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sense of the provision invoked;-d should moreover have occurred in General principles of law have performed a very necessary
such a way as to show a general recognition that a rule or legal obligation function by giving norms to international law which have
is involved.
matured in a more organized local society and which may
75. The Court must now consider whether State practice in the mat- furnish the means to resolve disputes submitted to inter-
ter of continental shelf delimitation has, subsequent to the Geneva national arbitration or adjudication. If there is no treaty or
Convention, been of such a kind as to satisfy this requirement. . ..
[Slome ffteen cases have been cited in the course of the present sWc custom in point, a solution can be reached by the
proceedings, occurring mostly since the signature of the 1958 Geneva use of general principles. A court or commission cannot
Convention, in which continental shelf boundaries have been delimited say "non liquet." 43
according to the equidistance principlein the majority of the cases by (1) What are these "general principles of law"?
agreement, in a few others unilaterally--or else the delimitation was Conceivably, they may be general principles of private
foreshadowed but has not yet been canied out. But even if these various
cases constituted more than a very small proportion of those potentially law 44 or concepts derived from natural law. 45 A listing of
calling for delimitation in the world as a whole, the Court would not some of these observations applied by international courts
think it necessary to enumerate or evaluate them separately, since there and tribunals substantiates these observations. Such prin-
are, a priori, several grounds, which deprive them of weight as prece- ciples would include self-preservation, good faith, concept
dents in the present context. . . .
of responsibility, and those general principles of law that
76. The essential point in this connection-d it seems necessary govern judicial proceedings, such as res judicata, burden
to stress itis that even if these instances of action by nonparties to the
of proof, and jurisdiction. 46
Convention were much more numerous than they in fact are, they
would not, even in the aggregate, suffice in themselves to constitute the (2) International arbitral tribunals have frequently
opinio juris--for, in order to achieve this result, two conditions must be employed general principles of law in deciding disputes be-
fulfiffled. Not only must the acts concerned amount to a settled practice, tween states. In a number of cases, for example, arbitra-
but they must also be such, or be canied out in such a way, as to be evi- tors found support in the municipal law principles of ex-
dence of a belief that this practice is rendered obligatory by the existence tinctive prescription, laches, and statutes of limitation for
of a rule of law requiring it. The need for such a belief, i.e., the existence their rejection of claims on the basis that they had not
of a subjective element, is implicit in the very notion of the opinio juris
sine necessitatis. The states concerned must therefore feel that they are been presented or pressed for an extended period of
conforming to what amounts to a legal obligation. The frequency, or time. 47 In the Russian Indemnity Case, decided by a tri-
even habitual character of the acts is not in itself enough. bunal of the Permanent Court of Arbitration in 1912,
There are many international acts, e.g., in the field of ceremonial and Russia claimed interest on amounts due under a treaty of
protocol, which are performed almost invariably, but which are moti- 1879 with the Ottoman Empire, which the latter had paid
vated only by considerations of courtesy convenience or tradition, and
not by any sense of legal duty. with considerable delay. The tribunal, invoking principles
concerning the payment of interest on overdue debts
77. In this respect the Court follows the view adopted by the Perma-
nent Court of International Justice in the Loms case. . . . mhe position which it found in the private law of European states, was
is simply that in certain cases-not a great number-the States con- of the opinion that the Ottoman Empire was under a duty
cerned agreed to draw or did draw the boundaries concerned according to pay interest but held, also on the basis of analogies from
to the principle of equidistance. There is no evidence that they so acted private law, that Russia, by its previous failure to demand
because they felt legally compelled to draw them in this way by reason of
a rule of customary law obliging them to do so-especially considering interest while pressing the Ottoman government for, and
receiving payments of, the principal amount, had re-
that they might have been motivated by other obvious factors. 42
*
nounced its rights to claim interest. 48
(7) These three cases serve to demonstrate the role (3) Several post World War II war crimes trials, such
customary international law may play in international ad- as In re List and Others, indicate that a search of national
judication and several of the ways in which courts have laws will provide guidance in determining general princi-
relied upon this source of jurisprudence as a basis for their ples of law. In the List case, the ten accused were high
ran@ officers in the German armed forces. They were
decisions. Its current importance and value must not be
charged with, inter alia, the responsibility for the execu-
dismissed.
d. General principles of law. Where neither treaty, nor tion and ill treatment without trial of a large number of
hostages and prisoners in Greece, Yugoslavia, and
customary norms furnish a satisfactory rule of law, the ap-
Albania in reprisal for attacks by unknown persons against
plicable legal concepts must be deduced from the general
principles of law recognized by "civilized" states. These 43. Schwarzenberger, Foreword to B. Cheng, General Principles of
general principles of law refer to the use of national law Zn&ernatiomI Law us Applied by Znter~tioml Courts and Tribunals
principles, common to all nations, in deciding questions of (1953).
44. H. Lauterpacht, Priwte Law Sources and Analogies of Interna-
international law. This is comparable in scope to the use of
tional Law 71 (1927).
the "law of peoples" by Roman authorities or the subse- 45. "They [general principles] opened a new channel through
quent use of municipal Roman Law by medieval writers in which concepts of natural law could be received into international law.''
developing the basic principles of international law. The Schwanenberger, supra note 43.
principles of Roman law, even today, furnish the founda- 46. B. Cheng, supra note 43,at 44.
tion for the national laws of most major world powers. 47. The Gentini Case (Italy v. Venezuela), Mixed Claims Commis-
sion of 1903, 10 U.N.R.I.A.A. 551.
42. North Sea Continental Shelf Cases, [I9691I.C.J. 27. 48. Russian Indemnity Case, 11 U.N.R.I.A.A.421.