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General Principles of International Law

There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of the general principles of law recognised by civilised nations was inserted into article 38 as a source of law, to close the gap that might be uncovered in international law and solve this problem which is known legally as non liquet. There are various opinions as to what the general principles of law concept is intended to refer. Some writers regard it as an afrmation of Natural Law concepts, which are deemed to underlie the system of international law and constitute the method for testing the validity of the positive (i.e. manmade) rules. Other writers, particularly positivists, treat it as a sub-heading under treaty and customary law and incapable of adding anything new to international law unless it reects the consent of states.

Res Judicata The question of res judicata was discussed in some detail in the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) case, where the issue focused on the meaning of the 1996 decision of the Court rejecting preliminary objections to jurisdiction.126 The Court emphasised that the principle signies that the decisions of the Court are not only binding on the parties, but are nal, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. The Court noted that two purposes, one general and one specic, underpinned the principle of res judicata, internationally as well as nationally. The rst referred to the stability of legal relations that requires that litigation come to an end. The second was that it is in the interest of each party that an issue which has already been adjudicated in favour of that party not be argued again. It was emphasised that depriving a litigant of the benet of a judgment it had already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes. The Court noted that the principle applied equally to preliminary objections judgments and merits judgments and that since jurisdiction had been established by virtue of the 1996 judgment, it was not open to a party to assert in current proceedings that, at the date the earlier judgment was given, the Court had no power to give it, because one of the parties could now be seen to have been unable to come before it. This would be to calling question the force as res judicata of the operative clause of the judgment. Further, the Court in the preliminary objections phase of the Right of Passage case stated that: it is a rule of law generally accepted, as well as one acted upon in the past by the Court, that, once the Court has been validly seized of a dispute, unilateral action by the respondent state

in terminating its Declaration [i.e. accepting the jurisdiction of the Court], in whole or in part, cannot divest the Court of jurisdiction.

Estoppel The Court has also considered the principle of estoppel which provides that a party that has acquiesced in a particular situation cannot then proceed to challenge it. The meaning of estoppel was conrmed in Cameroon v. Nigeria, where the Court emphasised that An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice.

Equity Apart from the recourse to the procedures and institutions of municipal legal systems to reinforce international law, it is also possible to see in a number of cases references to equity as a set of principles constituting the values of the system. The most famous decision on these lines was that of Judge Hudson in the Diversion of Water from the Meuse case in 1937 regarding a dispute between Holland and Belgium. Hudson pointed out that what are regarded as principles of equity have long been treated as part of international law and applied by the courts. Under article 38 of the Statute, he declared, if not independently of that article, the Court has some freedom to consider principles of equity as part of the interna tional law which it must apply. The concept of equity151 has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968 the Tribunal agreed that equity formed part of international law and that accordingly the parties could rely on such principles in the presentation of their cases. The relevant courts are not applying principles of abstract justice to the cases, but rather deriving equitable principles and solutions from the applicable law. The Court declared in the Libya/Malta case that the justice of which equity is an emanation, is not an abstract justice but justice according to the rule of law; which is to say that its application should display consistency and a degree of predictability; even though it also looks beyond it to principles of more general application. Its existence, therefore, as a separate and distinct source of law is at best highly controversial. The use of equitable principles, however, has been particularly marked in the 1982 Law of the Sea Convention. Article 59, for example, provides that conicts between coastal and other states regarding the exclusive economic zone are to be resolved on the basis of equity, while by article 74 delimitation of the zone between states with opposite or adjacent coasts is to be effected by agreement on the basis of international law in order to achieve an equitable solution.

In the case of Burkina Faso/Republic of Mali, for example, the Court noted that although equity did not always mean equality, where there are no special circumstances the latter is generally the best expression of the former.168 The Court also emphasised that to resort to the concept of equity in order to modify an established frontier would be quite unjustied

PEACEFUL SETTLEMENT OF DISPUTES Basically the techniques of conict management fall into two categories: diplomatic procedures and adjudication. The former involves an attempt to resolve differences either by the contending parties themselves or with the aid of other entities by the use of the discussion and fact-nding methods. Adjudication procedures involve the determination by a disinterested third party of the legal and factual issues involved, either by arbitration or by the decision of judicial organs. Although for the sake of convenience each method of dispute settlement is sepa-rately examined, it should be noted that in any given situation a range of mechanisms may well be utilised. A good example of this is afforded by the successful settlement of the ChadLibya boundary dispute.(first signed a framework settlement, went to court, couldnt implement orders, signed an agreement to implement, sough security council resolution, situation assigned support team from UN and then again signed some agreement, not important, just remember example) However, states are not obliged to resolve their differences at all, and this applies in the case of serious legal conicts as well as peripheral political disagreements. All the methods available to settle disputes are operative only upon the consent of the particular states. This, of course, can be contrasted with the situation within municipal system. The mechanisms dealing with the peaceful settlement of disputes re-quire in the rst instance the existence of a dispute. A distinction is sometimes made between legal and political disputes, or justiciable and non-justiciable disputes. Whether any dispute is to be termed legal or political may well hinge upon the particular circumstances of the case, the views adopted by the relevant parties and the way in which they choose to characterise their differences. This does not, however, imply that there are not signicant differences between the legal and political procedures available for resolv-ing problems. For one thing, the strictly legal approach is dependent upon the provisions of the law as they stand at that point, irrespective of any reforming tendencies the particular court may have, while the political techniques of settlement are not so restricted. The role of political inuences and considerations in inter-state disputes is obviously a vital one, and many settlements can only be properly understood within the wider international political context.

Article 2(3) of the United Nations Charter provides that: [a]ll members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered. The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States develops this principle and notes that: states shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. There would appear, therefore, to be no inherent hierarchy with respect to the methods specied and no specic method required in any given situation. States have a free choice as to the mechanisms adopted for settling their disputes. NEGOTIATION Of all the procedures used to resolve differences, the simplest and most utilised form is understandably negotiation. It consists basically of discus-sions between the interested parties with a view to reconciling divergent opinions, or at least understanding the different positions maintained. It does not involve any third party, at least at that stage, and so differs from the other forms of dispute management. Is Normally a precursor to other modes of settlement. Where there is an obligation to nego-tiate, this would imply also an obligation to pursue such negotiations as far as possible with a view to concluding agreements. The Court held in the North Sea Continental Shelf cases that: the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition . . . they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modication of it. Where disputes are by their continuance likely to endanger the maintenance of international peace and security, article 33 of the UN Charter provides that the parties to such disputes shall rst of all seek a solution by negotiation, inquiry or mediation, and then resort, if the efforts have not borne fruit, to more complex forms of resolution. GOOD OFFICES AND MEDIATION The employment of the procedures of good ofces and mediation involves the use of a third party, whether an individual or individuals, a state or group of states or an international organisation, to encourage the contending parties to come to a settlement. Unlike the techniques of arbitration and adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its termination by themselves. Provisions for settling the dispute are not prescribed. Eg: the function performed by the USSR in assisting in the peaceful settlement of the IndiaPakistan dispute in 1965. The

UN Secretary-General can sometimes play an important role by the exercise of his good ofces. An example of this was provided in the situation relating to Afghanistan in 1988.

INQUIRY Where differences of opinion on factual matters underlie a dispute between parties, the logical solution is often to institute a commission of inquiry to be conducted by reputable observers to ascertain precisely the facts in contention. However, the technique is limited in that it can only have relevance in the case of international disputes, involving neither the honour nor the vital interests of the parties, where the conict centres around a genuine disagreement as to particular facts which can be resolved by recourse to an impartial and conscientious investigation. The value of inquiry within specied institutional frameworks, never-theless, has been evident. Its use has increased within the United Nations generally and in the specialised agencies processes of dispute settlement in the context of general factnding.

CONCILIATION The process of conciliation involves a third-party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement. As such it involves elements of both inquiry and mediation, and in fact the process of conciliation emerged from treaties providing for permanent inquiry commissions. The rules dealing with conciliation were elaborated in the 1928 General Act on the Pacic Set-tlement of International Disputes (revised in 1949). The function of the commissions was dened to include inquiries and mediation techniques. Such commissions were to be composed of ve persons, one appointed by each opposing side and the other three to be appointed by agreement from amongst the citizens of third states. The proceedings were to be concluded within six months and were not to be held in public. The conciliation pro-cedure was intended to deal with mixed legalfactual situations and to operate quickly and informally. The conciliation procedure was used in the Iceland Norway dispute over the continental shelf delimitation between Iceland and Jan Mayen island.

INTERNATIONAL INSTITUTIONS AND DISPUTE SETTLEMENT International organisations and facilities of limited competence The various specialised agencies which encourage international co-operation in functional spheres have their own procedures for settling disputes between their members relating to the interpretation of their constitutional instruments. Such procedures vary from organisation to organisation, although the general pattern involves recourse to one of the main organs of the

institution upon the failure of negotiations. If this fails to result in a settlement, the matter may be referred to the International Court of Justice or to arbitration unless otherwise agreed. In such cases, recourse to the Court is by way of a request for an Advisory Opinion, although by virtue of constitutional provisions, the judgment of the Court would be accepted as binding and not as advisory. In other cases, the opinions to be given by the International Court or by an arbitral tribunal are to be non-binding. A number of organisations provide for other mechanisms of inquiry and dispute settlement. REGIONAL ORGANISATIONS Article 52(1) of Chapter VIII of the UN Charter provides that nothing in the Charter precludes the existence of regional arrangements or agencies or dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the UN. Thus, although reference where appropriate to regional organisations or arrangements should take place, this does not affect the comprehensive role of the UN through the Security Council or General Assembly in dealing in various ways with disputes between states. BINDING METHODS OF DISPUTE SETTLEMENT Such courts and tribunals may be purely inter-state or permit individu-als to appear as applicants or respondents.223 They may be permanent or temporary, being established to resolve one particular dispute. In determining whether a body established by states to settle a dispute is of a judicial, administrative or political nature, the Tribunal in the Laguna del Desierto case emphasised that the practice of international law is to look at the nature of the procedure followed by those states before the body in question ARBITRATION The 1899 Hague Convention for the Pacic Settlement of Disputes included a number of provisions on international arbitration, the object of which was deemed to be under article 15, the settlement of differences between states by judges of their own choice and on the basis of respect for law. Arbitration tribunals may be composed in different ways. There may be a single arbitrator or a collegiate body. In the latter case, each party will appoint an equal number of arbitrators with the chairman or umpire being appointed by either the parties or the arbitrators already nominated. Like arbitration, judicial settlement is a binding method of dispute settlement, but by means of an established and permanent body. There are a number of international and regional courts deciding disputes between subjects of international law, in accordance with the rules and principles of international law. Most prominent being the ICJ.


Judge Huber noted in the Island of Palmas case that: sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state. Territorial sovereignty has a positive and a negative aspect. The former relates to the exclusivity of the competence of the state regarding its own territory, while the latter refers to the obligation to protect the rights of other states. The essence of territorial sovereignty is contained in the notion of title. This term relates to both the factual and legal conditions under which territory is deemed to belong to one particular authority or another. As the International Court noted in the Burkina Faso/Mali case, the word title comprehends both any evidence which may establish the existence of a right and the actual source of that right. Apart from territory actually under the sovereignty of a state, interna-tional law also recognises territory over which there is no sovereign. Such territory is known as terra nullius.

THE ORIGINAL ACQUISITION OF TERRITORY Can happen by many ways. Occupation is a method of acquiring territory which belongs to no one (terra nullius) and which may be acquired by a state in certain situations. The occupation must be by a state and not by private individuals, it must be effective and it must be intended as a claim of sovereignty over the area. The high seas cannot be occupied in this manner for they are res communis, but vacant land may be subjected to the sovereignty of a claimant state. It relates primarily to uninhabited territories and islands, but may also apply to certain inhabited lands. he issue was raised in the Western Sahara case before the International Court of Justice.81 The question was asked as to whether the territory in question had been terra nullius at the time of colonisation. It was empha-sised by the Court that the concept of terra nullius was a legal term of art used in connection with the mode of acquisition of territory known as occupation.82 The latter mode was dened legally as an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession. Occupation, both in the normal sense of the word and in its legal meaning, was often preceded by discovery, that is the realisation of the existence of a particular piece of land.87 But mere realisation or sighting was never considered (except for periods in the fteenth and sixteenth centuries and this is not undisputed) as sufcient to constitute title to territory. Something more was required and this took the form of a symbolic act of taking possession, whether it be by the raising of ags or by solemn proclamations or by more sophisticated ritual expressions. As time passed, the conditions changed and the arbitrator in the Island of Palmas case pointed to the modern effect of discovery as merely giving an inchoate title

which had to be completed within a reasonable time by the effective occupation of the relevant region. Discovery only put other states on notice that the claimant state had a prior interest in the territory which, to become legally meaningful, had to be supplemented by effective occupation within a certain period. Accretion This describes the geographical process by which new land is formed and becomes attached to existing land, as for example the creation of islands in a river mouth or the change in direction of a boundary river leaving dry land where it had formerly owed. Where new land comes into being within the territory of a state, it forms part of the territory of the state and there is no problem. When, for example, an island emerged in the Pacic after an under-sea volcano erupted in January 1986, the UK government noted that: We understand the island emerged within the territorial sea of the Japanese island of Iwo Jima. We take it therefore to be Japanese territory. STATE SUCCESSION TO TERRITORY Cession This involves the peaceful transfer of territory from one sovereign to an-other (with the intention that sovereignty should pass) and has often taken place within the framework of a peace treaty following a war. Because cession has the effect of replacing one sovereign by another63 over a particular piece of territory, the acquiring state cannot possess more rights over the land than its predecessor had. This contrasts with, for example, accretion which is treated as an orig-inal title, there having been no previous legal sovereign over the land. The Island of Palmas case emphasised this point. It concerned a dispute between the United States and the Netherlands. The claims of the United States were based on an 1898 treaty with Spain, which involved the cession of the island. It was emphasised by the arbitrator and accepted by the parties that Spain could not thereby convey to the Americans greater rights than it itself possessed. Whether an actual delivery of the property is also required for a valid cession is less certain. It will depend on the circumstances of the case. Conquest and the use of force How far a title based on force can be regarded as a valid, legal right recognisable by other states and enforceable within the international system is a crucial question. Conquest, the act of defeating an opponent and occupying all or part of its territory, does not of itself constitute a basis of title to the land. It does give the victor certain rights under international law as regards the territory, the rights of belligerent occupation,71 but the territory remains subject to the legal title of the ousted sovereign.72

Sovereignty as such does not merely pass by conquest to the occupying forces, although complex situations may arise where the legal status of the territory occupied is, in fact, in dispute prior to the conquest. It is, however, clear today that the acquisition of territory by force alone is illegal under international law. This may be stated in view of article 2(4) of the UN Charter and other practice. Eg. In Security Council resolution 662 (1990), adopted unanimously, the Council decided that the declared Iraqi annexation of Kuwait under any form and whatever pretext has no legal validity and is considered null and void. Acquisition of territory following an armed conict would require fur-ther action of an international nature in addition to domestic legislation to annex. Prescription