equity and general principles of law#akehurstsource

British Institute of International and Comparative Law

Equity and General Principles of LawAuthor(s): Michael AkehurstSource: The International and Comparative Law Quarterly, Vol. 25, No. 4 (Oct., 1976), pp. 801-825Published by: Cambridge University Press on behalf of the British Institute of International andComparative LawStable URL: http://www.jstor.org/stable/758525 .

Accessed: 27/06/2014 14:39

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Cambridge University Press and British Institute of International and Comparative Law are collaborating withJSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly.

http://www.jstor.org

This content downloaded from 128.248.155.225 on Fri, 27 Jun 2014 14:39:50 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=cup

http://www.jstor.org/action/showPublisher?publisherCode=biicl

http://www.jstor.org/action/showPublisher?publisherCode=biicl

http://www.jstor.org/stable/758525?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


EQUITY AND GENERAL PRINCIPLES OF LAW

By

MICHAEL AKEHURST *

THERE are many cases in which international tribunals have applied equity. However, some of these cases need to be distinguished at the outset.

In the first place, international tribunals have often been authorised by treaty to apply equity. Such cases are obviously no authority for cases where a similar authorisation has not been given to the tribunals,? and will not be discussed in the present article.2

It is also necessary to exclude cases in which an equitable principle is incorporated in a rule derived from some other source of international law, such as custom; when a tribunal applies such a rule it is really applying a rule of customary law,3 and its judgment cannot be used as a precedent for applying equitable principles which are not incorporated in customary law.4

The three functions of equity Despite occasional statements to the contrary,5 the absence of an

express authorisation to apply equity does not necessarily mean that an international tribunal is forbidden to apply equity. However, in order to assess how far a tribunal can go in applying equity without being specifically authorised to do so, it is necessary to begin by classifying the various functions which equity can perform.

Equity can perform three functions-it can be used to adapt the law to the facts of individual cases (equity infra legem); it can be used to fill gaps in the law (equity praeter legem); and it can be used as a reason for refusing to apply unjust laws (equity contra legem). These

* Reader in Law, Keele University. 1 Except where they contain dicta that a similar decision could have been reached

by a tribunal not authorised to apply equity; but such dicta are seldom found in practice.

2 They are discussed at length in Jenks, The Prospects of International Adjudication (1964) Chap. 7.

3 As in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 33, 35-36, 46, 47, 136, 140-142, 212 et seq. See also the Fisheries Jurisdiction case [1974] ibid. 3, 33. Cases holding that equitable compensation must be paid for expropriation fall into the same category: Chorz6w Factory case (1928) P.C.I.J., Series A, No. 17, p. 46; Goldenberg case (1928) 2 R.I.A.A. 903, 909.

4 Except where they contain dicta about the applicability of equitable principles which are not incorporated in customary law.

5 e.g. by Judge Koretsky in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 165-167. See also the case cited by Strupp (1939) 33 Recueil des cours 357, 386-387.

801



802 International and Comparative Law Quarterly [VOL. 25

functions merge into one another to some extent; in particular, equity infra legem can be used in a wide number of situations, ranging from cases which differ only slightly from a strict application of the letter of the law, through cases where the spirit of the law is made to prevail over its letter, to cases where equitable exceptions are inferred into a rule of law. Consequently, a judge who wishes not to apply a rule of law can say that application of the letter of the law would be contrary to its spirit or that the legislator must have intended that there should be exceptions to the letter of the law (equity infra legem), or that the law does not apply to the case and that the judge can fill the resulting gap by recourse to equity (equity praeter legem) or that the law is unjust and should not be applied (equity contra legem). Not surprisingly, therefore, some (but not all) of the decisions of international tribunals are hard to fit into any one of the three classifications.

Application of equity infra legem All authors admit that an international tribunal can apply equity

infra legem, even if it is not expressly authorised to do so, although they differ as to the exact meaning of equity infra legem (especially the question whether it includes inferring equitable exceptions into legal rules).6

In many cases where it is impossible to quantify the damages precisely, international tribunals have made an equitable estimate of the compensation to which the claimant is entitled.' The role played by equity in these cases is a modest one. It is not used to determine entitlement to relief 8 or remoteness of damage,9 but only to calculate the measure of damages.'0 If there is a rule of law entitling the claimant to compensation for pain and suffering (to take one example), the

6 Degan, L'dquite et le droit international (1970) pp. 26-29. Cf. the somewhat contradictory remarks of Judge Ammoun in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 132 et seq., and in the Barcelona Traction case [1970] ibid. 3, 333.

7 Degan, op. cit., supra, n. 6, pp. 158 et seq.; Rousseau, Droit international public (1970) Vol. 1, p. 406; Akehurst, The Law Governing Employment in International Organisations (1967) pp. 85-88; 2 R.I.A.A. 726, 818-819, 1032-1033, 1046, 1073- 1076, 1139, 1157-1158; 5 R.I.A.A. 162, 290; Dundonald case (1873), de La Pradelle and Politis 3 Recueil des arbitrages internationaux (1954), 441, 451.

But there are limits to this procedure. A tribunal cannot award a lump sum for a mass of different claims without the consent of the parties: Lighthouses case (1956) 12 R.I.A.A. 155, 187-188. Similarly, when no evidence whatever of the extent of the loss is produced, equity does not allow the award of damages; Maninat case (1905) 10 R.I.A.A. 55, 82.

8 Except in some dubious decisions of the O.E.E.C./O.E.C.D. Appeals Board: Akehurst, op. cit., supra, n. 7, p. 87.

9 With the exceptions of the Yuille, Shortridge case (1861), de La Pradelle and Politis 2 Recueil des arbitrages internationaux (1957), 2nd ed., 108-109, and the Lacaze case (1864) ibid. 298.

to For the meanings of these terms, see P. M. North, Cheshire's Private Inter- national Law, 9th ed. (1974), pp. 700 et seq.



OCT. 1976] Equity and General Principles of Law 803

law obviously does not intend the claimant to be deprived of compensation solely because damages for pain and suffering cannot be calculated with the same degree of precision as loss of earnings; by implication, therefore, the law itself requires the tribunal to make an

equitable estimate of the compensation due. Similar decisions have been reached concerning interest and costs.

The right to interest is not based on equity but (usually) on a general principle of law; however, it is within the tribunal's discretion to fix what it regards as a fair rate of interest." Similarly, a tribunal's power to award costs is not derived from equity, but a tribunal has a discretion to make what it regards as a fair order concerning costs. 2

In the British Guiana-Brazil Boundary arbitration, the arbitrator was required to determine the boundary between British Guiana and Brazil. He found that there was insufficient evidence to decide the

controversy over certain parts of the disputed territory, and accepted as a rule of necessity that he should make the division, taking account of lines traced by nature and giving preference to the line which, being best defined throughout its entire course, afforded the most equitable partition of the disputed territory.13 Here again, as in the cases concerning damages, interest and costs, recourse to equity was essential in order to enable the arbitrator to discharge his legal functions; if he had not relied on equity, he would have been unable to determine the boundary, as the arbitration agreement required him to do.

A somewhat bolder use of equity was advocated in the Romberg case, where the tribunal proclaimed its right to decide by "taking account of what it deems just and equitable rather than minutely observing legal procedures and formalities" 14; however, the legal formalities which were disregarded were rules of municipal law, not rules of international law.'l

Finally, international tribunals have sometimes claimed the power to use equity to "temperer la rigueur excessive du droit positif" 16;

equity can be invoked "comme principe . . . correctif dans les cas exceptionnels oi- l'application du droit strict ambnerait a des resultats 6videmment injustes." 17

11 Wimbledon case (1923) P.C.I.J., Series A, No. 1, p. 32; Yuille, Shortridge case (cited supra, h. 9).

12 Tinoco claims (1923) 1 R.I.A.A. 371, 399; Radio Corporation of America case (1935) 3 R.I.A.A. 1623, 1636.

13 11 R.I.A.A. 21. See also the Rann of Kutch arbitration (1968) 7 International Legal Materials 633, 692.

14 De La Pradelle and Politis 2 Recueil des arbitrages internationaux (1957), 2nd ed., 564, 565.

15 Ibid. See also the Shufeldt case (1930) 2 R.I.A.A. 1081, 1097-1098. 16 Direction gendrale des ports v. Schwartz (1927) 7 Recueil des decisions des

tribunaux arbitraux mixtes 744. 17 Pinson case (1928) 5 R.I.A.A. 327, 355.




This process is akin to the technique of distinguishing practised by judges in common law countries; a rule of customary law, which was stated in over-wide terms on previous occasions, is held not to

apply to a different factual situation. Thus in the Lighthouse case, the Permanent Court of Arbitration held that justice should be taken into account as a ground for distinguishing between different types of situation which could occur in the context of State succession.18 In the Barcelona Traction case, Judge Fitzmaurice took justice into account as a ground for limiting the scope of the continuity rule

applicable to the nationality of claims.'9 He also suggested that equity required that exceptions should be made to the principle that the legal personality of a company is distinct from that of its shareholders.20

Equity has sometimes been taken into account to distinguish the rules about compensation which would normally have been applicable. The poverty of the defendant State was used as an argument for reducing the compensation payable in the Spadafora case,21 but the Permanent Court decided otherwise in the Serbian Loans case.22 In the British Claims in Spanish Morocco case the arbitrator held that

Spain's prolonged occupation of British property would normally have obliged Spain to pay rent, but that in equity it was unnecessary to order payment of rent because the capital value of the property had appreciated as a result of Spain's action in establishing her protectorate in Morocco.23

In Wilhelm v. Bundeskartellamt, the Court of Justice of the Euro- pean Communities found that there was nothing in the relevant EEC regulations which prevented the Commission imposing a fine on an undertaking which had already been fined by national authorities, but held that equity required the Commission to take account of the size of the national fine when calculating the amount of its own fine.24 Such cases, in which equitable exceptions are inferred into written rules of law, are, however, rare. International administrative tribunals have occasionally inferred equitable exceptions into the rules in their Statu'tes limiting their jurisdiction or imposing time limits for the

18 (1956) 12 R.I.A.A. 161, 199. 19 [1970] I.C.J.Rep. 3, 100-103. 20 Ibid. pp. 84-86; see also Judge Jessup, ibid. pp. 191-192. The Court found

Belgium's equitable arguments unconvincing, but said nothing about the applicability of equity in general: ibid. pp. 48-50.

21 (1904) 11 R.I.A.A. 9-10. 22 (1929) Series A, No. 20, p. 39. 23 2 R.I.A.A. 615, 682. 24 [1969] Recueil de la jurisprudence de la C.J.C.E. 16.




institution of proceedings 25; but there are also cases which go the other way, especially in more recent years.26

Application of equity praeter legem Writers disagree as to whether an international tribunal can fill gaps

in the law by recourse to equity in the absence of express authorisation to that effect,2' but there is no shortage of dicta by judges and arbitrators claiming such a power.28 Sometimes, however, the power claimed is rather narrow; thus, one of the arbitral tribunals set up by the Treaty of Versailles held that it must apply the items listed in the first paragraph of article 38 of the Statute of the Permanent Court of International Justice, and then added:

Enfin, a ddfaut de regles du droit des gens applicables aux faits litigieux, les arbitres estiment qu'ils doivent combler la lacune, en statuant suivant les principes d'dquitd, tout en restant dans le sens du droit des gens, appliqud par analogie et en tenant compte de son dvolution.29

Thus, even when applying equity, the tribunal would feel obliged not to diverge much from analogous rules of international law.

The extent to which tribunals have made use of this power is rather limited. Some decisions of international administrative tribunals have claimed a power to fill gaps in the law by recourse to equity, but other decisions deny that such a power exists.30 In some cases arbitral tribunals have derived rules governing the treatment of aliens from equitable considerations; on the other hand, the basic principles

25 Akehurst, op. cit., supra, n. 7, pp. 88-89. 26 Ibid. See also Judgment No. 91 of the ILO Administrative Tribunal, Deschamps

v. ILO (1966): " As regards the arguments based on equity which the complainant puts forward in favour of a review of his grievances, the Tribunal cannot take these arguments into account since the time limit provided for in the Statute of the Tribunal is mandatory; it is binding on the complainant and cannot be extended by the Tribunal." Cf. Judgment No. 197 of the U.N. Administrative Tribunal, Osman (1975), para. XVI: " the Tribunal . . . is bound to apply . . . its Statute. The Tribunal does not have the power to decide a case ex aequo et bono."

27 Degan, L'dquite et le droit international (1970), pp. 29-33. 28 See Judge Ammoun's separate opinions in the North Sea Continental Shelf cases

[1969] I.C.J.Rep. 3, 132 et seq., and in the Barcelona Traction case [1970] ibid. 3, 333; Pinson case (1928) 5 R.I.A.A., 327, 355; Direction gendrale des ports v. Schwartz (cited supra, no. 16); Administrative Decision No. II of the United States- Germany Mixed Claims Commission (1923) 7 R.I.A.A. 26. See also the travaux prdparatoires of the P.C.I.J. Statute, cited by Cheng (1955) 8 Current Legal Problems 185, 210.

29 Sentence arbitrale du 31 juillet 1928 concernant la responsabilit6 de l'Allemagne a raison des dommages causes dans les colonies portugaises, 2 R.I.A.A. 1013, 1016. But the tribunal in the Goldenberg case, which was set up under the same provision of the Treaty of Versailles, held that it should apply the first paragraph of art. 38, without mentioning equity (ibid. pp. 901, 909).

30 Akehurst, op. cit., supra, n. 7, pp. 90-92. See also Guillot v. Commission [1974] E.C.R. 791, 802: " The principles of justice as well as those of good management demand that if serious accusations, reflecting on the professional integrity of an official in carrying out his duties are made by a superior, the Administration should take all necessary steps to establish whether the accusations are justified."




of customary law on the subject were well established before these cases were decided, and it may be that the cases can be interpreted as merely applying those principles, even though the principles are not mentioned by name.31 In the South West Africa case the International Court said:

Throughout this case it has been suggested . . . that humanitarian considerations are sufficient in themselves to generate legal rights and obligations. . . . The Court does not think so. It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form.32

On the other hand, in the Corfu Channel case the Court based its decision partly on humanitarian considerations,33 and individual judges have recognised that equity can be used to fill gaps in the law.34

It is submitted that equity praeter legem has a small role to play today, simply because there are fewer gaps in the law than there used to be. During the past hundred years there has been a huge increase in the number of treaties; modern methods of communication and the creation of international organisations have speeded up the creation of new customary law; the potential contribution of general principles of law is much better understood; and there has been a big increase in the accumulated number of judicial decisions and academic writings.

From a more fundamental point of view it could be argued that the controversy about equity praeter legem has always been unreal and that there never were any gaps in international law. Many writers maintain that law, by definition, contains no gaps. Even from a more

empirical and less controversial point of view, it is always (or nearly always) possible to find some principle of customary law applicable to a case, however broad and vague the principle may be (e.g. the

principle of the presumption in favour of the liberty of State action, enunciated in the Lotus case). Either a tribunal applies such a principle, in which case there is no room for equity, or else it makes an

equitable exception to the principle, which means applying equity infra legem; in neither case does the tribunal need to apply equity praeter legem.

31 Lalanne and Ledour case (1903) 10 R.I.A.A. 17, 18; Tinoco case (1923) 1 R.I.A.A. 371, 394-395.

32 [1966] I.C.J.Rep. 3, 34. In view of the criticism which the Court's judgment aroused, it is worth pointing out that the Court's dictum about humanitarian considerations is not contrary to its advisory opinions on South West Africa, in which it relied, not on abstract moral and humanitarian considerations, but on an interpretation of the mandate and of the League Covenant.

33 [1949] I.C.J.Rep. 4, 22. 34 e.g. Judge Ammoun; see supra, n. 28. Judge Alvarez' " new international law "

was founded partly on considerations of social justice: Degan, L'Vquite et le droit international (1970), pp. 203-206.




Application of equity contra legem Writers 3, and tribunals 36 are unanimous in holding that a tribunal

cannot apply equity contra legem in the absence of an express authorisation to apply equity contra legem such as is found in the second paragraph of article 38 of the International Court's Statute.

Is equity a source of international law? In the Pinson case the umpire said that equity was a subsidiary

source of international law when it was applied to fill gaps in international law.37 The other cases cited above are silent on the question whether equity is a source of international law.38

The fact that tribunals often invoke equity does not necessarily mean that equity is a formal source of law. Counsel and judges in national courts frequently appeal to considerations of equity and justice when the law is uncertain, but this does not lead to equity being regarded as a source of national law. When deciding a doubtful case, a judge may point out that the rule he is laying down is just;

35 Degan, L'equite et le droit international (1970), pp. 27, 33-35, 237. 36 See the individual opinions of Judge Ammoun in the North Sea Continental

Shelf cases [1969] I.C.J.Rep. 3, 138-139, and in the Barcelona Traction case [1970] I.C.J.Rep. 3, 333; Colleanu v. German State (1929) 9 Recueil des decisions des tribunaux arbitraux mixtes 220; United States ex rel. Continental Insurance Co. v. Japan (1960) 29 I.L.R. 431; Rann of Kutch arbitration (1968) 7 International Legal Materials 633, 643; War Profits Tax arbitration (1922) 1 R.I.A.A. 302-305; Ottoman Public Debt arbitration (1925) ibid. 529, 548-549, 550, 592-594, 595, 601.

Most of these cases concern treaties. A conflict between equity and custom is less likely to arise, because the scope of a customary rule is usually less precise than the scope of a treaty provision, so a tribunal can " distinguish " a customary rule more easily that it can " distinguish " a treaty provision; see pp. 803-804, supra.

37 (1928) 5 R.I.A.A. 327, 355. See also Judge Ammoun in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 132.

38 The arbitral award of July 31, 1928 (see above, p. 7, n. 29), might be regarded as an exception, because it lists equity in the same context as the items listed in the first paragraph of art. 38 of the International Court's Statute, which are often regarded as the sources of international law. But art. 38 does not say expressly that they are the sources of international law and some writers argue that art. 38 includes things which are not genuine sources or omits things which are genuine sources. Moreover, the formula employed in the award of July 31, 1928, has the effect of underlining the omission of equity from the first paragraph of art. 38.

Some early arbitral awards said that the whole of international law was " a system of moral equity," based on reason, justice and equity (Moore, International Adjudications (Modern Series), Vol. 4, pp. 238, 245, 284, 421). Such dicta, which are only occasionally found in modern cases (e.g. the Klemp case (1927) 5 R.I.A.A. 579, 583, per the Mexican Commissioner), are concerned with the basis of international law, not with its sources (cf. Briggs, The Law of Nations, 2nd ed. (1952), p. 44). There is no inconsistency in maintaining that international law is based on equity or natural law, but that rules of international law must emerge through a particular formal source (custom, treaties, general principles of law), and that equity or natural law is not such a formal source; this is the position taken, for instance, by Le Fur, Precis de droit international public, 3rd ed. (1937), pp. 200-245 (especially pp. 242-243) and 525-528.

Sylvia Williams ((1975) 5 International Relations, 776) argues that equity has exercised a great influence on space law. But equitable considerations have either been incorporated in the relevant treaties or General Assembly resolutions, or else have remained at the stage of lex ferenda; in neither case are they a formal source of law.




he may also point out that it is a workable rule, which will be easy to apply and will yield predictable results in future cases. In both national and international law, similar appeals are often made to other extra-legal factors-religion, morality, good manners, neighbour- liness, logic, reason, reasonableness, common sense, convenience, and political, economic, sociological, geographical and scientific factors.39 These factors are material sources of law; they are not formal sources. The same may well be true of equity. Thus, in the Rann of Kutch case, the tribunal said:

... it would be inequitable to recognise these inlets as foreign territory. It would be conducive to friction and conflict. The paramount consideration of promoting peace and stability in this region compels the recognition . . that this territory, which is wholly surrounded by Pakistan territory, also be regarded as such.

Equity was here put on the same level as policy considerations, which are clearly not a formal source of law.40

However, it would be unwise to make too much of this argument. The fact that international law is less developed institutionally than municipal law means that the difference between formal sources and material sources is less clear in international law than in munipical law.41 To a large extent the question whether equity is a formal source of international law is a purely verbal question; whichever way the question is answered, it is an undeniable fact that international tribunals often apply equity.

Dangers of applying equity The fact that international tribunals often apply equity does not

necessarily mean that it is desirable that they should apply equity. One of the dangers of applying equity arises from the fact that

equity provides exceptions to general rules. As Charles de Visscher puts it:

La regle de droit est l'expression des rapports sociaux dans ce qu'ils ont de gdndral. C'est, en effet, par l'entremise de sources formelles (traitis, coutumes, principes gdndraux) inddpendantes de considerations d'espece, et, a ce titre, gdneratrices de droit, que la regle accede au niveau de droit positif.

L'dquit apparait dans le plan judiciaire comme une justice individualise. Elle se congoit par rapport a la rbgle dont elle invite a se ddpartir dans la mesure oui l'exige une justice adaptee a l'espece.42

39 e.g. the geographical and economic factors taken into account by the International Court in the Fisheries case [1951] I.C.J.Rep. 116, 133.

40 (1968) 7 International Legal Materials 633, 692. See also the reference to " the principles of justice as well as those of good management " in the Guillot case supra, n. 30.

41 Brownlie, Principles of Public International Law, 2nd ed. (1973), pp. 1-2. 42 Charles de Visscher, De l'dquit6 dans le reglement arbitral ou judiciaire des

litiges de droit international public (1972), p. 3.




Normally States are deterred from breaking international law by fear of creating a precedent which can be used against them in subsequent cases.43 This fear is removed if one can invent an equitable exception to a rule; in such cases a State can continue to pay lip- service to the rule, while disregarding it and hoping that the precedent will not be copied by other States in other contexts. Such a state of affairs might not matter if compulsory judicial settlement existed in international law, but at present judicial settlement is optional and seldom used. In these circumstances there is a great danger that States will invoke equitable considerations as an exception to rules of law whenever obedience to the rules of law would be irksome (for example, the attempts by some States to justify anti-colonialist wars of national liberation as an exception to the general rule prohibiting the use of force in international relations); the concept of equity could be used to give an aura of respectability to such exceptions, even though the States invoking them will probably refuse to allow the validity of the exceptions to be tested by an international tribunal. What makes this process particularly dangerous is that ideas of equity often vary according to the interests and culture of the State concerned.

The result is not only that respect for international law is weakened, but also that the rules of international law themselves become uncertain. Although it is desirable that rules of law should be just, it is perhaps even more desirable that they should be certain, clear and predictable.

The other main danger of applying equity lies in the fact that equity is subjective.44 This was well understood in the early nineteenth century, when an authorisation given to arbitrators to apply equity was often interpreted to mean an authorisation to act as amiables compositeurs, or as government agents empowered to negotiate a compromise without necessarily respecting the law 4"; in other words, there was only a thin distinction between equity and political horse-trading.

Even in a national society, equity can sometimes "vary with the length of the Chancellor's foot." The problem is far more acute in the international society, where political, ethical and cultural values are far more heterogeneous than in a national society; indeed, the international community is probably more heterogenous now than it has been at any time since the re-discovery of international arbitration

43 Akehurst, A Modern Introduction to International Law, 2nd ed. (1971), pp. 18-19.

44 Even supporters of the application of equity admit that it is subjective and that its application is very largely a matter of intuition. See, for instance, Charles de Visscher, op. cit., supra, n. 42, pp. 3-4.

45 Strupp (1939) 33 Recuei des cours 357, 368-391.




in the 1790s. Is it realistic to expect the capital-exporting countries of Western Europe and North America and the capital-importing countries of Asia and Africa to agree on what constitutes equitable treatment of a foreign investor? Can one expect capitalist and communist countries to agree on such issues? 46 One of the problems about equity is that it can often be defined only by reference to a particular ethical

system. Consequently, although references to equity are meaningful in a national society which can be presumed to hold common ethical values, the position is entirely different in the international arena, where the most mutually antagonist philosophies meet in head-on conflict. Moreover, many of the issues which come before international tribunals are so complex and raise such finely-balanced points of conflicting interests that an equitable solution does not exactly leap to the eye, to put it mildly.47

It is sometimes said to be a general principle of law that a judge can apply equity.48 Even if such a general principle exists,49 it cannot be transplanted into international law, because the homogeneity of values, which is the condition precedent for such a principle in municipal law, simply does not exist in international law.50

Some of the decided cases reveal how subjective equity can be. Racial discrimination, which would nowadays be high on most people's lists of inequitable activities,"1 was justified on the basis of

46 It is noticeable that international lawyers from communist countries, who are conscious that their political values are not shared by the majority of the world, are particularly vehement in opposing the application of equity on the grounds that it is subjective. See, for instance, the dissenting opinion of Judge Koretsky in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 165-167.

47 In his dissenting opinion in the Fisheries Jurisdiction case [1974] I.C.J.Rep. 3, 146-147 Judge Gros criticised the Court's invocation of equity. " To hold a balance between the economic survival of a people and the interests of the fishing industry of other States " raised issues which were too complex and explosive to be resolved by the application of equity; striking such a balance was a political and economic task, he said, not a legal one.

48 Jenks, The Prospects of International Adjudication (1964), p. 316; Judge Hudson in the Meuse case (1937) P.C.I.J., Series A/B, No. 70, p. 77; Judge Ammoun in the North Sea Continental Shelf cases [1969] I.C.J.Rep. 3, 139-140, and in the Barcelona Traction case [1970] ibid. 332.

49 Equity has a fairly small role to play in Soviet law (David and Brierley, Major Legal Systems in the World Today (1968), paras. 168 and 197) and in Muslim law (ibid. paras. 430 and 436; Khadduri and Liebesny, Law in the Middle East (1955), Vol. 1, pp. 96 and 101). See, generally, Newman (ed.), Equity in the World's Legal Systems (1973).

50 Not all analogies from municipal law are suitable for borrowing by international law; see infra, p. 816.

It may be that substantive rules of equity are the same in all legal systems on a particular point, but (a) in this case one can apply the rule as a general principle of law, and it is unnecessary to see whether legal systems classify the rule as equitable; (b) such coincidence cannot be assumed-it is inadmissible to say that the concept of equity exists in all legal systems and that an international judge can therefore apply whatever seems equitable to him, without verifying that the world's legal systems recognise the specific equitable rule in question.

51 Cf. Judge Tanaka in the South West Africa cases [1966] I.C.J.Rep. 6, 304 et seq.




equity by an arbitral award in 1895.52 The idea that a State should be made liable for the acts of unsuccessful rebels, which was upheld on the grounds of equity by some arbitrators,53 was rejected as inequitable by others.54 Again, the judgment in the North Sea Con- tinental Shelf cases, which was based on equity incorporated into rules of customary law,55 is in many respects inequitable; it gives a large share of the continental shelf to States with a long coastline and does nothing for States with a short coastline or no coastline, even though they may have a lower standard of living and fewer alternative sources of fuel than States with a long coastline.56

In a legal system where there is no compulsory judicial settlement, the subjectiveness of equity is very dangerous. States will base claims on considerations which seem equitable to them but which do not seem equitable to their opponents; disputes will become not only more frequent, but harder to settle.

It is also dangerous for an international tribunal to base its decisions on equity. A judgment which seems equitable to the winning party may not seem equitable to the losing party, who will be tempted to accuse the tribunal of being biased and acting ultra vires and to refuse to execute the judgment.57 Moreover, if (as the author believes) the unpredictability of judicial decisions is a major reason for the reluctance of States to accept the jurisdiction of international tribunals,58 it is likely that the number of cases submitted to international tribunals will vary in inverse proportion to the reliance on equity by judges and arbitrators.

This may explain why international tribunals often couple references to equity with a simultaneous invocation of general principles of law,59

52 Degan, L'dquitd et le droit international (1970) pp. 110-111; La Fontaine, Pasicrisie internationale (1902) pp. 471-474.

53 Padr6n case (1903) 10 R.I.A.A. 741. 54 Sambiaggio case (1903) 10 R.I.A.A. 499. See also the United States-Mexican

Special Claims Convention 1923, Articles 2, 3 and 6, reproduced 4 R.I.A.A. 779, and the Pinson case (1928) 5 R.I.A.A. 327, 350-351; cf. Sereni, Diritto internazionale (1956) Vol. 1, p. 153, and the Russell case (1931) 4 R.I.A.A. 805, 830. This is precisely the kind of case where European countries and Latin American countries are likely to have divergent ideas about what is equitable. The rule of international law is clear; subject to certain exceptions, a State is not liable for the acts of unsuccessful rebels. The introduction of equity serves only to replace certainty by uncertainty. Indeed, the resulting conflicts between the arbitral awards is itself contrary to the basic equitable principle that like cases should be treated alike; moreover, there is no general appellate system in international law (unlike municipal law) to secure uniformity of judgments.

55 See supra, n. 3. 56 Friedmann (1970) 64 American Journal of International Law 229, 236-240;

Brown (1970) 23 Current Legal Problems 187, 195-199; Lang, Le plateau continental de la Mer du Nord (1970) p. 137.

57 Anand, Studies in International Adjudication (1969) Chap. 8. 58 Akehurst, op. cit. supra, n. 43, pp. 304-306. 59 Akehurst, op. cit. supra, n. 7, pp. 84-85; Russian Indemnity case (1912) 11

R.I.A.A. 431, 442; Yuille, Shortridge case (de La Pradelle and Politis (1957) 2 25 I.C.L.Q.--4




customary law,60 treaties (whether applicable 61 or not 62) or previous arbitral decisions.63

Natural law as the possible basis of an objective equity Is it possible to rid equity of its subjectiveness by finding a more

objective basis for it? Natural law springs to mind as a possible basis, but it is doubtful whether natural law can fulfil this function. Even supporters of natural law theory concede that natural law consists of a very small number of very broad principles,64 which are unlikely to be much help in resolving detailed legal problems. Moreover, the officials and legal advisers of many States, not to mention many international judges,65 do not believe in natural law, and it is likely to be an unprofitable exercise to address arguments based on natural law to such persons.

Above all, views of natural law vary from person to person and from century to century, just as views of equity do; in practice, natural law is as subjective as equity.66 Lutheran ideas of natural law are different from Catholic views.67 Chinese ideas of natural law are not quite the same as Western views.68

That concepts of natural law are relative to the time and place is well illustrated by noting the following views of Vattel:

A Nation cannot maintain its continuous existence except by the procreation of children. A Nation of men is, therefore, justified in pro- curing women, who are absolutely necessary to its preservation; and if its neighbours have more than are needed and refuse to give up any,

Recueil des arbitrages internationaux, 2nd ed., (1957) 108); Meuse case (1937) P.C.I.J., Series A/B, No. 70, p. 50, per Judge Anzilotti; Ruler of Qatar v. International Marine Oil Co. (1953) 20 I.L.R. 534; South West Africa cases [1966] I.C.J.Rep. 3, 304-305, per Judge Tanaka.

60 Royal Holland Line v. United States (1931) (1932) 26 American Journal of International Law 399, 416; Judge Jessup in the Barcelona Traction case [1970] I.C.J.Rep. 3, 191-192.

61 Turkish Government v. Sir W. J. Armstrong Whitworth & Co. Ltd. (1928) 8 Recueil des d6cisions des tribunaux arbitraux mixtes 1001. See also Akehurst, op. cit. supra, n. 7, p. 84.

62 Wilhelm v. Bundeskartellamt ([1969] Recueil de la jurisprudence de la C.J.C.E. 1, 16. The Advocate-General also pointed out (pp. 26-27) that the solution applied by the Court existed in four (and possibly all six) of the six member States). Cf. the Reich case ,1975] 1 C.M.L.R. 396, 405.

63 (1928) 2 R.I.A.A. 1013, 1031; Fatovich case (1954) 22 I.L.R. 409, 412-417; Russian Indemnity case (1912) 11 R.I.A.A. 431, 442-443.

64 Le Fur (1927) 18 Recueil des cours 263, 389. 65 e.g. North American Dredging Co. case (1926) 4 R.I.A.A. 29-30. Of course it is

possible to cite other judgments invoking natural law. But a theory which is accepted by some judges and not by others does not provide a satisfactory criterion for deciding what is equitable and what is not, because a judge who believes in natural law is liable to decide a case differently from a judge who does not.

66 Compare Judge Ammoun's separate opinion in the Barcelona Traction case [1970] I.C.J.Rep. 3, 310 with the dicta in the North American Dredging Co. case (1926) 4 R.I.A.A. 30.

67 Guggenheim (1958) 94 Recueil des cours 5, 47. 68 Needham 2 Science and Civilization in China, Vol. 2 (i956) pp. 518 et seq.




the Nation may use force to obtain them. We have a famous instance of this in the rape of the Sabine women ....

Let us add, however, that if, as many assert, the Romans were in the beginning no more than a band of robbers united under Romulus, they did not form a real Nation, a true State. Neighbouring States were perfectly justified in refusing to give them women, and there was nothing in the natural law, which only approves of civil societies for a just purpose, to require that a society of vagabonds and robbers be given the means of perpetuating itself; and much less did the natural law authorise them to procure those means by force. And in like manner no Nation was obliged to furnish the Amazons with men. That nation of women, if it ever really existed, put itself, by its own fault, in a position where it could not maintain itself without foreign help.69

If Vattel's views seem ludicrous to us, Vitoria's views seem down- right barbaric; he invoked natural law as a justification for executing all non-Christian soldiers who had fought in an unjust war.70 And yet Nussbaum contrasts "Vitoria's warm and humane reasoning" with Suarez's "cold, legalistic manner" and tells us that "Vitoria was Suarez's superior in his deeply humane attitude." 71

Vattel, Vitoria and Suarez were the greatest international lawyers of their respective periods. If men of their stature could be led astray by reliance on natural law, it is unlikely that natural law will provide us with a clear and reliable criterion for determining the content of equity in international law.

General principles of law as the basis of an objective equity It is submitted that the general principles of law recognised by the

laws of civilised nations provide a more reliable criterion for determining the content of equity. As a United States war crimes court said in the List case:

In determining whether . . . a fundamental principle of justice is entitled to be declared a principle of international law, an examination of the municipal laws of States in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified.72

A similar approach has been adopted by other international tribunals; thus in the Orinoco Steamship Company case the tribunal applied

69 The Law of Nations, or the Principles of Natural Law, Carnegie Classics of International Law edition, p. 150.

70 Verzijl, International Law in Historical Perspective (1968), Vol. 1, p. 6. Speaking of natural law, Verzijl said: ". . the most arbitrary and contradictory conclusions were drawn from it in the course of time. Inferred equally from it were human freedom as well as slavery; the susceptibility as well as the insusceptibility of the high seas of appropriation by individual States; personal co-responsibility of the citizens of a vanquished State for the damage caused to the victor, or denial of it; liberty to inflict even the most severe treatment upon, in particular, non- Christian prisoners of war or other enemies, and so on " (ibid.).

71 Nussbaum, A Concise History of the Law of Nations, rev. ed. (1953), pp. 89 and 91. 72 (1948) 15 Annual Digest 632, 633.




" the principles of justice and equity recognised and proclaimed in the codes of almost all civilised nations." 73 As Lauterpacht put it, "rules of equity are identical with legal rules proper and . . these legal rules are in practice co-extensive with rules of private law." 74

If a rule does not exist in the generality of municipal legal systems, there is very good reason to believe that municipal legislators are of the opinion either that the rule is not required by justice and equity, or else that the rule, although desirable from an ideal point of view, would probably prove unworkable in practice-in which case it is not likely to prove workable as a rule of international law.

If a rule does exist in the generality of municipal legal systems, this suggests that municipal legislators regard it as fair and practical. But, strictly speaking, it is unnecessary to prove that municipal legal systems classify the rule as equitable; whether it is equitable or not, it is applicable in international law as a general principle of law.75 The recognition of general principles of law as a source of international law makes equity as a separate concept redundant; equitable principles are simply a sub-set of general principles of law.

General principles of law can be verified by a scientific study of the laws of different States. Consequently, a tribunal which applies general principles of law is less likely to be accused of bias, or of acting subjectively and arbitrarily, than a tribunal which applies equity unsupported by general principles of law; the tribunal runs less risk of jurisdiction being withheld from it in future cases.

Differences of detail between different systems of municipal law do not prevent the application of general principles of law where there is an underlying common principle. One can also say that there is a general principle of law when different systems of municipal law achieve the same result by different means; for instance, the trust is sometimes used in English law to achieve the same result as a stipulation pour autrui in French law. But, although general principles of law

73 9 R.I.A.A. 180, 200. See also the Cayuga Indians case (20 American Journal of International Law, 574, 581, 586, 593 (1926)) and the individual opinions of Judge Hudson in the Meuse case (1937) P.C.I.J., Series A/B, No. 70, p. 77, and of Judge Wellington Koo in the Right of Passage case [1960] I.C.J.Rep. 6, 66-67. And see supra, n. 59.

74 Private Law Sources and Analogies of International Law (1927), p. 286. See also Habicht (1934) 49 Recueil des Cours 281, 349-354.

75 Some supporters of the natural law theory have sought to identify general principles of law with natural law, or to require proof that a general principle of law must be in accordance with natural law before it can be applied by an international tribunal. For criticism of such views, see Basdevant (1936) 58 Recueil des Cours 475, 499; Akehurst, op. cit. supra, n. 43, p. 52. It is true that States often refuse to apply, in an international context, rules which exist in their own municipal laws; but the reason for this is not because such rules differ from natural law (as suggested by Le Fur (1935) 54 Recueil des Cours 207) but because not all analogies from municipal law are appropriate for transplantation into the international environment-see infra, p. 815.




often exist at a very high level of abstraction,76 there is no reason why detailed rules which happen to be common to different systems of municipal law should not be applied as general principles of law; the difference between a principle and a rule is only a difference of degree." In this way general principles of law can be used to provide an answer to technical legal problems, where equitable considerations would be either irrelevant or else so equally balanced on both sides as to provide no real guidance.

But the fact that general principles of law are sometimes technical does not mean that they are rigid and inflexible. On the contrary, they are always capable of undergoing a process of orderly change, as the municipal laws on which they are based are amended. In this way they respond to changing needs without throwing the law into uncertainty. They do not have the immutable character which has sometimes been attributed to natural law.

One possible disadvantage of relying on general principles of law is that they are not recognised as a source of international law by the Soviet Union.78 But this disadvantage should not be exaggerated. They are recognised as a source of international law in other communist countries, such as China,79 Hungaryso and Yugoslavia.8" Admittedly, invoking general principles of law in a dispute with the Soviet Union is likely to be a fruitless move; but one could say the

76 However, if the level of abstraction is too high, the principles become vague and subjective, and therefore useless. See, for example, the criticisms by Judges Tanaka and Sorensen of the principle of distributive justice invoked unsuccessfully by West Germany in the North Sea Continental Shelf cases, [1969] I.C.J.Rep. 3, 21, 194, 255. Similarly, the principle prohibiting unjust enrichment may be common to municipal laws, but those laws do hot agree on the definition of " unjust," especially in expropriation cases; see Schreuer (1974) 22 American Journal of Comparative Law 281, 284 et seq.

77 Mann (1957) 33 British Year Book of International Law 20, 36-38. An international tribunal must consider not only the basic principles common to municipal laws, but also the exceptions to those principles-something which the International Court failed to do in the Barcelona Traction case, according to Judge Fitzmaurice [1970] I.C.J.Rep. 3, 84.

78 Tunkin, Theory of International Law (1974), Chap. 7. See the criticism of Soviet views by Virally in Manual of Public International Law (ed. Sorensen, 1968), p. 174; Akehurst, op. cit. supra, n. 7, pp. 79-80; Akehurst, op. cit. supra, n. 43, p. 52. The addition of the words " whose function is to decide in accordance with international law ..." to the International Court's Statute in 1945, which is interpreted by Tunkin as prohibiting the application of analogies drawn from municipal law, can also be interpreted as " remov[ing] any doubt, if any ever existed, that general principles of law recognised by civilised nations form part of international law ": Cheng, General Principles of Law (1953), p. 2, n. 5.

79 Hsiung, Law and Policy in China's Foreign Relations (1972), pp. 22, 27. so Herczegh, General Principles of Law and the Internatoinal Legal Order (1969),

says that treaties and customary law authorise the application of general principles of law in certain circumstances. See also the other Hungarian writers cited by Herczegh at pp. 21-22.

81 Avramov (1959) 3 Jugoslovenska Revija za Medunarodno Pravo 385; Degan, L')quit6 et le droit international (1970), p. 17; Bartos, in Milanges oflerts a Juraj Andrassy (ed. Ibler, 1968), p. 1.




same of equity or natural law, which are also not recognised as sources of international law by the Soviet Union.

The application of general principles of law usually involves an element of analogy. Claims brought by individuals before national courts after a long delay are usually declared inadmissible; the period of limitation varies from State to State, but the basic principle is the same. This principle is applied by international tribunals to the analogous situation of stale claims brought by States before international tribunals. But there is no reason to believe that a State would be in breach of international law if it had no statute of limitations in its municipal law. The enactment of a rule of municipal law by all the States in the world except one does not compel the remaining State to follow suit.82 Even if all States in the world have a particular rule as part of their municipal laws, each State is normally permitted to remove that rule from its municipal law without breaking international law, even if the other States wish to retain that rule.83

Moreover, analogies drawn from municipal law are not always relevant or appropriate in international law; the environment in which international law operates is very different from the environment in which municipal law operates, and analogies drawn from municipal law are not always suited to the international environment. Thus, in the Dujay case the tribunal held that the principle actio personalis moritur cum persona, which at that time existed in the laws of the United States, could not be invoked to prevent the United States claiming on behalf of the heirs of the dead victim of an international delinquency, because the principle was not suited to the international environment, where claims were vested in the State and not in individuals, and where delays in settling claims were usually much longer

82 South West Africa cases [1966] I.C.J.Rep. 6, 170. 83 Akehurst (1972-73) 46 British Year Book of International Law 145, 212-214,

225-227; Sorensen (1960) 101 Recueil des Cours 1, 31-33; Quadri (1964) 113 ibid. 237, 353-354. There are, however, two exceptions:

(1) There may be a treaty or a rule of customary international law requiring States to have a particular rule in their municipal laws. But customary law exists only if there is opinio juris, and the identity of municipal laws is not enough on its own to permit an inference of opinio juris; see Rousseau, 1 Droit international public, Vol. 1 (1970) pp. 332-333.

(2) The element of analogy is reduced in the case of certain general principles of administrative law concerning the liability of the State. Thus, in the Fabiani case (1896) the tribunal reasoned in effect that the State would have been liable for certain kinds of denial of justice in French, German and Swiss law, therefore Venezuela (the defendant State) was liable for the same kinds of denial of justice in international law (Moore, International Arbitrations, Vol. 5 (1898) pp. 4878. 4895-4896, 4906-4909). Possibly a good deal of the minimum international standard for the treatment of aliens originated in this way before it hardened into customary law, although the minimum international standard is probably less exacting than most national systems of administrative law (cf. Neer's claim (1926) 4 R.I.A.A. 60, 61-62). See also the Aramco arbitration (1958) 27 I.L.R. 117, and the Golder case, European Court of Human Rights, judgment of February 21, 1975, para. 35.




than in municipal law.84 But the impact of this rule should not be exaggerated. Most of the alleged general principles of law which are said to be inappropriate can be excluded from consideration on other grounds-either because they are not general principles of law at all,85 or because they conflict with treaties or customary law (thus the principle of municipal law, that contracts imposed by duress are void, could not until recently be applied to treaties because it conflicted with a rule of customary law that treaties imposed by force were valid).

The fact that general principles of law can usually be applied only by way of analogy, and only in appropriate circumstances, may seem to limit their utility. But this is not really a disadvantage, because general principles of law were never intended to play a dominant role; they are a subsidiary source of international law, overshadowed by treaties and custom. Moreover, it would hardly be desirable if principles derived from municipal law, which were quite unsuited to the international environment, formed part of international law, or if a purely coincidental similarity between different municipal laws meant that States were forbidden to experiment with reforms of their municipal laws in the future.

Another possible disadvantage of applying general principles of law lies in the alleged difficulty of proving general principles of law.

It is sometimes suggested that a general principle of law is something which is inherent in the very nature of law. If this view means that a general principle of law can be established by a priori reasoning, without examining the laws of different States, it must be rejected. There is a serious danger that lawyers will assume that principles which exist in their own municipal law are inherent in the very nature of law, when a study of comparative law might reveal that the principle existed only in one or two systems of municipal law. A principle cannot be said to be inherent in the very nature of law unless it exists in all systems of law.8" Besides, the erroneousness of identifying general principles of law with principles which are inherent in the very nature of law is shown by the fact that tribunals often apply

84 (1929) 4 R.I.A.A. 449. For another example, see the Barcelona Traction case [1970] I.C.J.Rep. 3, 272 et seq., per Judge Gros. And see, generally, Cheng, General Principles of Law (1953), pp. 265-266, 391, 393.

85 Thus, the principle actio personalis moritur cum persona, invoked in the Dujay case, did not exist in many civil law countries. Similiarly, municipal rules restricting the admissibility of evidence have sometimes been rejected as inappropriate to international litigation (4 R.I.A.A. 39 and 182); but most of these rules are peculiar to common law countries, and are, therefore, not general principles of law in any case.

86 Or at least in all systems where the same need arises; differences between the principles existing in different legal systems can often be explained by the dis- similarities of practical needs within those systems. For instance, one would not expect to find mining legislation in a country which has no mines. See Cheng, General Principles of Law (1953), pp. 265-266, 391, 393.




general principles of law which are common to a group of States but which do not exist in many States outside that group; for instance, the Court of Justice of the European Communities applies principles which are common to the laws of the member States.87

General principles of law are derived from the laws of States. It may be possible to find indirect evidence of a general principle of law in books on comparative law, in decisions of international tribunals or even in General Assembly resolutions. But a decision of an international tribunal applying a general principle of law is not always reliable evidence of a general principle of law, because the tribunal

may have misinterpreted the municipal laws from which the principle was derived, or because those laws may have changed since the date of the decision. Despite the views advanced by some authorities,ss General Assembly resolutions proclaiming the existence of a general principle of law are even less reliable as evidence of the existence of a general principle of law, because there is no guarantee that the laws of the States voting for such a resolution are in conformity with the resolution; thus in the South West Africa cases the General Assembly resolutions condemning apartheid were supported by many States whose own laws were full of discriminatory provisions.

In short, there is only one reliable way in which a general principle of law can be proved, and that is by examining the laws of different States. Such an examination may reveal that a general principle of law exists; in other cases, however, it may reveal such a divergence that no general principle of law can be said to exist. The existence of a general principle of law cannot be assumed; it must be proved.89

Obviously, it would be impossible for a tribunal to examine the laws of all the countries in the world, but often that is unnecessary. Legal systems are grouped in families; the law in most English- speaking countries is very similar, just as the law in most Latin American countries is very similar. Once one has proved that a principle exists in English law, there is a high probability that it will be found to exist also in New Zealand and Australia. However, it is not permissible to give a preference to one group of legal systems

87 And see infra, p. 821 and n. 106. 88 Bleicher, 63 American Journal of International Law 444, 452 (1969); Judge

Tanaka in the South West Africa cases [1966] I.C.J.Rep. 6, 300. And see the speech by Ernest Gross for the applicants in the same cases (reprinted in Falk, The Strategy of World Order (1966) Vol. 3, pp. 87-89).

89 Cf. Jennings (1958) 34 British Year Book of International Law 334, 354, n. 2: " It is true that the learning and ingenuity of comparative lawyers can discover striking similarities in the 'general principles' of widely differing systems . But it is probably also true that similar activity in the reverse direction would discover equally relevant divergences." The conflict of laws is one area where it is difficult to find general principles of law: Lipstein (1941) 27 Transactions of the Grotius Society 142, and (1943) 29 ibid. 51.




over another group, e.g. to allow principles derived from civil law countries to override principles derived from common law countries,90 or to allow principles derived from Western systems of law to override principles derived from non-western systems of law.91 A principle which is accepted in only a minority of States of the world cannot be said to be a general principle of law.

Ideally a tribunal should make a thorough survey of comparative law, making use of all the scholarly research which has been done on the subject. But this rarely happens in practice. Usually only the laws of a small number of countries, or of none, are cited.92 The result can sometimes be the application of principles which do not exist in other countries.93 But such cases are not necessarily productive of injustice. The parties are given an opportunity to cite authority: if the plaintiff cites rules in some legal systems which support his case and if the defendant neglects to cite rules from other legal systems which go the other way, the defendant has only himself to blame if the tribunal concludes that the rules cited by the plaintiff represent a general principle of law. It is only when 'the tribunal applies general principles of law proprio motu, without inviting argument on the point from the parties, that injustice can occur; and even this danger can be guarded against by bringing a case before a tribunal consisting of judges from a wide variety of legal systems, like the International Court of Justice.

90 Judge Ammoun, dissenting in the case concerning the Application for Review of Judgment No. 158 of the U.N. Administrative Tribunal [1973] I.C.J.Rep. 166, 249, said that Roman law influences predominate in international law and that it is, therefore, permissible to apply a principle which does not exist in the common law. Roman law influences may have predominated in the past, but that is no justification for distorting general principles of law by allowing Roman law influences to predominate now. Reliance on Roman law, as happened in some nineteenth century cases, is particularly objectionable when it leads to the application of a principle which is accepted neither in the common law nor in modern systems derived from Roman law: Mann (1957) 33 British Year Book of International Law 20, 37.

91 Cf. Tunkin's warning against " the desire to use 'general principles of law' in order to proclaim principles of the bourgeois legal system to be binding upon all ": Theory of International Law (1974), p. 190.

92 Citations are sometimes limited to those countries where a principle is most clearly developed, e.g. England in the case of estoppel, or France in the case of administrative law (Marek, Repertoire des decisions et des documents . . . de la C.P.J.I. et de la C.I.J., first series, Vol. 2 (1967) pp. 1064-1066, 1068-1072).

93 There are a number of cases applying general principles of law which do not exist in English law, e.g. the Russian Indemnity case (1912), discussed by Lauterpacht, Private Law Sources and Analogies of International Law (1927), pp. 258 and 261, n. 1; the Lhoest case (1932), cited in Akehurst, op. cit. supra, n. 7, p. 74; and the Fabiani case (1896), Moore, International Arbitrations, Vol. 5 (1898) pp. 4878, 4895-4896 and 4906-4909. The disregard of English law was probably inadvertent; indeed, in the first two cases the tribunals actually said that the principle existed in all systems of law.

English-speaking members of international tribunals have also sometimes been guilty of citing principles of English or American law without ascertaining whether the principles existed in other countries: Petroleum Development Co. v. Sheikh of Abu Dhabi (1951) 18 I.L.R. 144, 149-150; Howrani case (1951), cited in Akehurst op. cit. supra, n. 7, p. 78.




It is uncertain whether a general principle of law must be common to all countries, or merely common to most.94 A survey 95 of the judgments and pleadings before the Permanent Court of International Justice 9 shows that in most cases the alleged general principle of law was claimed 97 to exist in all countries,98 although sometimes the claim was made that it existed in most 99 or almost all countries 100; in some cases the laws of a few countries were cited by way of example but no express claim was made about the number of other countries in which the same principle was alleged to exist.1'0

Such statements are inconclusive because in very few of these cases was it argued that the principle in question could not be regarded as a general principle of law because it was rejected by a minority of States.'02 There are, however, a very few statements that a principle which is not universally accepted cannot be regarded as a general principle of law.'0s

A related problem is whether a State can be bound by a general principle of law which is rejected by its own legal system-a question

94 Art. 38 (1) (c) of the International Court's Statute speaks of " civilised nations," but this was probably not intended to be as restrictive (or as discriminatory) as is sometimes alleged: Cheng, General Principles of Law (1953), pp. 9-10, and cf. Westlake, Collected Papers (1914), p. 143.

Where an institution exists in international law by virtue of a treaty or custom, it is permissible to interpret that institution by comparison with legal systems where such an institution exists, and with those systems only. For instance, in Assider v. High Authority (1955) 1 Recueil 263, 288 the E.C.S.C. Court of Justice was confronted with a provision enabling it to interpret its previous judgments, and it held that the provision must be construed by comparison with the laws of those member States where the same institution existed-which meant French and Belgian law, as the institution did not exist in other member States.

95 It would be extremely tedious to make a similar survey of all cases which have come before all international tribunals; after reading many of the cases, the author has the impression that the division of authority in the case-law and pleadings of the Permanent Court is matched by a similar division in the case law of other international tribunals.

96 The Permanent Court, like the International Court of Justice, has rarely applied general principles of law, but they have often been cited in the pleadings and may have influenced some of those decisions by the Court which do not mention them by name. Cf. the Court of Justice of the European Communities, where the Court's previous judgments are cited by the litigants and the Advocates-General and are usually followed by the Court, although the Court seldom cites them expressly.

97 But not proved. Specific references were never made to the laws of more than a small number of countries.

98s Marek, op. cit. supra, n. 92, pp. 956, 959, 960, 962, 994, 1003, 1019, 1020, 1038, 1057, 1060-1062, 1095, 1103, 1116, 1118, 1128, 1131, 1133, 1140, 1142, 1146, 1152-1153, 1162-1163, 1169, 1172, 1182, 1195, 1199.

99 Ibid. pp. 965, 1022-1023, 1027, 1030, 1073, 1115, 1185. 100 Ibid. p. 981. lo Ibid. pp. 1056, 1064-1066, 1068-1072, 1077-1078, 1093, 1109-1110, 1201;

Jenks, The Prospects of International Adjudication (1964), pp. 303-304. 102 Clearly a principle which exists in many States but is rejected in many others

cannot be a general principle of law (Mexico City Bombardment claims (1930) 5 R.I.A.A. 76, 83); but what about a principle which exists in many States, but is rejected in a few others?

103 Marek, op. cit. supra, n. 92, pp. 949, 952 and possibly 1160. Judge Chagla's dissenting opinion in the Right of Passage case [1957] I.C.J.Rep. 125, 177 tends in the same direction. Contra, Judge Tanaka's dissenting opinion in the South West Africa cases [1966] I.C.J.Rep. 6, 299.




which produced a predictable difference of opinion between Judges van Wyk and Tanaka in the South West Africa cases.'04 Certainly, if a State is not bound by a rule of customary law which it has con- sistently and constantly opposed ab initio,'05 it would be illogical to regard a State as bound by a general principle of law which has always been rejected by its own law.

One might imagine that the case law of the Court of Justice of the European Communities would throw some light on the question whether a general principle of law needs to be accepted by all States or only by some, because the Court usually confines itself to examining the laws of the member States,o06 which enables the Court to make detailed surveys of comparative law in a manner which other international tribunals, claiming to apply world-wide principles, cannot hope to imitate. If such a survey reveals an unbridgeable difference between the laws of one or two member States and the laws of the majority, is the Court at liberty to apply the majority solution?

Some commentators have answered this question in the affirma- tive.107 The Advocates-General have sometimes suggested that the Court is free to select the principle of municipal law which it regards as most progressive o10 or most carefully considered.'19 Such approaches are dangerous. The Court of Justice of the European Communities has compulsory jurisdiction over the member States, so it does not need to be as cautious as other international tribunals, which must always reckon with the possibility that unpopular judgments will provoke States not to accept the tribunal's jurisdiction in future cases. Even so, it would be unwise for the Court to apply a general principle

104 f1966] I.C.J.Rep. 6, 170, 298. 10o Fisheries case [1951] I.C.J.Rep. 116, 131. States are bound by a rule of

customary law if they have not participated in any practice supporting or rejecting that rule; by analogy, therefore, a State should be bound by a general principle of law if its own law is silent on the issue in question.

106 Occasionally the Court speaks of general principles of law without expressly limiting them to the laws of member States, but in such cases it has not cited the law of any particular non-member State by name (Recueil, Vol. 2, p. 305; Vol. 3, p. 123; Vol. 4, p. 111; Vol. 6, pp. 958 and 976; Vol. 7, p. 386; Vol. 10, pp. 108, 698, 765, 796-797; Vol. 14, pp. 474, 501). In X v. Council (1972) 18 Recueil 1205, 1216 Advocate-General Roemer cited Swiss law, as well as the laws of the member States, as proof of a general principle of insurance law; but at least one of the insurance companies involved in the case was Swiss. In I.C.I. v. Commission (ibid. pp. 619, 695-697) Advocate-General Mayras cited American, British and Swiss law as evidence of customary international law. He also cited American anti-trust law (ibid. pp. 619, 673-674) and American cases holding that a conviction in a state court does not bar subsequent prosecution in a federal court (Boehringer v. Commission, ibid. pp. 1301-1302), not as evidence of general principles of law (few countries have a system of anti-trust law as strict as the American system, or a judicial system divided into state and federal courts on the American pattern), but because Community law faced similar problems in these areas and might be able to learn from the American experience.

107 Lorenz (1964) 13 American Journal of Comparative Law 1, 7-12. See also (1971) 17 Recueil 975, 990-991.

10s 8 Recueil 485, 539; ibid. Vol. 15, pp. 1, 27; ibid. Vol. 17, pp. 515, 533; [1973] E.C.R. 1229, 1260. 109 Werhahn v. Council [1973] E.C.R. 1229, 1260.




of law which was rejected by the law of a member State; and it would be adding insult to injury for the Court to tell the member State that its law was not progressive or not carefully considered. Moreover, 6 progressive " is a subjective term 110; what is progressive and what is retrogressive depend on the direction in which one wants to move, and there is often no agreement about this. If a principle is truly progressive, why is it not accepted everywhere? The fact that it is not accepted everywhere shows that one's definition of " progressive" is subjective and not shared by everyone.'11

At all events, the Court has adopted a more cautious approach. It has never held that principles which exist in the majority of member States, or which are progressive or carefully considered, should prevail over the principles existing in other member States."2 The Court tries to find a principle which is common to all the member States,'13 even if this means applying a very broad principle which is common to all the member States and which transcends differences of detail between their laws."4

It is only in the "human rights " cases that the Court has adopted a bolder attitude. In Comptoir National Technique Agricole v.

110 " Carefully considered " is less subjective, but there is a danger that one will regard principles with which one agrees as more carefully considered than others.

111 Sometimes the Advocates-General have tried to meet this objection by arguing that the law in some States is beginning to move towards the solution adopted in other countries, and that the Court should therefore follow the latter solution (e.g. Werhahn v. Council [1973] E.C.R. 1229, 1260). But who can tell whether the law in the first group of countries will continue to evolve in this direction, or whether the trend will be reversed? It is no part of a court's function to anticipate develop- ments which may never be completed (cf. the International Court's refusal to anticipate the outcome of the UN Conference on the Law of the Sea in the Fisheries Jurisdiction case [1974] I.C.J.Rep. 3, 23-24).

Less objectionable is the view sometimes expressed by the Advocates-General that a rule existing in a minority of member States should not be followed by the Court because it is inappropriate to the Community setting; 17 Recueil 975, 990-991 (and possibly also Vol. 8, pp. 485, 539); [1973] E.C.R. 1229, 1260. Cf. supra, p. 815.

The cases in which the Advocates-General have argued that the laws of some member States should be followed in preference to the laws of others are very few. More often the Advocates-General examine the laws of only some of the member States, but without suggesting that the laws of the others are different or should be disregarded. See Recueil, Vol. 4, pp. 346-348; Vol. 5, p. 365; Vol. 6, pp. 330-332, 541-542, 838; Vol. 7, pp. 351-352, 612-613; Vol. 9, pp. 243-244, 249, 524, 652; Vol. 10, pp. 109-110, 463, 547-548, 856, 1339-1340; Vol. 11, pp. 122, 166, 645-646, 880, 1027-1028, 1054, 1174, 1188; Vol. 12, pp. 186-187, 530, 533, 608, 723-724, 726, 804; Vol. 13, pp. 133-134, 353, 545-546; Vol. 14, pp. 452, 454-456, 511; Vol. 15, pp. 38, 40, 457, 489, 491, 501, 515-516; Vol. 16, pp. 18-19, 265; Vol. 17, pp. 529-530; [19731 E.C.R. 717-719, 737, 739, 741.

112 In the Algera case (1957) 3 Recueil 123 the Court spoke of la plupart des ldgislations modernes; but this formula was not limited to the laws of the member States, and the Court did not mention any of the member States by name, so it is possible that the Court thought that the laws of all six member States should be counted among la plupart des lIgislations modernes.

113 Recueil, Vol. 3, p. 115; Vol. 8, pp. 651, 709. See also the submissions of the Advocates-General, ibid. Vol. 6, pp. 235, 910; Vol. 7, p. 386; Vol. 9, p. 82; Vol. 11, pp. 889-891; Vol. 14, p. 76; Vol. 17, p. 531; Vol. 18, p. 1296.

114 RecueiI, Vol. 3, pp. 115-116. See also the submissions of the Advocates-General, ibid. Vol. 6, p. 332; Vol. 13, p. 352; Vol. 17, pp. 532-533.




Commission,115 the Court, following dicta in earlier cases,116 held that the plaintiff was entitled to damages for the loss caused him by an EEC regulation which flagrantly violated "a superior rule of law for the protection of the individual." According to article 215 of the EEC Treaty, the Court's judgment should have been based on the general principles of law common to the member States, but the Court made no attempt to show that the rule which the regulation had violated existed in the laws of any of the member States. (The dicta in the earlier cases tend to be equally evasive). A study of comparative law would probably have shown that the rule in question did not exist in the laws of most of the member States. Such cases are examples of judicial law-making rather than of the normal application of general principles of law.

Apart from the "human rights" cases, the Court's approach has been cautious. It remains to be seen how long that caution will be able to survive the entry of new member States whose laws differ consider- ably from those of the original six members. Most of the cases which have come before the Court since the enlargement of the Communities arose out of facts which had occurred previously, and it " may be that the laws of the new member States cannot be relevant to the solution of a dispute that arose before their accession." '117 One tendency in the future may be to rely less on general principles of law and more on some other basis of decision. One sign of this tendency can already be seen in Nold v. Commission. Dicta in previous cases had stated that Community acts would be invalid if they conflicted with general principles of constitutional law, common to the laws of the member States and designed to protect human rights."18 It was possibly in response to the difficulty caused by the fact that the United Kingdom had no written constitution and therefore no entrenched human rights, that the Court said in the Nold case:

As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot

115 [1975] E.C.R. 533. 116 (1971) 17 Recueil 985; (1972) 18 ibid. 405; f1973] E.C.R. 803, 1070, 1248;

[1974] E.C.R. 675. See also the cases noted infra, nn. 118 and 119. 117 Per Advocate-General Warner in Commission v. Council [1973] E.C.R. 575,

593; but he examined the laws of the new member States none the less. The usual tendency of the Advocates-General has been to try to show that a principle is common to the laws of all member States, new and old (see, for instance, Werhahn v. Council [1973] E.C.R. 1229, 1259-1260). They have never suggested that the principles common to the laws of the six original members are part of the acquis communautaire which must be accepted by the new members without alteration, or that the laws of the new member States are less important than the laws of the old.

118 Stauder v. Ulm [1969] Recueil 419, 425; Internationale Handelsgesellschaft [1970] Recueil 1125, 1135 (and see also p. 1176). See also Moulijn v. Commission [1974] E.C.R. 1287, 1294.




therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States. Similarly, international treaties for the protection of human rights on which the member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.

The Court here seems to be moving away from an exclusive reliance on general principles of law, and to be relying also in part on treaties for the protection of human rights.119

General principles of law common to the parties Much of the difficulty of proving general principles of law could be

avoided if international tribunals confined themselves to applying general principles of law which were common to the disputing parties, without inquiring whether those principles existed in the laws of other States. Research into two systems of law is easier than research into many. The chances of finding principles (and, above all, detailed rules) which are common to two systems are higher than the chances of finding principles and rules which are common to many; this is particularly true when the principle or rule reflects an ideology or moral values which are shared by the parties but not by all States.

This procedure has not often been followed. In arbitrations between the United States and the United Kingdom the parties and the arbitrators have cited civil law as well as common law.'20 In arbitrations between Latin American countries, citations have not been confined to the laws of Latin American countries.12' Some authorities even say that a tribunal is not allowed to confine its examination to the laws of the disputing parties.'22 But other authorities say the opposite,23S and this procedure has sometimes been followed when a tribunal has

119 [1974] E.C.R. 491, 507 (the Court did not expressly mention the problem of the new member States in this context, but it may have taken it into account none the less). There is no reason why the two approaches should not be applied cumulatively; for some member States the obligation not to violate a particular human right may derive from their constitutions, for others it may derive from a treaty. Or, to put the point in a slightly different way, legislation of a State which conflicts with its international obligations should be disregarded in determining whether a rule forms part of the laws of all member States (cf. (1972-73) 46 British Year Book of International Law 447, 448).

The problem caused by the fact that only some of the member States of the Communities are parties to certain treaties on human rights could be avoided if the Court were prepared to recognise and apply rules of customary international law on human rights. Note also that the Court seems to have considered it sufficient that member States had " collaborated " in the drafting of treaties on human rights, without necessarily being parties to them.

120 Lauterpacht, Private Law Sources and Analogies of International Law (1927), Chap. 6 and p. 286.

121 Ibid. pp. 290 et seq. 122 Bengtson v. Federal Republic of Germany (1959) 28 I.L.R. 549, 555; Dujay

case (1929) 4 R.I.A.A. 449, 455-456; Lauterpacht, op. cit. supra, n. 120, pp. 236-237. 123 Marek, op. cit. supra, n. 92, p. 1022; P.C.I.J., Comit6 consultatif des juristes,

Proces-verbaux 346; Administrative Decision No. II of the German-American Mixed




had to deal with technical questions, where it might be difficult to find general principles of law which were widely accepted-e.g. in

questions of the conflict of laws,124 or commercial law.125

There is, of course, a danger that widespread use of this procedure would tend to convert international law from a single system into a number of unrelated bilateral systems.126 It is, therefore, probably desirable that a tribunal should start by trying to find a general principle of law which is universally accepted 127; but, if it cannot find such a principle, it should instead apply a principle which is common to the parties. There is nothing in the Statute of the Inter- national Court of Justice to prohibit this approach; the reference to

"general practice" in article 38 (1) (b) has not prevented the Court applying a bilateral custom,128 so there is no reason for regarding the reference to " general principles " in article 38 (1) (c) as prohibiting application of bilateral principles. For years the Court of Justice of the European Communities applied principles common to six States, and there is only a difference of degree between principles common to six States and principles common to two.

In any case, there is nothing to prevent the parties agreeing in a contract 129 or a compromis d'arbitrage that disputes shall be settled by applying the principles common to the laws of the parties.

Claims Commission (1923) 7 R.I.A.A. 26; [1932] Annuaire de l'Institut de droit international 305, 320, 324, 328.

Something similar can happen in practice when the laws of a few States are cited as evidence of a principle accepted by all or most States (cf. supra, p. 819). But in such cases the laws of other States are assumed to be the same, which is rather different from deliberately ignoring possible differences in the laws of other States. Besides, the tribunal normally regards itself free (but not obliged) to consider Systems of law other than those cited by the parties.

124 Brignone case (1903) 10 R.I.A.A. 542, 550; Swiss Confederation v. German Federal Republic (No. 1) (1958) 25 I.L.R. 33, 79; 5 Recueil des decisions des tribunaux arbitraux mixtes 670, 672; 3 ibid. p. 1024.

125 Radio Corporation of America case (1935) 3 R.I.A.A. 1621, 1630; Langen, Transnational Commercial Law (1973); Lipstein (1941) 27 Transactions of the Grotius Society, pp. 142, 151-152.

126 Cf. Dujay case (1929) 4 R.I.A.A. 449, 455-456. 127 Except when general principles of law are applied to fill gaps in a treaty

establishing a sub-system within the main international legal system, such as the European Communities. In such cases it is reasonable to infer that the parties intended that principles common to their legal systems should be applied, especially if the treaty contains (as the EEC Treaty does) many legal terms derived from their legal systems. 128 Right of Passage case [1960] I.C.J.Rep. 6.

129 See the oil concessions cited by Delaume, Transnational Contracts (1975) ?? 1.12 and 1.13, and by Lalive, (1964) 13 I.C.L.Q. 987, 1001-1002. Some of these concessions provide that, in the absence of principles common to the laws of the parties, general principles of law recognised by civilised nations in general are to be applied. Presumably this clause is intended to cover the case where the law of one of the parties is silent on a particular point (cf. supra, n. 105); if the law of one of the parties contains a rule contrary to the alleged principle, that principle can hardly be said to be accepted by civilised nations in general, especially since it is likely that the negative attitude adopted by the law of the party concerned will probably be matched by the laws of States with similar legal systems (cf. supra, p. 820).



equity and general principles of law#akehurstsource

Documents