Page 18 - Law of Peace, Volume ,

Pam 27-161-1

German troops and installations. The tribunal said: "good faith" and "abuse of rights," 54 as it is also of the
11235)The tendency has been to apply the term "customs and prac- Court's frequent reliance on the principle of "estoppel"
tices accepted by civilized nations generally," as it is used in Interna- (preclusion)which played a particularly prominent part in
tional Law, to the laws of war only. But the principle has no such the cases of the Arbitral Award of the King of Spain 55 and
restricted meaning. It applies as well to fundamental principles of Justice the Temple of Preah Vihear. 56 In the latter case the
which have been accepted and adopted by civilized nations generally. In
determining whether such a fundamental rule ofjustice is entitled to be Court invoked still another general principle of liability,
declared a principle of International Law, an examination of the munici- stating that ". .. it is an established rule of law that a plea
pal laws of states in the family of nations wiU reveal the answer. If it is of error cannot be allowed as an element vitiating consent
found to have been accepted generally as a fundamental rule of justice if the party advancing it contributed by its own conduct to
by most nations in their municipal law, its declaration as a rule of Inter- the error." 57
national Law would seem to be fully justified. There is convincing evi-
dence that this not only is but has been the rule. ...If the rights of na- g. As to the administration ofjustice, there are a num-
tions and the rights of individuals who become involved in international ber of references to "general principles of law" in connec-
relations are to be respected and preserved, fundamental rules of [I2361 tion with questions of jurisdiction, procedure, evidence or
justice and rights which have become commonly accepted by nations other aspects of the judicial process. Thus,.speakhg in the
must be applied. But the yardstick to be used must in all cases be a fmd- Corfu Channel Case 58 of circumstantial evidence, the In-
ing that the principle involved is a fundamental rule of justice which has
been adopted or accepted by nations generally as such. . . .49 ternational Court stated ". . . this indirect evidence is ad-
mitted in all systems of law, and its use is recognized by
e. The addition of a third source of law to article 38 was international decisions. . . ." The principle known as res
deliberate. Moreover, the debate in the course of drafting judicata, which was actually mentioned by the authors of
clearly indicates that the purpose of the third source of law
Article 38 of the Statute as an illustration of what they
was to give the Court a certain degree of flexibility in
meant by a "general principle of law recognized by
deciding disputes and to allow it to avoid, so far as possi-
civilized nations," has more than once been referred to by
ble, the problems of non liquet. The scope of the Court's the Court. A recent occasion was in the United Nations
authorization to apply "general principles" is still,
Administrative Tribunal Case 59 where the Court, in hold-
however, the object of debate. 50 The rejection of ing the U.N. General Assembly to be bound by the deci-
"general principles of law" as a source of international sions of the Tribunal said "[AJccording to a well-estab-
jurisprudence by Soviet jurists has resulted in one of the lished and generally recognized principle of law, a judg-
most basic conflicts in the contemporary interpretation of
ment rendered by a judicial body is res judicata and has
international law. 51 biding force between the parties to the dispute." Again
$ A study of the decisions rendered by the two World , in the I.L.0.Administrative Tribunal Case, 60 the Court
Courts indicates that the use by these tribunals of referred to the principle of the equality of the parties as a
"general principles of law" has been limited. The main "generally accepted practice" and as a principle which
sphere in which these principles have been held to apply "follows from the requirements of good administration of
has been either the general principles of legal liability and
justice."
of reparation for breaches of kternational obligations or h. Other than in the two spheres of the law mentioned
the admimistration of international justice. For example, above, the Court has shown little interest in attempting to
in the Chonow Factory case, 52 the Permanent Court de- delineate and apply "general principles of law" to ques-
scribed the principle that a party cannot take advantage of tions of international adjudication. Thus, this source of
its own wrong, as one ". . . generally accepted in the
jurisprudence of international arbitration, as well as by jurisprudence is generally looked to only as a last resort.
1-7. Evidences of International Law. a. Article
municipal courts. . . ." Moreover, at a later stage in this 38(l)(d) of the Statute of the International Court of
same case, 53 the Court said that ". . . it is a general con- Justice states that the Court shall apply ". . .subject to the
ception of law that every violation of an engagement in- provisions of Article 59, 61 judicial decisions and the
volves an obligation to make reparation . . .," and it went teachings of the most highly qualified publicists of the
on to speak in terms of restitution and damages. These various nations, as subsidiary means for the determina-
pronouncements concern general principles of legal tion of rules of law. .. ." These, then, are the evidences of
liability and of reparation for infkingements of the rights of
other states. The same is true of the Court's reference to 54. E.g., Certain Gem Interests in Polish Upper Siesia, [I9261
P.C.I.J. 30;The Free Zones Case [I9301P.C.I.J. 12;and Conditions of
49. United States v. Lit, XI Trials of War Criminals Before The Admission to Membership in the United Nations, [I9511I.C.J. 142.
Nuernberg Military Tribunals 1230- 13 17 (1 950).This caseis digested in $5. Arbitral Award of the King of Spain, [I9601I.C.J. 209, 213.
VIII Law Reports of Trials of War Criminals 34-92 (1949). See also DA 56. Temple of Preah Viear Case,[I9621I.C.J. 23, 31-32. See the
Pam 27-161-2,11 Internotiom1 Low 232 (1962). individual opinion of Judge Alfaro for a general account of the principle
50. See C. Waldock, supra note 34,at 55-57 and M. Srenson, Les of estoppel in international law, id. at 39-51.
Sources Du Droit International 126-136 (1946). 57. Id. at 26.
51. An analysis of the Soviet approach toward "general principles $8. Corfu Channel Case, [I9491I.C.J. 18.
of law" as a source of international law occurs infraat paras. 1-12et seq. 59. United Nations Administrative Tribunal Case,I19541I.C.J. 53.
52. Chonow Factory Case,119281 P.C.I.J. 31. 60. LL.0. Administrative Tribunal Case, [I9561I.C.J. 85-86.
53. Id. at 29. 61. Statute c2f The International Court of Justice, Art. 38.