General Principles of Law South-West Africa Case (2nd Phase, ICJ, Report 1966)

Barcelona Traction Case (Belgium s. Spain, 2nd phase, ICJ Report, 1970) Judicial Decisions Article 59, Statute of the ICJ Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case Learned Writers Other possible sources of international law Acts of international organization Soft Law Equity -The River Meuse Case (Netherlands vs. Belgium, PCIJ Reports, 1937) The Diversion of Water from the Meuse, Judgement of 28 June 1937 Introduction The River Meuse rises in northeastern France, flows through Belgium and Holland into the North Sea, where it forms a common delta with the Rhine. The Rhine-Meuse delta is formed by the Upper Merwede, which has two tributaries, the New Merwede and the Lower Merwede. From its source in the Plateau of Langres, six miles west-northwest of Bourbone-les-Bains, it passes Neufchteau au Troussey, entering Belgium below Givet. Passing Lige, it forms the Netherlands-Belgian border. At Maastricht it is wholly in the Netherlands. Facts The Netherlands and Belgium concluded a Treaty on 12 May 1863 in order to settle permanently and definitively the rgime governing diversions of water from the Meuse for the feeding of navigation canals and irrigation channels. By Article 1 of this Treaty, the construction of the new intake has been provided in the Netherlands, below Maastricht, and it would constitute the feeding conduct for all canals situated below that town and for irrigation in the Campine and in the Netherlands. In 1925, the two States signed a new agreement designed to settle all differences concerning the construction or the enlargement of new canals. The Netherlands First Chamber however refused to ratify. Following this, the Netherlands started to construct the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage, while Belgium began to construct the Albert Canal, a barrage at Monsin and a lock at Neerhaeren. The Netherlands seized the Court with a unilateral application under Article 36(2) of the Court's Statute (compulsory jurisdiction). Submission of the Parties

The Netherlands asked the Court to declare that the construction of the new canals by Belgium was contrary to the Treaty of 1863, and to order Belgium: a) to discontinue all the works and to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of that Treaty; and b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from any further feeding. Belgium asked the Court to declare that the Netherlands' submission was ill-founded, that the Borgharen barrage had been constructed in breach of the Treaty of 1863 and that the Juliana Canal too, was subject to the provisions of that same Treaty. Summary of the Judgement The Court rejected the Netherlands' submission with effect that the Article 1 of the Treaty of 1863 gave it the right to supervise and control all the intakes, situated not only in Netherlands' territory, but also in Belgium. The text of this article provided for only one, single feeder in the Netherlands. With regard to the construction by Belgium of the Albert Canal (water taken from the Meuse in Netherlands territory), the origin of the water was irrelevant, In the opinion of the Court, the two States could modify, enlarge, transform, fill the canals and increase the volume of water in them on condition that the canals did not leave their territories and the volume of water was not affected. The Court rejected the first Belgian submission concerning the Borgharen barrage, stating that the Treaty of 1863 did not forbid the Netherlands to alter the depth of water in the Meuse at Maastricht without the consent of Belgium, if the discharge of water, the volume and the current were not affected. The second Belgian submission was also rejected by the Court on the ground that the construction of the Juliana Canal which was situated on the right bank of the Meuse did not come under the rgime of water supply provided for by the Treaty of 1863, which was designed to regulate the supply of water to the canals situated on the left bank of the Meuse.

-Article 38 (2), ICJ Statute (ex aequo et bono) Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

ex aequo et bono - Ex Aequo Et Bono is a Latin term which means what is just and fair or according to equity and good conscience. Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and
just. A decision-maker who is authorized to decide ex aequo et bono is not bound by legal rules but may take account of what is just and fair. Most legal cases are decided on the strict rule of law. For example, a contract will be enforced by the legal system no matter how unfair it may prove to be. But a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just under the given circumstances. It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto. In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitral tribunal should decide as ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration. (USLegal.com)

The Hierarchy of the Sources of International Law None explicitly indicated but note how a conventional rule or treaty norm may be treated in precedence over a customary law manifested in North Sea case because refers to a source of mutual obligations of the parties. -Akehurst suggested a practical reason for the application of the sources in the order that they are listed in Article 38 (international convention, international custom, and general principles of law) treaties are EASIER TO PROVE than custom and custom is easier to prove than General International Law Principles which may determine order of precedence: 1. Lex posterior derogate priori 2. Lex specialis derogate generali 3. Lex generali posterior non derogate speciali priori Jus Cogens Article 53 (1969 Convention on the Law of Treaties) Treaties conflicting with a peremptory norm of general international law (jus cogens) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Obligations erga omnes -Obligation of every State towards the international community as a whole; distinctive character of this obligation is pointed out in the Barcelona Traction Case. -by its very nature, it is the concern of ALL states; all States have a legal interest in their protection -concept of Common Heritage of Mankind (e.g. Outer Space Treaty and UNCLOS)