the U.N. Administrative Tribunal] is res judicata and has binding force between the parties to the dispute.

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, July 13, 1954, I.C.J. Reports (1954) 47, 53, 56.

A review of the opinions of the International Court of Justice, and also of individual concurring opinions and of dissenting opinions, reveals that, increasingly, previous opinions of the Court and of other international tribunals have been relied on in support of such opinions.

Works of Writers
$9

"The teachings of publicists are treated less favorably [than decisions of national courts] at the hands of the Court. No treatise or doctrinal writing has been cited by the Court. In connection with its conclusion in the Lotus Case that the existence of a restrictive rule of international law had not been conclusively proved, it referred to 'teachings of publicists' without attempting to assess their value, but it failed to find in them any useful indication. Individual judges have not been so restrained in their references to the teachings of publicists; they have not hesitated to cite living authors, and even the published works of members of the Court itself."

Hudson, The Permanent Court of International Justice, 1920-1942 (1943) 615. For the Lotus Case, Hudson cites Permanent Court of International Justice, Judgment, Sept. 7, 1927, Series A, No. 10, pp. 27, 31. As to references by individual judges, the author cites: idem, No. 22, p. 44.

"The Court, having arrived at the conclusion that the arguments advanced by the French Government either are irrelevant to the issue or do not establish the existence of a principle of international law precluding Turkey from instituting the prosecution which was in fact brought against Lieutenant Demons, observes that in fulfilment of its task of itself ascertaining what the international law is, it has not confined itself to a consideration of the arguments put forward, but has included in its researches all precedents, teachings and facts to which it had access and which might possibly have revealed the existence of one of the principles of international law contemplated in the special agree

ment.

The S. S. Lotus (France and Turkey), Permanent Court of International Justice, Judgment, Sept. 7, 1927, Series A, No. 10, pp. 4, 31; II Hudson, World Court Reports (1935) 23, 45.

The International Court of Justice referred to the "opinions of writers" in its opinion in the Nottebohm Case. The reference was,

however, not to the opinion of an individual writer or writers. In that case the Court referred to the need for genuine connection between a person and the state the nationality of which is claimed, and to the support given to this requirement by international and domestic tribunals. The Court stated:

"According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties."

Nottebohm Case (Liechtenstein v. Guatamala), Judgment, Apr. 6, 1955, I.C.J. Reports (1955) 4, 23.

However, in individual concurring and in individual dissenting opinions with respect to opinions of the International Court of Justice, opinions of publicists have been cited.

Equity; Ex Aequo et Bono

§ 10

"As the Statute fails to provide expressly for the application of international law, so it fails to provide expressly for the Court's application of equity. In 1920, M. de Lapradelle proposed that the Court should 'judge in accordance with law, justice and equity,' and M. Ricci-Busatti would have included 'principles of equity in what became Article 38 of the Statute; the rejection of these proposals at that time was partly due to the extent of the jurisdiction envisaged for the Court. Prior to 1920, numerous special and general arbitration treaties referred to the application of equity, the term equity being almost invariably coupled with justice or with law. Such references go back for many years, as indicated by a British-Netherlands règlement of 1654, and Article 25 of the Netherlands-Portugal treaty of 1661. Several outstanding multipartite instruments refer to equity: e.g., Article 28 of a règlement adopted at the Congress of Vienna in 1815 provided for decisions by an arbitral commission en toute justice, et avec la plus grand equité; Article 7 of the 1907 Prize Court Convention provided for that Court's applying rules of international law, and where generally recognized rules do not exist les principes généraux de la justice et de l'equité; the Treaty of Versailles of 1919 provided that the Reparations Commission should 'not be bound by any particular code or rules of law,' but should be 'guided by justice, equity and good faith'; an annex to the Spitzbergen Treaty of 1920, to which many States were parties, envisaged a tribunal applying rules of international law and the general principles of justice and equity. References to equity have more frequently been made in bipartite treaties: an

American-British treaty of 1794 authorized a claims commission to decide according to justice, equity and the law of nations'; in claims conventions of 1853, 1854, 1863 and 1871, the United States and Great Britain required commissioners to take oath to decide 'to the best of their judgment, and according to justice and equity,' and in 1910, they agreed that a tribunal should decide 'in accordance with treaty rights and with principles of international law and of equity. Both the United States and Great Britain concluded treaties of similar import with other States. Such provision was included, also, in treaties between various American States, and in some treaties between European States. Since 1920, the United States has concluded a series of arbitration treaties applying to disputes 'justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or [and] equity'; and a series of treaties among Scandinavian States has provided for the arbitration of disputes not falling under Article 36 of the Statute of the Court, in accordance with the principles of law and equity. In some cases, also, recent special agreements have continued to refer to equity. "While the jurisprudence of international tribunals has also associated equity with law, the tribunals which have been authorized to apply principles of equity have not gone far in determining what these principles are. Clearly, they are not to be derived from the municipal law of any particular State; an AmericanNorwegian tribunal stated in 1922 that 'the majority of international lawyers seem to agree that these words [law and equity] are to be understood to mean general principles of justice as distinguished from any particular system of jurisprudence or the municipal law of any State.' In 1923 an American-British tribunal held that 'no ground of equity' required the United States to pay compensation for cutting a cable; but in 1926 the same tribunal held that the Cayuga Indians had a 'just' claim against the United States. In 1933, the American-Panamanian Commission found 'no reason to scrutinize' whether the terms international law, justice and equity 'embody an indivisible rule or mean that international law, justice, and equity have to be con sidered in the order in which they are mentioned, because either of these constructions leads to the conclusion that the Commission shall be guided rather by broad conceptions than by narrow interpretations.'

"This long and continuous association of equity with the law which is applicable by international tribunals would seem to warrant a conclusion that equity is an element of international law itself. The conceptions introduced into the law as principles of equity cannot be listed with definiteness; but they are not to be discarded because they are vague, for that is a quality attaching to international law itself. They do not permit an individual judge to pursue merely personal predilections, and they must not be taken to undermine the established principles of the law. Their office is to liberalize and to temper the application of law, to prevent extreme injustice in particular cases, to lead into new directions for which received materials point the way. In this

view, it may be possible to say that equity is a part of international law in the same way that it has been absorbed by various systems of municipal law, without drawing upon general principles of municipal law; yet it is easier for a tribunal to include equity in the law which it applies if it has been expressly authorized to apply 'the general principles of law recognized by civilized nations.'

"The Court may be said to have applied a principle of equity in the Meuse Case in 1937; it compared the Belgian lock against which the Netherlands complained to a lock previously built by the Netherlands, and declared that 'in these circumstances, the Court finds it difficult to admit that the Netherlands are now warranted in complaining of the construction and operation of a lock of which they themselves set an example in the past.' This was a clear application of a principle of equity requiring equality between the parties, as one of the judges stated more explicitly in a separate opinion."

Hudson, The Permanent Court of International Justice, 1920-1942 (1943) 615-618. For the treaties and agreements referred to, see ibid. Hudson's citations to cases referred to: American-Norwegian Case (1922), Scott, Hague Court Reports (1932) 39; Eastern Extension Telegraph Company Case, 1923 American-British Tribunal, Nielsen's Report, p. 73; Cayuga Indians Case, ibid., p. 307; Perry Case, American-Panamanian Commission, Hunt's Report, p. 71; Meuse Case, Series A/B, No. 70, p. 4.

Judge Hudson, concurring with the decision of the Court in the case of the Diversion of Water from the River Meuse, stated in his individual opinion:

"What are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals. . . . A sharp division between law and equity, such as prevails in the administration of justice in some States, should find no place in international jurisprudence; even in some national legal systems, there has been a strong tendency towards the fusion of law and equity. Some international tribunals are expressly directed by the compromis which control them to apply 'law and equity'. See the Cayuga Indians Case, Nielsen's Report of the United States-British Claims Arbitration (1926), p. 307. Of such a provision, a special tribunal of the Permanent Court of Arbitration said in 1922 that 'the majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as distinguished from any particular systems of jurisprudence'. Proceedings of the United States-Norwegian Tribunal (1922), p. 141. Numerous arbitration treaties have been concluded in recent years which apply to differences which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity'. Whether the reference in an arbitration treaty is to the application of law and equity' or to justiciability dependent on the possibility of applying 'law or equity', it would seem to envisage equity as a part of law.

"The Court has not been expressly authorized by its Statute to apply equity as distinguished from law. Nor, indeed, does the Statute expressly direct its application of international law, though as has been said on several occasions the Court is 'a tribunal of international law'. Series A, No. 7, p. 19; Series A, Nos. 20/21, p. 124. Article 38 of the Statute expressly directs the application of 'general principles of law recognized by civilized nations', and in more than one nation

principles of equity have an established place in the legal system. The Court's recognition of equity as a part of international law is in no way restricted by the special power conferred upon it 'to decide a case er aequo et bono, if the parties agree thereto.' . . . It must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply." Permanent Court of International Justice, Judgment, June 28, 1937, Series A/B, No. 70, pp. 4, 76-77; IV Hudson, World Court Reports (1943) 178, 231-232.

The Special Arbitral Tribunal between Germany and Portugal in the Maziva and Naulilaa cases, decided in 1928, recalled the sources of law enumerated in article 38 of the Statute of the Permanent Court of International Justice, and added: "Finally, in the absence of rules of international law which are applicable to the facts in dispute, the arbitrators are of opinion that it is their duty to fill the gap by applying principles of equity, fully taking into account the spirit of international law, which is applied by way of analogy, and its evolution."

8 M.A.T. (1929) 409, 413 (translation).

See also Berlia, Essai sur la portée de la clause de jugement en équité en droit des gens (1937).

"It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him.”

German Interests in Polish Upper Silesia and the Factory at Chorzów, Permanent Court of International Justice, Judgment, July 26, 1927, Series A, No. 9, pp. 4, 31; I Hudson, World Court Reports (1934) 589, 610.

On "Decisions ex aequo et bono", Judge Hudson has the following to say in his standard treatise on the Permanent Court of International Justice:

"Article 38 of the Statute also provides that the previous enumeration in the Article 'shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.' The phrase ex aequo et bono, incorporated in the Statute without much explanation, has its roots in Roman law. Modern usage has invested the phrase with only a general meaning, without making it a term of art. In the last century Chile entered into special arbitration agreements with several States providing for decisions ex aequo et bono, and the example was later followed by Brazil. The provision in Article 38 of the Court's Statute inspired many general agreements after 1920. In a series of German treaties, provision was made that if the parties agree, an arbitral tribunal might decide in accordance with considera