst legal scholars is still the subject of some debate. A recent article by Jaye Ellis in the European Journal of International Law28 gave rise to immediate criticism as to the author’s conception of the general principles category, and the methods by which such principles may be identified.29 Since the teachings of leading scholars were and still are far from uniform on the matter of general principles, the judgments of the PCIJ/ICJ seem an obvious place to look for guidance in this area.30 I would however make a number of observations. First, whether or not general principles of law constitute a ‘closing rule’ in international law (ie whether we adopt Lauterpacht or Stone’s position31), the fact is that such principles do enjoy normative force, and normative parity with treaty and custom, per Article 38(1) of the ICJ Statute. They must therefore be considered when questions arise as to the legality of acts, not just before the ICJ, but throughout international law in general. Courts, and more particularly the ICJ and PCIJ before it, are not legislating when they apply such principles, they are merely applying a universally acknowledged source. The fact that the content of this normative source is somewhat vague and flexible is another matter. It is precisely for this reason that Article 38(1)(d) prescribes that the judgments of international courts and tribunals may be used as a subsidiary means of determining the content of certain norms. In some cases, norms (including treaty and customary norms, and not merely general principles) are unclear. The value of international judgments in this regard is that they often serve to frame such norms in a clearer manner. It is for this reason that I have made such willing use of the ICJ and PCIJ jurisprudence.
A. Some Preliminary Remarks on Treaty Interpretation
The current chapter of this volume adopts an historical perspective on Article 38(1) of the ICJ Statute. It is argued herein that this Article encapsulates a reflection of the sources of international law as they stand. However, since the main thrust of this book will concentrate upon the relationship between general principles and the way in which they impact upon the regime governing the use of force by States, it would appear germane to insert here some brief comments upon the dynamics which govern such rapports generally. Since the United Nations Charter is an international treaty, it is governed by the customary international law rules relating to international treaties. Such rules have, in the main, been codified by the 1969 Vienna Convention on the Law of Treaties (VCLT32), and a number of these rules merit examination here.33
Particularly for the present purposes, it is necessary to examine under what circumstances the World Court, or any international tribunal, may wish to move beyond the primary text of a treaty document to determine its correct meaning, by reference to extraneous legal sources such as customary international law, other treaties, and for our particular purposes, general principles of law. Such a study is especially necessary due to the prevalent view that the UN Charter provides the principal rules of guidance relating to the use of force by States and that general principles have little or nothing to do with the area.
Article 31(3)(c) VCLT prescribes that
There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.
As an aspect of the interpretative process, it must be taken into account alongside, and integral to: Article 31(1), the ‘basic rule’ of treaty interpretation – that is, that a treaty is to be interpreted in good faith, with the ordinary meaning given to the terms of the treaty in the light of its object and purpose; Article 31(2), the treaty’s context; Article 31(3)(a) and (b), subsequent agreements and subsequent practice; Article 31(4), any relevant special meaning; and Article 32, dealing with supplementary means of interpretation. However, as French notes, ‘as a feature of treaty interpretation, it has long since been marginalised and ignored’,34 while Sands comments that
what it actually means in practice is difficult to know since it appears to have been expressly relied upon only very occasionally in judicial practice. It also seems to have attracted little academic comment. There appears to be a general reluctance to refer to Article 31(3)(c).35
This is a common complaint regarding legal provisions with a nexus to the general principles category, as has already been noted. Nonetheless, it is important to note that the 2004 Report of the International Law Commission (ILC) stated that the fact ‘that article 31(3)(c) was rarely expressly cited should not obscure its importance as a rule of treaty interpretation’.36 It is further worth noting that Article 31 in its entirety is entitled the ‘general rule of interpretation’, and not the basic rule in Article 31(1) as is sometimes stated in legal treatises. It is of course true that not all elements of Article 31 will be relevant in all cases. However, when they are, to whatever extent, they must be utilised. Article 31(2) and (3) are not merely discretionary appendages, but rather prescriptive and mandatory components of the general rule of treaty interpretation. Article 31(3) is unambiguous about this, stating ‘There shall be taken into account’ and leaving no room for judicial discretion in this regard. As French notes, while the above rules on treaty interpretation are incumbent upon judges in international tribunals, they are equally so upon States who wish to interpret international treaties in accordance with the rules established in international law. However, lamentably, practice demonstrates that there is perhaps a lack of awareness of the scope of these rules, though this has not prevented tribunals from occasionally employing general principles and other extraneous norms in interpreting treaties.37
However, while the legal possibility to look to, inter alia, general principles in treaty interpretation is clearly confirmed by Article 31 VCLT, the question remains as to under what circumstances such considerations may be taken into account and how they may impact upon treaty norms. Tribunals may simply wish to refer to extraneous norms to provide support to an interpretation which was already reached through analysis of a treaty alone. Such an approach is relatively uncontroversial. However, in cases where recourse to other rules in order to clarify the meaning of an ambiguous provision is merited, the controversy may be said to begin, since ‘clarification’ may itself be construed rather broadly. Going still further, the idea of employing extraneous norms to ‘read into’ a treaty additional rights or obligations, while a fairly common procedure in domestic fora, may be viewed with some scepticism at international level, at least by those who conceive of international law from a purely voluntarist point of view. Further, legal certainty and judicial self-restraint remain fundamental to the operation of a viable and trusted international legal system. Hence, somewhat scant use of the reasoning laid down in Article 31(3)(c) is perhaps unsurprising.
Nonetheless, it remains the case, as noted by Koroma J that ‘the application of general international law on [treaty norms] forms part of the interpretation process which [the World Court] has been entrusted to carry out’.38 Simma J agrees, citing the importance of ‘the rules of general international law “surrounding” the treaty’.39 Such a position seems completely logical, since a contrary interpretation would render Article 31(3)(c) a dead letter. Orakhelashvili notes that the purpose of referring to such extraneous rules is, ‘normally, not to defer the provisions … but to clarify the content’, but nonetheless leaves open the possibility of treaty provisions being deferred by extraneous norms in limited circumstances.40 This is certainly the case, for example where the extraneous rules in question constitute norms of ius cogens, and even the lex specialis principle will not operate to the exclusion of such norms.41 As noted in the Iron Rhine Railway arbitration, such extraneous principles, particularly those capable of evolving interpretations, are considered particularly important when the treaty in question ‘was not intended as a treaty of limited or fixed duration’. This would certainly be the case when discussing the UN Charter.42 The matter of treaty interpretation is a well-travelled road in international legal scholarship, and I do not intend to make it the principal focus of this work. However, it is as well to be clear that the general rule on treaty interpretation does allow for the employment of extraneous norms, including general principles of law, in interpreting international treaties.
B. Use and Development of General Principles in Early International Arbitral Practice
Despite the above, it is clear that the application of general principles of law in one form or another was both frequent and prevalent in international arbitral practice before the advent of the PCIJ.43 This was perhaps even more so the case then than in modern times, since as international law has continued to develop its other sources, principally in the form of a veritable explosion of multilateral treaty law, but also in terms of new forms of custom, the need for resort to general principles within well-developed branches of international law has decreased.44 As explained above, judges are slow to refer to general principles to read new rights and obligations into treaties. However, this is not to say that the need for resort to general principles has disappeared, as recent judicial opinion makes clear.45
In the early phases of international arbitration, frequent recourse was had to general principles of Roman law.47 Later, when statutes were adopted, States laid down applicable law for tribunals, but the formulations for the law to be applied have varied, with phrases such as ‘justice, equity and the law of nations’;48 ‘the principles of justice, the law of nations and the stipulations of the treaty’;49 and proceeding upon ‘the basis of respect of law’,50 amongst a myriad of others, being employed. Such broad terminology suggests that a strictly positivist construction of international law provided an insufficient legal basis for the settlement of all international legal disputes, and that the need was had for recourse to a further source of international law in addition to custom and treaty. It was clear that terminology such as ‘general principles of law’, ‘principles of justice’ and ‘principles of equity’ was employed in such treaties as denoting a legal source, in contradistinction to decisions taken ‘ex aequo et bono’, a situation reflected exactly by the two successive Statutes of the World Court.51 I shall now embark upon a brief examination of how such principles were applied in such tribunals prior to, and briefly, contemporaneously with, the establishment of the World Court, and what their content entailed in this period. It is evident that such a treatment must necessarily be illustrative rather than exhaustive in a study of this size. Bearing this in mind, I shall restrict myself to demonstrating that such a practice of resort to general principles did indeed exist, with the aid of a number of examples.
i. General Principles Infra Legem
Reasoning infra legem is without a doubt the most easily applicable and least controversial employment of general principles in international law. Despite the desiderata that the law be clear and not contradict itself, it occurs on an occasional basis that legal systems provide two competing possible solutions for a legal conundrum. When this happens, it frequently falls to judges or arbitrators to decide which course to choose. As well as canons of interpretation, the treatment of which lies outside the ambit of this chapter, the judge or arbitrator may be guided in his decision by the general principles of law. This theory fits in well with the image of general principles as a subsidiary source of international law
An important example of the above at international level is the principle of good faith, this principle being inherent in all domestic legal systems to some degree or another and having thus been carried into the international sphere. In the Metzger and Co case, it was held that ‘It cannot be that good faith is less obligatory upon nations than upon individuals in carrying out agreements’.52 In the Venezuelan Preferential Claims case, it was held that the principle of good faith ‘ought to govern international relations’.53
ii. General Principles Praeter Legem
The application of general principles praeter legem is based upon the idea that the written or customary law may be incomplete in certain cases, and that in such cases – which the lawmaker failed to account for – the risk of a non liquet or the finding of a lacuna within the legal system may be avoided by resort to general principles. This device also fits well with the idea that general principles may be treated as a subsidiary source of international law.
The Eastern Extension case is another good example of an arbitral tribunal condoning the use of general principles as a gap-filling device. Here, the tribunal expressly condoned the use of equity for such purposes.56
iii. General Principles Contra Legem
As noted earlier, the employment of general principles as a motive for disregarding strictly positive law was and remains a controversial idea.57 Nonetheless, the early arbitral awards make it clear that such a notion was not alien to the fledgling system of international justice. For example, in the case of The Neptune, settled as early as 1797 by the international arbitral tribunal established by the 1794 Jay Treaty, the court held that under the (now defunct) general principle of self-preservation belonging to States, a situation of necessity might allow for the setting aside of all written and customary law in certain circumstances, but that such necessity ‘must be absolute and irresistible’, thus establishing a very high threshold to be met, but nonetheless allowing for the possible operation of general principles of international law contra legem strictum.58 This case was partly followed by an individual opinion of Anzilotti J in the PCIJ, where he noted that ‘necessity may excuse the non-observance of international obligations’.59 Such an approach is controversial in part because it strongly contradicts the idea that general principles are a subsidiary source of international law, and rather leans toward the suggestion that in certain instances they may have normative priority or hierarchy over positive law.
However, to what extent a case of necessity will allow for the setting aside of other law will depend heavily upon the underlying circumstances. In the Faber case, the German–Venezuelan Mixed Claims Commission set a rather high bar for the application of such a principle, which seems at odds with The Neptune. In a case concerning the shared use of an adjacent river, claimed by Germany as a right, the Commission held that
[t]he rights of an individual are not created or determined by his wants or even his necessities. The starving man who takes the bread of another is nonetheless a thief, legally, although the morality of the act is so slight as to justify it.
The Commission concluded that, generally, the wants or necessities of one party cannot create legal rights for them, or infringe upon the existing rights of others.60
A general principle was held to alter the terms of a treaty in the Affaire Yuille, Shortridge et Cie in 1861. Here, the arbitral tribunal recognised restrictions to exist upon usurious interest rates by virtue of what it referred to as ‘droit commun’, since there was no applicable treaty or custom preventing such rates being charged at international level. Here, in filling the gap in international law praeter legem, the principle which was used to remedy this lacuna was applied contra legem, that is against the terms of the agreement in question.61
This judgment was reflected in the Angola case, heard before the Portugo-German Arbitral Tribunal, settled as late as 1928, which justified the notion of reprisals in international law in limited circumstances, on the basis of the same general principle of self-preservation, with the effect being one of
self-help [Selbsthilfehandlung] … to suspend temporarily the observance of a particular rule of the law of nations in the relations between the two States … limited by the experiences of humanity and by the rules of good faith [Treu und Glauben], applicable in International Relations.62
Here it is germane to note that the setting aside of legal rules is tempered by the application of general principles such as good faith which continue to apply, even when the written law has been set aside. This suggests that general principles function en bloc and should not be separated from one another.
General principles have even been used to overturn other general rules in certain circumstances. In the Finnish Vessels case, the rule that one must exhaust local domestic remedies before resorting to international justice was held to be ‘trumped’ by the rule that States must carry out their obligations in good faith and that fraudulent fulfilment of such obligations corrupts the act in question. The respondent State must do real justice and must allow access to effective remedies, otherwise the rule will be set aside, and cannot be used as a shield.65
iv. General Principles, Generally
Verdross notes that arbitral awards before the advent of the PCIJ were broadly reflective of one another, and that the understanding of general principles in the various international courts and tribunals was consistent.66 Even decisions which failed to uphold the existence of general principles often noted, obiter dictum or otherwise, that were such principles to exist in a given case, they could operate to fill gaps in, and temper the law, even going so far as to render otherwise permissible acts illegal.67 The fact that resort to such principles was relatively widespread and that such principles were relatively consistently applied is little short of remarkable, insofar as the various arbitral courts and tribunals were located in different parts of the world, operating in different languages and in different areas of international law. Knowledge of comparative law as a discipline was in its infancy, and yet references to the fact that certain principles were part of ‘universal jurisprudence’, recognised by ‘the legislation of all nations’ were often used to justify the resort to particular general principles.68 The adoption of common principles – such as the ultra vires doctrine for acts of State officials – were justified on the basis of ‘logic’ and ‘justice’.69
a. The Drafting of the PCIJ Statute
It was with this legal landscape that the Advisory Committee of Jurists – assembled by the League of Nations to draft a statute for a new Permanent World Court – was faced. It was a landscape in which general principles had played a key role in the limited history of international adjudication, but where their normative value was disputable. It is therefore highly germane to examine the arguments advanced by these jurists as regards the sources of law to be applied by the new court, how they would be described in the ‘sources’ Article of the Statute and what would be the position as regards normative hierarchy, having already acquainted ourselves with the legal landscape of the day.
The debate as to the applicable sources of law began with the President of the Committee, Baron Descamps of Belgium, suggesting that the new Permanent Court ought to apply conventional law, international custom, and ‘the rules of international law as recognised by the legal conscience of civilised nations’, and ‘international jurisprudence’ (case law), in that order.71 It is not entirely clear as to whether the phrase ‘in that order’ entailed normative hierarchy or suggested that if the judge were satisfied that the treaty in question was clear enough to apply directly, he ought not consider the import of customary international law or general principles on the case at hand.