sources GPL and unilateral acts - slides

Question 1

General principles of law

Answer 1

• Discussion on the scope and outcome of the topic and methodological
  approach. Description of previous work of the Commission. Question of the
  development of general principles of law over time. Consideration of the
  elements and origins of general principle of law. Proposals for three draft
  conclusions. First report of the Special Rapporteur, Mr. Marcelo VázquezBermúdez (71st session of the ILC (2019))
• Discussion of the identification of general principles of law in the sense of
  Article 38, paragraph 1(c), of the Statute of the International Court of Justice.
  Proposal for six draft conclusions on: identification of general principles of
  law derived from national legal systems, determination of the existence of a
  principle common to the principal legal systems of the world, ascertainment
  of transposition to the international legal system, identification of general
  principles of law formed within the international legal system, decisions of
  courts and tribunals, and teachings of the most highly qualified publicists.
  Second report of the Special Rapporteur, Mr. Marcelo Vázquez-Bermúdez
  (72nd session of the ILC (2021))

Question 2

General principles of law

Answer 2

Unwritten law not created by will of States
Determination:
* Comparative approach
* natural law approach?
* civilized nations?
Purpose:
* Gap filling (in addition to treaties )

Question 3

General principles of law
- Article V Claims Settlement Declaration of Algiers,
19 January 1981:

Answer 3

“The Tribunal shall decide all cases on the basis of
respect for law, applying such choice of law rules
and principles of commercial and international law
as the Tribunal determines to be applicable, taking
into account relevant usages of the trade, contract
provisions and changed circumstances.

Question 4

General principles of law
TFEU and TEU:

Answer 4

Article 340 para. 2 TFEU:
* In the case of non-contractual liability, the Union shall, in
accordance with the general principles common to the
laws of the Member States, make good any damage
caused by its institutions or by its servants in the
performance of their duties.
Article 6 para. 3 TEU:
Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and
Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States,
shall constitute general principles of the Union’s law.

Question 5

General principles of law
- Internationale Handelsgesellschaft v Einfuhr- und
Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

Answer 5

“Respect for fundamental rights forms an integral
part of the general principles of law protected by the
Court of Justice. The protection of such rights, whilst
inspired by the constitutional traditions common to
the Member States, must be ensured within the
framework of the structure and objectives of the
Community.”

Question 6

General principles of law

Answer 6

venire contra factum proprium (estoppel)
* Compensation for causing harm
* Unjust enrichment
* Interest for late payment
* Responsibility for unlawful behaviour
* State of necessity
* Abuse of rights

Question 7

Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), Application for Permission to Intervene,
Judgment, I.C.J. Reports 1990, p. 118, para. 63

Answer 7

“The “essential elements required by
estoppel” are “a statement or representation
made by one party to another and reliance
upon it by that other party to his detriment or
to the advantage of the party making it.”

Question 8

Affaire de l’Indemnité Russe, XI UNRIAA (1912), 431, 443.

Answer 8

“L’exception de la force majeure … est
opposable en droit international public aussi
bien qu’en droit privé; […] l’obligation pour
un Etat d’exécuter les traités peut fléchir « si
l’existence même de l’Etat vient à être en
danger, si l’observation du devoir
international est … self destructive. »”

Question 9

ILC Article 25 Necessit

Answer 9

“1. Necessity may not be invoked by a State as a ground for
precluding the wrongfulness of an act not in conformity with an
international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril;
and
(b) does not seriously impair an essential interest of the State or
States towards which the obligation exists, or of the international
community as a whole.
2. In any case, necessity may not be invoked by a State as a ground
for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of
invoking necessity; or
(b) the State has contributed to the situation of necessity

Question 10

Inceysa Vallisoletana S.L. v. Republic of El Salvador, ICSID
Case No. ARB/03/26, Award, 2 August 2006, para. 254.

Answer 10

“The written legal systems of the nations
governed by the Civil Law system recognize
that, when the cause of the increase in the
assets of a certain person is illegal, such
enrichment must be sanctioned by
preventing its consummation.”

Question 11

Franks and Vollering v. EPO, ILO Administrative Tribunal, 31
January 1994, Judgment No. 1333, para. 5.

Answer 11

“The law that the tribunal applies in
entertaining claims that are put to it includes
not just the written rules of the defendant
organization, but general principles of law
and basic human rights.“

Question 12

J.M.W. v. EPO, ILO Administrative Tribunal, 4 February 2004,
Judgment No. 2292, para. 11.

Answer 12

“The general principles enshrined in the
Convention, particularly the principles of nondiscrimination and the protection of property
rights […] are part of human rights, which, […] in
compliance with the Tribunal’s case law, apply
to relations with staff.”

Question 13

Unilateral acts

Answer 13

Acts and declarations with the intention to create,
modify or end international legal rights and obligations
 Intention!
* Fully unilateral (recognition, protest, …)
* Partly unilateral (in conjunction with treaty, e.g.
ratification, reservation, protest against reservation)

Question 14

ILC Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations 2006

Answer 14

“1. Declarations publicly made and manifesting the
will to be bound may have the effect of creating
legal obligations. When the conditions for this are
met, the binding character of such declarations is
based on good faith; States concerned may then
take them into consideration and rely on them;
such States are entitled to require that such
obligations be respected.”

Question 15

Unilateral acts

Answer 15

• Promise
• Renouncement
• Protest
• Recognition
  – General
  – States or governments

Question 16

Renouncement

Answer 16

• „Le Gouvernement norvégien ne fera pas de
  difficultés au règlement de cette affaire“.
• Ihlen Declaration 1919
• „The Court considers it beyond all dispute that a
  reply of this nature given by the Minister for Foreign
  Affairs on behalf of his Government in response to a
  request by the diplomatic representative of a foreign
  Power, in regard to a question falling within his
  province, is binding upon the country to which the
  Minister belongs.“ * PCIJ, Legal Status of Eastern Greenland (Denmark v. Norway),
  Judgment of 5 April 1933, PCIJ Ser. A/B No. 53, 1933, p. 70.

Question 17

Unilateral acts

Answer 17

“7. A unilateral declaration entails obligations for the
formulating State only if it is stated in clear and specific
terms. In the case of doubt as to the scope of the
obligations resulting from such a declaration, such
obligations must be interpreted in a restrictive manner.
In interpreting the content of such obligations, weight
shall be given first and foremost to the text of the
declaration, together with the context and the
circumstances in which it was formulated.”
ILC Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations 2006

Question 18

Nuclear Tests (Australia v. France; New Zealand v. France), I.C.J.
Reports 1974, pp. 267-268, para. 45, and p. 473, para. 48.

Answer 18

“Whether a statement is made orally or in
writing makes no essential difference, for such
statements made in particular circumstances
may create commitments in international law,
which does not require that they should be
couched in written form. Thus the question of
form is not decisive”.

Question 19

Subsidiary means

Answer 19

• Decisions
  – International und national courts and tribunals
  – Article 59 ICJ Statute precludes stare decisis
• Teachings
  – Specialists, ILC, IDI, ILA
• Soft Law
  – Codes of Conduct, Standards, etc.

Question 20

ILC Draft Conclusions on Subsidiary means for the
determination of rules of international law

Answer 20

• “When assessing the weight of subsidiary means for
  the determination of rules of international law,
  regard should be had to, inter alia:
• (a) their degree of representativeness;
• (b) the quality of the reasoning;
• (c) the expertise of those involved;
• (d) the level of agreement among those involved;
• (e) the reception by States and other entities;
• (f) where applicable, the mandate conferred on the
  body.”
• Draft conclusion 3 General criteria for the assessment of subsidiary
  means for the determination of rules of international law 2023

Question 21

Precedent

Answer 21

• “… 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.”
• Article 38(1) lit d ICJ-Statute
  *
  “The decision of the Court has no binding force
  except between the parties and in respect of that
  particular case.”
• Article 59 ICJ-Statute

Question 22

Stare decisis et non quieta movere

Answer 22

• “Policy of courts to stand by precedent and not to
  disturb settled point. […] Doctrine that, when court
  has once laid down a principle of law as applicable
  to a certain state of facts, it will adhere to that
  principle, and apply it to all future cases, where facts
  are substantially the same; regardless of whether
  the parties and property are the same.”
• Black’s Law Dictionary (6th ed. 1990), 1406.

Question 23

Relevance of precedents

Answer 23

• “There is no doctrine of precedent in international
  law, if by precedent is meant a rule of the binding
  effect of a single decision. […] It must be […] in the
  longer term for the development of a common legal
  opinion or jurisprudence constante, to resolve the
  difficult legal questions discussed by the SGS v.
  Pakistan Tribunal and also in the present decision.”
• SGS v. Philippines, ICSID Case No. ARB/02/6, Decision on
  Jurisdiction of 29 January 2004, para. 97.

Question 24

Relevance of precedents - Japan – Taxes on Alcoholic Beverages, 1 November 1996,
WTO Doc. WT/DS8/AB/R, 14-15, para. 5.4.

Answer 24

*
“Adopted Panel Reports are an important part of the
GATT acquis (acquired). They are often considered
by subsequent panels. They create legitimate
expectations among WTO Members, and, therefore,
should be taken into account where they are
relevant to any dispute. However, they are not
binding, except with respect to resolving the
particular dispute between the parties to that
dispute. In short, their character and their legal
status have not been changed by the coming into
force of the WTO Agreement.”

Question 25

ILC Draft Conclusions on Subsidiary means for the
determination of rules of international law

Answer 25

• “Decisions of international courts or tribunals may
  be followed on points of law where those decisions
  address the same or similar issues as those under
  consideration. Such decisions do not constitute
  legally binding precedent unless otherwise provided
  for in a specific instrument or rule of international
  law.”
• Draft conclusion 7 Absence of legally binding precedent in
  international law 2024