39

INDIVIDUAL OPINION BY JUDGE ALVAREZ,
[Translation.]}

I am in agreement with the Judgment delivered by the Court,
but I feel that it is desirable to give prominence to certain consider-
ations of a legal character in support of that Judgment.

I.

The cataclysm through which we have just passed opens a new
era in the history of civilization ; it is of greater importance than
all those that preceded it : more important than that of the Renais-
sance, than that of the French Revolution of 1789 or than that
which followed the first World War ; that is due to the profound
changes which have taken place in every sphere of human activity,
and above all in international affairs and in international law.

It is therefore necessary to consider what is the present state of
that law. We must examine it in connexion with the questions
raised by the dispute submitted to the Court. That does not
mean that this Court should pronounce on all the legal issues
which those questions connote; but it seems desirable that one
of the judges, at least, should examine them, and that is the task
I have set myself in this individual opinion.

Il.

Among the different legal issues relating to the present dis-
pute, I shall concern myself with the following seven:

A.—The law which the Court has to apply.

B.—The importance of politics, of force and of public opinion
in regard to the exercise of the rights of States.

C.—The sovereignty of States. The new conception of that
sovereignty.

D.—The responsibility of States. The different aspects of that
responsibility presented in the dispute before the Court.

E.—The passage of merchant ships and warships of one State
through the territorial waters of another State, and also
through straits. Present position of this question.

F.—Intervention, acts of force, violations of sovereignty.

G.—Misuse of right.

All of the above are either old subjects presented under new
aspects, or entirely new subjects. They all belong to what has
been termed the new international law.

39
INDIVIDUAL OPINION BY JUDGE ALVAREZ 40

I will now examine these different points on broad lines, but
without indicating their respective application.to the present
dispute, for that has been adequately dealt with in the Judgment.

IIT.

In the individual opinion which I appended to the Advisory
Opinion delivered by the International Court of Justice on May
28th, 1948, I pointed out that, in consequence of profound changes
that had taken place in international relations, a new interna-
tional law had arisen; it is founded on social interdependence.
In that opinion I described the characteristics of this new law.
Briefly, it is the realization of social justice. It-is entirely different
from the old law, which was strictly juridical; it approaches
nearer to the notion of equity, without however being merged in it.
This new international law is not a lex ferenda, as is often believed;
it has a real existence and it has essential and actual foundations—
for instance, in the new régime of social interdependence which
is coming into being, in the Charter of the United Nations and in
other spheres which need not be enumerated. It often comes
into collision with the old international law.

What is the law that the Court should apply ? Is it that which
existed until the cataclysm of 1939? Or must the Court remodel
that law, bring it—so to speak——-up to date and into harmony with
the new conditions of social and international relations? (New
international law.)

It is generally believed that the function of the Court is simply
to apply the existing international law, without considering whether
or not it corresponds to these new conditions, and that if the Court
were to remodel the law it would be really assuming the task of a
legislator.

But the present Court has a new mission which was not conferred
—at least not expressly—on the Court which preceded it. For the
Charter of the United Nations has instructed the General Assembly
in Article 13 to “encourage the progressive development of inter-
national law and its codification”. And, with a view to obtaining
these results, the Assembly in its Resolution 171 of 1947 expressed
the desire that the International Court of Justice should develop
this law, in other words should bring it up to date.

The Court has thus, at the present moment, three functions :

(a) the former function, which consisted in elucidating the
existing law, and in defining and confirming it ;

(b) that of modifying, in conformity with the existing conditions
of international relations, provisions which, though in force, have
become out of date ;

(c) that of creating and formulating new precepts, both for old
problems where no rules exist and also for new problems.

40
INDIVIDUAL OPINION BY JUDGE ALVAREZ AI

The two latter functions of the Court have their origin in the
fact that international life is in a state of constant evolution, and
that international law must always be a reflection of that life. In
exercising these functions the Court must not proceed arbitrarily,
but must gain its inspiration from the great principles of the new
international law.

The following two examples may serve to illustrate the correct-
ness of what I have just said. Suppose that the Security Council
of the U.N.O. decided to take measures of coercion against a State
and, with that object, despatched warships, belonging to different
countries—for the U.N.O. has no naval forces of its own. If this
international squadron desired to pass through the territorial
waters of certain States, the latter cannot do anything to impede
its passage, under any pretext, not even if their national laws requi-
red a previous authorization, or other formalities. Here we have
something new, the passage of an international force, which is
surely entitled to pass freely everywhere. If a dispute arising out
of this fact were referred to the Court, it would be quite inadmissible
for it to rule that this international force must comply with the
national legislation of the coastal States.

Coming next to the second example, also of a decisive character :
we are all familiar with the well-established doctrine in international
law of the clause known as rebus sic stantibus, according to which
a State may refuse to execute a treaty if the conditions which
prevailed at the time of signature have substantially changed.
That doctrine is so just that it has begun to find its way into private
law. But the power of the Court to remodel international law is
merely the application in every branch of that law of the doctrine
of the clause rebus sic stantibus ; the principle at the root of it is
the same: it is a principle of social justice.

The Court is therefore confronted with this dilemma: should
it strictly apply the rules of the existing law, even if they are
obsolete and might lead to injustices or to settlements which might
be found unacceptable, or should it review these rules, as has just
been explained ? In my opinion there is only one answer.

IV,

The law of social interdependence does not place law in opposi-
tion to politics, as has been done hitherto; on the contrary, it
admits that there are close relations between ‘them.

Jurists, imbued with traditional law, have regarded international
law as being of a strictly juridical character ; they only consider
what they describe as pure law, to the entire exclusion of politics
as something alien to law. But pure law does not exist : law is the
result of social life and evolves with it ; in other words, it is, toa
large extent, the effect of politics—especially of a collective kind
—as practised by the States. We must therefore beware of

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 42

considering law and politics as mutually antagonistic. Each of
them should be permeated by the other.

Politics and public opinion exercise, a great influence on the
excercise of the rights of States. Different cases may arise; some
of them have arisen in the present dispute :

A.—A State possesses an unquestionable right vis-à-vis another
State, but is unwilling to exercise it for different political reasons,
perhaps because it wishes to maintain good relations with the said
State.

B.—A State possesses a right vis-à-vis another State, but the
latter disputes it. May it support its right by the use of force ?
And may the other State, for its part, resist by employing force
in its turn?

C.—A State has a right which it is entitled to exercise in the
territory of another State, e.g., the right of passage. May it
support that right by force if it is disputed? And may the other
State, in its turn, resist by force ? -

D.—The rights of two States are in conflict ; this results, toa
large extent, from the individualist régime which admits hardly
any limitations to the rights which it recognizes. How are such
conflicts to be resolved ?

E.—A State does not possess the right to perform certain acts
in the territory of another State, but its vital interests, or the
general interest, impel it to perform these acts, thus violating the
sovereignty of the other State and international law.

F.—A State fears that it may be the victim of aggression by
another State, or entertains a legitimate fear that the latter intends
to prevent it from exercising one of its rights. May it employ the
threat of force, or even force itself, as a precautionary measure, to
prevent this aggression or the violation of its right ?

G.—A State acts in legitimate self-defence.

In all these situations, political considerations will play a very
important part in the attitude of the States concerned. These
States will have to show great regard for public opinion.

The Charter of the U.N.O. (para. 4 of Art. 2) forbids the employ-
ment of force except in case of legitimate self-defence (Art. 51).
Consequently, a State which is in one of the situations mentioned
above—except in those mentioned in paragraphs A and E—must
have recourse, not to force but to the Security Council or to
the International Court of Justice.

Here we see clearly the difference between the old and the new
international law.

It may be observed, incidentally, that in spite of the prohibition
of the use of force in the Charter of the United Nations, it is still
possible, in certain cases, for force to produce juridical effects :
for example, acquisitions made by the victor after a war, the inde-

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 43

pendence of colonies, the secession of States, such secession being
subsequently recognized by the mother countries or by U.N.O.
I will not dwell longer on this subject, which is so largely of a psycho-
logical character, as it is outside the scope of these observations.

V.

Questions which concern the sovereignty of States deserve special
consideration, for the main issues in the present dispute have
their primary origin in that notion or will affect it.

By sovereingty, we understand the whole body of rights and
attributes which a State possesses jn its territory, to the exclusion
of all other States, and also in its relations with other States.

Sovereignty confers rights upon States and imposes obligations
on them.

These rights are not the same and are not exercised in the same
way in every sphere of internationallaw. I have in mind the four
traditional spheres—terrestrial, maritime, fluvial and lacustrine—
to which must be added three new ones—aerial, polar and floating
(floating islands). The violation of these rights is not of equal
gravity in all these different spheres.

Some jurists have proposed to abolish the notion of the sover-
eignty of States, considering it obsolete. That is an error. This
notion has its foundation in national sentiment and in the psycho-
logy of the peoples, in fact it is very deeply rooted. The constituent
instrument of the International Organization has especially
recognized the sovereignty of States and has endeavoured to bring
it into harmony with the objects of that Organization (No. I of
Art. 2).

This notion has evolved, and we must now adopt a conception
of it which will be in harmony with the new conditions of social
life. We can no longer regard sovereignty as an absolute and
individual right of every State, as used to be done under the old
law founded on the individualist régime, according to which States
were only bound by the rules which they had accepted. To-day,
owing to social interdependence and to the predominance of the
general interest, the States are bound by many rules which have
not been ordered by their will The sovereignty of States has
now become an institution, an international social function of a
psychological character, which has to be exercised in accordance
with the new international law.

VI.

Like sovereignty, the responsibility of States is an ancient con-
ception and holds a very important place in international law. It

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 44

is a delicate matter, and is a constant subject of controversies,
because it is not regulated by any well-established precepts. That
was very evident at the Codification Conference at The Hague
in 1930.

It is therefore necessary that this question of responsibility
should be more closely defined, in its most essential features, and
that it should even be restated.

In undertaking such a restatement, in regard to the matters at
issue in the present dispute, the Court might be guided by the
following considerations, based on the law of social interdependence:

(1) Every State is bound to preserve in its territory such order
as is indispensable for the accomplishment of its international
obligations : for otherwise its responsibility will be involved.

(2) Every State is bound to exercise proper vigilance in its
territory. This vigilance does not extend to uninhabited areas ;
and it is not of the same nature in the terrestrial part of the terri-
tory as in the maritime, aerial or other parts.

This obligation of vigilance varies with the geographical con-
ditions of the countries and with other circumstances: a State
exercises greater vigilance in certain areas than in others, according
to its interests. Moreover, this vigilance depends on the means
available to a given State. In America this question has become
very important : the United States and many of the Latin countries
are unable to exercise effective vigilance over the whole vast extent
of their coasts. As has been very rightly laid down in Article 25
of the Hague Convention XIII of 1907, a Power is not obliged to
exercise greater vigilance than is consistent with the means at its
disposal.

A State which fails to exercise this vigilance, or is negligent in
its exercise, will find its responsibility involved in case of injury
caused in its territory to other States or to their nationals.

(3) As a consequence of the foregoing, every State is considered
as having known, or as having a duty to have known, of prejudicial
acts committed in parts of its territory where local authorities are
installed ; that is not a presumption, nor is it a hypothesis, it is the
consequence of its sovereignty. If the State alleges that it was
unaware of these acts, particularly if they occurred in circumstances
in which vigilance was unavailing—e.g., by the action of sub-
marines, etc.—it must prove that this was the case, for otherwise
its responsibility is involved.

(4) Every State is bound to take preventive measures to fore-
stall the execution in its territory of criminal or prejudicial acts
to the detriment of other States or of their nationals ; and if such
acts are committed it is bound to punish the offenders.

(5) Every State is bound to elucidate immediately the circum-
stances in which a criminal or prejudicial act was committed in its
territory, and in particular to institute enquiries.

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 45

(6) The State is bound to give immediate information to coun-
tries that are concerned regarding the existence in its territory of
dangers, resulting from the action of other States, that have been
brought to its knowledge, and which might cause injury to the
said countries ; if it fails to do so it becomes guilty of complicity.

There are at present in international law three notions of major
importance, which are quite distinct but have points in common
and apt to be confused with one another, as they all relate to
damage suffered by a State generally in the territory of another
State owing to the negligence of the latter, for which compensation
is claimed. These three notions are international delinquencies,
prejudicial acts and unlawful acts.

The characteristics of an tnternational delinquency are that it is
an act contrary to the sentiments of humanity. In consequence
of the demands of the juridical consciousness of the peopies, there
is now a tendency to introduce the notion of delinquency as a
fundamental precept of international law.

The following acts are to be considered as international delin-
quencies :

(a) acts contrary to the sentiments of humanity committed by
a State in its territory, even with the object of defending its security
and its vital interests ; for instance, the laying of submarine mines
without notifying the countries concerned :

(b) acts contrary to the sentiments of” humanity committed
bv a State, and causing damage in the territory of another State
with the latter’s consent. The latter State is considered as an
accomplice ;

(c) acts contrary to the sentiments of humanity committed in
the territory of a State by another country, without the consent
of the first named State but of which that State knew, or had the
duty of knowing, and which resulted in damage to a third State.
Such knowledge does not suffice to constitute a delinquency :
that term would only be applicable if the State had failed to
notify the countries concerned of the act in question.

A prejudicial act is one which causes prejudice to a State or to
its nationals, but which does so by means of acts not constituting
an international delinquency, e.g., as a consequence of an insurrec-
tion, civil war, etc. This act does not involve the responsibility
of the State in whose territory it was committed, unless the latter
State failed to take the necessary action to prevent its execution
or to punish the offenders.

An unlawful act is one which disregards or violates the rights
of a State, or which is contrary to international law, to a treaty,
etc. : e.g., the violation of frontiers, the non-execution of a conven-
tion, etc. The responsibility of the State which committed it
varies according to the nature of the act.

Special attention must be drawn to five categories of unlawful
acts, or acts contrary to international law, which are related to the

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 46

present dispute: intervention, pressure or threat of force, demon-
stration of force, with a view to intimidation, violation of sovereignty,
and misuse of right to which I will return later.

The responsibility of a State may be limited. It may also be
attenuated by certain circumstances, e.g., by the fact that the
State was acting in the general interest, or that it took all proper
precautions to prevent other States or their nationals from suffering
injury in its territory. But in the case of international delinquency
there cannot be extenuating circumstances.

In the preceding examples we see clearly the difference between
the former individualistic law and the new law of social inter-
dependence.

VII.

The passage of the merchant ships or warships of a State through
the territorial waters of another State, or through straits situated
therein and affording communication between two areas of open
sea, is a matter of high importance. We are concerned only
with passage in time of peace, for in regard to passage in war time
there must be special rules adapted to the new juridical status
of war.

In the present dispute, the Parties have admitted, in conformity
with current doctrine, that the passage of the merchant ships of
one State through the territorial waters of another State, including
the waters of straits uniting two portions of open sea, is free. But
the question whether the same rule applied to the passage of
warships was keenly debated: the Albanian Government’s Agent
maintained that the coastal States might regulate the passage of
these ships, a view which was contested by the Agent for the United
Kingdom.

The Atlantic Charter of 1941 laid down the freedom of the seas
and oceans as a fundamental principle. On January ist, 1942, the
united nations signed a Declaration in which they accepted the
principle. Article 3 of the Charter of the United Nations alludes
to that Declaration. Public opinion, also, is favourable to the
freedom of the seas ; it may therefore be said to form part of the
new international law.

Consequently, it may be accepted that, to-day, the passage
through the territorial sea of a State, or through straits situated
therein, and also through straits of an international character, is
not a simple tolerance but is a right possessed by merchant ships
belonging to other States. For these ships are discharging a peace-
ful mission and are contributing to the development of good rela-
tions between peoples.

The position is not the same in the case of warships. As war
has been outlawed henceforward, the mission of these ships can
only be to ensure the legitimate defence of the countries to which

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 47

they belong. Therefore, although they may effect an innocent
passage through straits forming an international highway between
two free seas, in other cases the coastal States are entitled to
regulate the passage, especially with a view to the protection
of their own security or interests, but they are not entitled to
forbid it. .

Warships only enjoy an unrestricted right of passage when they
are engaged in an international mission assigned to them by the
United Nations, as was stated above.

VIII.

In connexion with the passage of the British warships through
the Albanian territorial waters on October 22nd, 1946, and on
November 12-13th of that year, the subjects of intervention, demon-
strations of force with a view to intimidation, violation of sover-
eignty, etc., were debated at some length, and it seemed at times
that these notions were confused with one another.

The intervention of a State in the internal or external affairs of
another—i.e., action taken by a State with a view to compelling
another State to do, or to refrain from doing, certain things—has
long been condemned. It is expressly forbidden by the Charter of
the United Nations. The same applies to other acts of force, and
even to a threat of force.

The Agent for the United Kingdom contended that the mine-
sweeping operation known as ‘‘Retail’’, undertaken by the British
ships in the Corfu Strait, was a justifiable act of self-help. That
is not correct ; the operation was in fact a violation of Albanian
sovereignty.

The Court must reaffirm, as often as the occasion arises, that
intervention and all other kinds of forceable action are not permis-
sible, in any form or on any pretext, in relations between States ;
but the Court may excuse such acts in exceptional circumstances.

IX.

Formerly, the misuse of a right had no place in law. Anyone
could exercise his rights to their fullest extent, even if the effect
was prejudicial to others ; in such cases there was no duty to make
reparation.

That is no longer the case: some civil codes, especially those of
most recent dates, expressly forbid the misuse of right in private
relations. The German Civil Code lays down in Article 226 : ‘The
exercise of a right is forbidden when it can have no other object
than to cause injury to others.’’ And the Swiss Civil Code, in
Article 2 of the preliminary chapter, declares : ‘‘Everyone is bound
to exercise his rights and to discharge his obligations according to

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INDIVIDUAL OPINION BY JUDGE ALVAREZ 48

the rules of good faith. The manifest misuse of a right is not
protected by the law.”

I consider that in virtue of the law of social interdependence this
condemnation of the misuse of a right should be transported into
international law. For in that law the unlimited exercise of a right
by a State, as a consequence of its absolute sovereignty, may
sometimes cause disturbances or even conflicts which are a danger
to peace. Clashes of rights and interests are causes of social unrest
and even of wars.

In this matter there are two questions to be determined : (a) when
is there a misuse of a right ; and (6) what should be the penalty ?
In regard to the former point, the facts must be evaluated in any
given case ; and in regard to the penalty, this may consist, accord-
ing to the circumstances, of an apology, a rebuke or even compens-
ation for the injury caused.

The misuse of a right—in the same way as responsibility—admits
of extenuating circumstances, for instance, if the misuse of the
right was committed for the general advantage, etc.

(Signed) ALEJANDRO ALVAREZ.

48


145

INDIVIDUAL OPINION OF JUDGE ALVAREZ
[Translation]

I

The United Kingdom has filed with the International Court of
Justice an Application in which it challenges the validity of the
Norwegian Decree of July 12th, 1935, which delimited the Norwe-
gian fishery zones off a part of the Norwegian coast. It considers
that the delimitation so effected is contrary to the precepts of
international law and asks the Court to state the principles of
international law applicable for defining the base-lines by reference
to which the Norwegian Government is entitled to delimit its
fisheries zones.

In the course of the oral proceedings, the United Kingdom
Government submitted certain new conclusions, particularly on
questions of law, and asked the Court to adjudicate upon these
also.

In her Counter-Memorial and Rejoinder, and in her arguments
in Court, Norway contended that the delimitation of these fisheries
zones established in the 1935 Decree was not in conflict with the
precepts of international law and that it corresponded, in any
event, to historic rights long possessed by her and which she
indicated.

The present litigation is of great importance, not only to the
Parties to the case, but also to all other States.

At the beginning of his address to the Court, the Attorney-General
said: “It is common ground that this case is not only a very
important one to the United Kingdom and to Norway, but that
the decision of the Court on it will be of the very greatest
importance to the world generally as a precedent, since the Court’s
decision in this case must contain important pronouncements
concerning the rules of international law relating to coastal waters.
The fact that so many governments have asked for copies of our
Pleadings in this case is evidence that this is the general view.”

II

In considering the present case, I propose to follow a method
different from that which is customarily adopted, particularly with
regard to the law. It consists of bringing to light and retaining the
principal facts, then of considering the pointe of law dominating
the whole case and, finally, those which relate to each important
question.

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INDIVIDUAL OPINION OF JUDGE ALVAREZ 146

The application of this method may, at first sight, appear to be
somewhat academic; but it is essentially practical, since it has as
its object the furnishing of direct answers to be given on the
questions submitted to the Court.

Moreover, this method is called for by reason of the double task
which the Court now has: the resolution of cases submitted to it
and the development of the law of nations.

It is commonly stated that the present Court is a continuation
of the former Court and that consequently it must follow the
methods and the jurisprudence of that Court. This is only partly
true, for in the interval which elapsed between the operations of
the Courts, a World War occurred which involved rapid and
profound changes in international life and greatly affected the law
of nations.

These changes have underlined the importance of the Court’s
second function. For it now happens with greater frequency than
formerly that, on a given topic, no applicable precepts are to be
found, or that those which do exist present lacunae or appear to
be obsolete, that is to say, they no longer correspond to the new
conditions of the life of peoples. In all such cases, the Court must
develop the law of nations, that is to say, it must remedy its short-
comings, adapt existing principles to these new conditions and,
even if no principles exist, create principles in conformity with such
conditions. The Court has already very successfully undertaken
the creation of law in a case which will remain famous in the annals
of international law (Advisory Opinion of April 11th, 1949, on
“Reparation for injuries suffered in the service of the United
Nations’). The Court, in this case, can effectively discharge the
same task.

The adaptation of the law of nations to the new conditions of
international life, which is to-day necessary, is something quite
different from the ‘‘Restatement’’ advocated by Anglo-Saxon
jurists as a means of ending the crisis in international law, which
consists merely of stating the law as it has been established and
applied up to the present, without being too much concerned with
any changes that it may recently have undergone or which it may
undergo in the future.

Ill

I shall not dwell on a detailed examination of the facts alleged
by the Parties nor upon the evidence submitted by the Parties in
support of their contentions, because the Judgment of the Court
deals with them at length. In the following pages I shall concen-
trate only on the questions of law raised by the present case.

For centuries, because of the vastness of the sea and the limited
relations between States, the use of the sea was subject to no
rules ; every State could use it as it pleased.

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INDIVIDUAL OPINION OF JUDGE ALVAREZ 147

From the end of the 18th century, publicists proclaimed, and
the law of nations recognized as necessary for States, the exercise
of sovereign powers by States over an area of the sea bordering
their shores. The extent of this sea area, which was known as the
territorial sea, was first fixed at the range of the contemporary
cannon, and later at 3 sea miles. The question indeed was one for
the domestic law of each country. Several of the countries of Latin
America incorporated provisions relating to this question in their
civil codes.

As the result of the growing importance of the question of the
territorial sea, a World Conference was convened at The Hague in
1930 for the purpose of providing rules governing certain of its
aspects and to deal with two other matters. This Conference, in
which such great hopes had been reposed, did not establish any
precept relating to the territorial sea. It made it clear that no well-
defined rules existed on this subject, that there were merely a
number of conventions between certain States, certain trends and
certain usages and practices.

It was contended at the hearings that a great number of States
at this Conference had accepted the extent of the territorial sea as
being fixed at three sea miles, and had also accepted as established
the means of reckoning this breadth ; and this assertion was chal-
lenged. It is unnecessary to dwell long on this point for, in fact, the
Conference, as has been said, did not adopt any provision on the
question. Moreover, the conditions of international life have con-
siderably changed since that time ; it is therefore probable that the
States which in 1930 accepted a breadth of three sea miles would
not accept it to-day.

IV

What should be the position adopted by the Court, in these
circumstances, to resolve the present dispute ?

The Parties, in their Pleadings and in their Oral Arguments, have
advanced a number of theories, as well as systems, practices and,
indeed, rules which they regarded as constituting international law.
The Court thought that it was necessary to take them into con-
sideration. These arguments, in my opinion, marked the beginning
of a serious distortion of the case.

In accordance with uniformly accepted doctrine, international
judicial tribunals must, in the absence of principles provided by
conventions, or of customary principles on a given question, apply
the general principles of law. This doctrine is expressly confirmed in
Article 38 of the Statute of the Court.

It should be observed in this connection that international
arbitration is now entering a new phase. It is not enough to stress
the general principles of law recognized by civilized nations ; regard
must also be had, as I have said, to the modifications which these

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INDIVIDUAL OPINION OF JUDGE ALVAREZ 148

principles may have undergone as a result of the great changes
which have occurred in international life, and the principles must
be adapted to the new conditions of international life ; indeed, if no
principles exist “covering a given question, principles must be
created to conform to those conditions.

The taking into consideration of these general principles, and
their adaptation, are all the more necessary in the present case,
since the United Kingdom has asked the Court to declare that the
Norwegian Decree of 1935 is contrary to the principles of inter-
national law now in force.

V

What are the principles of international law which the Court must
have recourse to and, if necessary, adapt ? And what are the prin-
ciples which it must in reality create ?

It should, in the first place, be observed that frequent reference
is made to the principles of the law of nations, in conventions and in
certain of the Judgments of the Permanent Court of International
Justice, but it is not said what those principles are nor where they
may be found.

Some clarification is therefore necessary on this point.

In the first place, many of the principles, particularly the great
principles, have their origin in the legal conscience of peoples (the
psychological factor). This conscience results from social and
international life ; the requirements of this social and international
life naturally give rise to certain norms considered necessary to
govern the conduct of States inter se.

Asa result of the present dynamic character of the life of peoples,
the principles of the law of nations are continually being created,
and they undergo more or less rapid modification as a result of
the great changes occurring in that life.

For the principles of law resulting from the juridical conscience
of peoples to have any value, they must have a tangible manifesta-
tion, that is to say, they must be expressed by authorized bodies.

Up to the present, this juridical conscience of peoples has been
reflected in conventions, customs and the opinions of qualified
jurists.

But profound changes have occurred in this connection. Conven-
tions continue to be a very important form for the expression of the
juridical conscience of peoples, but they generally lay down only
new principles, as was the case with the Convention on genocide.
On the other hand, customs tend to disappear as the result of the
rapid changes of modern international life ; and a new case strongly
stated may be sufficient to render obsolete an ancient custom.
Customary law, to which such frequent reference is made in the

36
INDIVIDUAL OPINION OF JUDGE ALVAREZ 140

course of the arguments, should therefore be accepted only with
prudence.

The further means by which the juridical conscience of peoples
may be expressed at the present time are the resolutions of diplo-
matic assemblies, particularly those of the United Nations and
especially the decisions of the International Court of Justice.
Reference must also be made to the recent legislation of certain
countries, the resolutions of the great associations devoted to the
study of the law of nations, the works of the Codification Commis-
sion set up by the United Nations, and finally, the opinions of
qualified jurists.

These are the new elements on which the new international
law, still in the process of formation, will be founded. This law will,
consequently, have a character entirely different from that of
traditional or classical international law, which has prevailed to the
present time.

VI

Let us now consider the elements by means of which the general
principles brought to light are to be adapted to the existing
conditions of international life and by means of which new prin-
ciples are, if necessary, to be created.

The starting point is the fact that, for the traditional indivi-
dualistic régime on which social life has hitherto been founded,
there is being substituted more and more a new régime, a régime
of interdependence, and that, consequently, the law of social inter-
dependence is taking the place of the old individualistic law.

The characteristics of this law, so far as international law is
concerned, may be stated as follows:

(a) This law governs not merely a community of States, but
an organized international soctety.

{b) It is not exclusively juridical; it has also aspects which
are political, economic, social, psychological, etc. It follows that
the traditional distinction between legal and political questions,
and between the domain of law and the domain of politics is
considerably modified at the present time.

(c) It is concerned not only with the delimitation of the nghts
of States but also with harmonizing them.

(ad) It particularly takes into account the general interest.

(e) It also takes into account all possible aspects of every case.

(f) It lays down, besides rights, obligations towards inter-
national society ; and sometimes States are entitled to exercise
certain rights only if they have complied with the correlative
duties. (Title V of the ‘‘Declaration of the Great Principles of
Modern International Law” approved by three great associations
devoted to the study of the law of nations.)

(g) It condemns abus de droit.

37
INDIVIDUAL OPINION OF JUDGE ALVAREZ 150

(h) It adapts itself to the needs of international life and develops
side by side with it.

What are the principles which, in accordance with the foregoing,
the Court must bring to light, adapt if necessary, or even create,
with regard to the maritime domain and, in particular, the
territorial sea ? .

They may be stated as follows :

1. Having regard to the great variety of the geographical and
economic conditions of States, it is not possible to lay down
uniform rules, applicable to all, governing the extent of the
territorial sea and the way in which it is to be reckoned.

2. Each State may therefore determine the extent of its terri-
torial sea and the way in which it is to be reckoned, provided
it does so in a reasonable manner, that it is capable of exercising
supervision over the zone in question and of carrying out the
duties imposed by international law, that it does not infringe
rights acquired by other States, that it does no harm to general
interests and does not constitute an abus de droit.

In fixing the breadth of its territorial sea, the State must
indicate the reasons, geographic, economic, etc., which provide
the justification therefor. -

In the light of this principle, it is no longer necessary to debate
questions of base-lines, straight lines, closing lines of ten sea
miles for bays, etc., as has been done in this case.

Similarly, if a State adopts too great a breadth for its territorial
sea, having regard to its land territory and to the needs of its
population, or if the base-lines which it indicates appear to be
arbitrarily selected, that will constitute an abus de droit.

3. States have certain rights over their territorial sea, particu-
larly rights to the fisheries; but they also have certain duties,
particularly those of exercising supervision off their coasts, of
facilitating navigation by the construction of lighthouses, by the
dredging of certain areas of sea, etc.

4. States may alter the extent of the territorial sea which they
have fixed, provided that they furnish adequate grounds to justify
the change.

5. States may fix a greater or lesser area beyond their territorial
sea over which they may reserve for themselves certain rights :
customs, police rights, etc.

6. The rights indicated above are of great weight if established
by a group of States, and especially by all the States of a continent.

The countries of Latin America have, individually or collectively,
reserved wide areas of their coastal waters for specific purposes :
the maintenance of neutrality, customs’ services, etc., and, lastly,
for the exploitation of the wealth of the continental shelf.

38
INDIVIDUAL OPINION OF JUDGE ALVAREZ I5I

7. Any State directly concerned may raise an objection to
another State’s decision as to the extent of its territorial sea or
of the area beyond it, if it alleges that the conditions set out above
for the determination of these areas have been violated. Disputes
arising out of such objections must be resolved in accordance with
the provisions of the Charter of the United Nations.

8. Similarly, for the great bays and straits, there can be no
uniform rules. The international status of every great bay and
strait must be determined by the coastal States directly concerned,
having regard to the general interest. The position here must be
the same as in the case of the great international rivers: each
case must be subject to its own special rules.

At the Conference held in Barcelona in I92r on navigable
waterways, I maintained that it was impossible to lay down
general and uniform rules for all international rivers, in view of
the great variety of conditions of all sorts obtaining among them ;
and this point of view was accepted.

In short, in the case of maritime and river routes, it is not
possible to contemplate the laying down of uniform rules; the
rules must accord with the realities of international life. In place
of uniformity of rules it is necessary to have variety ; but the
general interest must always be taken into account.

g. A principle which must receive special consideration is that
relating to prescription. This principle, under the name of historic
vights, was discussed at length in the course of the hearings.

The concept of prescription in international law is quite different
from that which it has in domestic law. As a result of the important
part played by force in the formation of States, there is no pre-
scription with regard to their territorial status. The political map
of Europe underwent numerous changes in the course of the 19th
and 2oth centuries ; it is to-day very different from what it was
before the Great War, without any application of the principle
of prescription.

Nevertheless, in some instances, prescription plays a part in
international law and it has certain important features. It is
recognized, in particular, in the case of the acquisition and the
exercise of certain rights.

In support of the effect of prescription in such cases, two very
important learned works should be mentioned, which adopt the
collective opinion of jurists.

The first of these is the “Declaration of the Great Principles of
Modern International Law’’ which provides, in Article 20: ‘‘No
State is entitled to oppose, in its own interests, the making of
rules on a question of general interest.

39
INDIVIDUAL OPINION OF JUDGE ALVAREZ 152

‘When, however, it has exercised special rights for a consider-
able time, account must be taken of this in the making of rules.”

The other learned work is the ‘Draft Rules for the Territorial
Sea in Peacetime’’ adopted by the Institute of International Law
at the 1928 Session in Stockholm. Article 2 of this draft provides :

‘‘The breadth of the territorial sea is 3 sea miles. (It was then
thought that this was sufficient.)

International usage may justify the recognition of a breadth
greater or less than 3 miles.”

For prescription to have effect, it is necessary that the rights
claimed to be based thereon should be well established, that they
should have been uninterruptedly enjoyed and that they should
comply with the conditions set.out in 2 above.

International law does not lay down any specific duration of
time necessary for prescription to have effect. A comparatively
recent usage relating to the territorial sea may be of greater effect
than an ancient usage insufficiently proved.

10. It is also necessary to pay special attention to another
principle which has been much spoken of : the right of States to do
everything which is not expressly forbidden by international law.
This principle, formerly correct, in the days of absolute sovereignty,
is no longer so at the present day: the sovereignty of States is
henceforth limited not only by the rights of other States but also
by other factors previously indicated, which make up what is
called the new international law : the Charter of the United Nations,
resolutions passed by the Assembly of the United Nations, the
duties of States, the general interests of international society and
lastly the prohibition of abus de droit.

11. Any State alleging a principle of international law must
prove its existence; and one claiming that a principle of inter-
national law has been abrogated or has become ineffective and
requires to be renewed, must likewise provide proof of this claim.

12. Agreement between the Parties as to the existence of a
principle of law, or as to its application, for instance, as to the
way in which base-lines determining the extent of the territorial
sea are to be selected, etc., cannot have any influence upon the
decision of the Court on the question.

13. International law takes precedence over municipal law. Acts
committed by a State which violate international law involve the
responsibility of that State.

14. A State is not obliged to protest against a violation of inter-
national law, unless it is aware or ought to be aware of this
violation ; but only the State directly concerned is entitled to refer
the matter to the appropriate international body. (Article 39 of

40
INDIVIDUAL OPINION OF JUDGE ALVAREZ 153

the “Declaration of the Great Principles of Modern International
Law”.)

VII

In accordance with the considerations set out above, I come
to the following conclusions upon the questions submitted to the
Court :

(1) Norway—like all other States—is entitled, in accordance
with the general principles of the law of nations now in existence,
to determine not only the breadth of her territorial sea, but also
the manner in which it is to be reckoned.

(2) The Norwegian Decree of 1935, which delimited the Nor-
wegian territorial sea, is not contrary to any express provisions
of international law. Nor is it contrary to the general principles
of international law, because the delimitation is reasonable, it
does not infringe rights acquired by other States, it does no harm
to general interests and does not constitute an abus de droit.

In enacting the Decree of 1935, Norway had in view simply
the needs of the population of the areas in question.

(3) In view of the foregoing, it is unnecessary to consider whether
or not Norway acquired by prescription a right to lay down a
breadth of more than three sea miles for her territorial sea and the
way in which its base-lines should be selected.

(4) If Norway is entitled to fix the extent of her territorial
sea, as has been said, it is clear that she can prohibit other States
from fishing within the limits of that sea without their being
entitled to complain of a violation of their rights.

(5) The answer to the contentions of the Parties with regard
to the existence of certain precepts of the law of nations which
they consider to be in force at the present time has been given in
the preceding pages.

(Signed) A, ALVAREZ.

41


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN v. INDIA)

ORDER OF 29 SEPTEMBER 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU PROCÈS DE
PRISONNIERS DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

ORDONNANCE DU 29 SEPTEMBRE 1973
Official citation:

Trial of Pakistani Prisoners of War,
Order of 29 September 1973, I.C.J. Reports 1973, p. 344.

Mode officiel de citation:

Procès de prisonniers de guerre pakistanais,
ordonnance du 29 septembre 1973, C.I.J. Recueil 1973, p. 344.

No de ventes OOD

29 SEPTEMBER 1973
ORDER

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN ». INDIA)

AFFAIRE RELATIVE AU PROCES DE PRISONNIERS
DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

29 SEPTEMBRE 1973
ORDONNANCE
344

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1973

29 septembre 1973

AFFAIRE RELATIVE AU PROCÈS DE

PRISONNIERS DE GUERRE PAKISTANAIS
(PAKISTAN c. INDE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et l’article 40 du Règlement de la
Cour,

Vu Pordonnance du 13 juillet 1973 par laquelle la Cour a notamment
fixé au 1°" octobre 1973 la date d’expiration du délai pour le dépôt du
mémoire du Gouvernement pakistanais et au 15 décembre 1973 celle de
expiration du délai pour le dépôt du contre-mémoire du Gouvernement
indien sur la question de la compétence de la Cour pour connaître du
différend,

Considérant que, par lettre du 24 septembre 1973, reçue au Greffe le
même jour, l’agent du Pakistan a, pour les raisons par lui exposées,
demandé que la date d’expiration du délai pour le dépôt du mémoire soit
reportée au 15 décembre 1973;

Considérant que copie de cette communication a été transmise immé-
diatement au Gouvernement indien, qui a été invité à faire connaître son
opinion à la Cour le 28 septembre 1973 au plus tard;

Considérant qu'aucune observation n’a été reçue du Gouvernement
indien:

Reporte au 15 décembre 1973 la date d’expiration du délai pour le
dépôt du mémoire du Gouvernement pakistanais;

Reporte au 17 mai 1974 la date d’expiration du délai pour le dépôt du
contre-mémoire du Gouvernement indien ;

4

1973
29 septembre
Rôle général
n° 60
PRISONNIERS DE GUERRE PAKISTANAIS (ORDONN. 29 IX 73) 345
Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au palais de
la Paix, à La Haye, le vingt-neuf septembre mil neuf cent soixante-
treize, en trois exemplaires, dont l’un restera déposé aux archives de la
Cour et dont les autres seront transmis respectivement au Gouvernement
pakistanais et au Gouvernement indien.

Le Président,
(Signé) Manfred LACHS.

Le Greffier,
(Signé) S. AQUARONE.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
CONTINENTAL SHELF

(LIBYAN ARAB JAMAHIRIYA/MALTA)

ORDER OF 26 APRIL 1983

1983

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
(JAMAHIRIYA ARABE LIBYENNE/MALTE)

ORDONNANCE DU 26 AVRIL 1983
Official citation :

Continental Shelf (Libyan Arab Jamahiriya/ Malta),
Order of 26 April 1983, I.C.J. Reports 1983, p. 3.

Mode officiel de citation :

Plateau continental (Jamahiriya arabe libyenne/ Malte),
ordonnance du 26 avril 1983, C.IJ. Recueil 1983, p. 3.

Na ne: 495

INTERNATIONAL COURT OF JUSTICE

1983 . YEAR 1983
26 April
General List
No. 68 26 April 1983

CASE CONCERNING THE CONTINENTAL SHELF

(LIBYAN ARAB JAMAHIRIYA/MALTA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Articles 44
and 46 of the Rules of Court,

Having regard to the Special Agreement concluded on 23 May 1976
between the Socialist People’s Libyan Arab Jamahiriya and the Republic
of Malta, concerning the continental shelf, notified to the Court on
26 July 1982,

Having regard to the Order of 27 July 1982 fixing 26 April 1983 as the
time-limit for the filing of the Memorial of each Party ;

Whereas the Memorial of the Libyan Arab Jamahiriya and the Me-
morial of the Republic of Malta were each filed within the said time-
limit ;

Whereas Article I, paragraph 2, of the Special Agreement of 23 May
1976 provides (inter alia) for the subsequent pleadings to be submitted to
the Court and exchanged within four months after the filing of the Me-
morials :

Whereas at a meeting with the President of the Court on 26 April 1983
the Agent of each of the two Parties informed him that, notwithstanding
the time-limit laid down in the Special Agreement, it was the desire of both
Parties that the time-limit for the filing of the Counter-Memorials should
be six months after the filing of the Memorials ;

Fixes 26 October 1983 as the time-limit for the filing of Counter-Me-
morials by the Socialist People’s Libyan Arab Jamahiriya and the Republic
of Malta ;

Reserves the subsequent procedure for further decision.
4 CONTINENTAL SHELF (ORDER 26 IV 83)

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-sixth day of April one thou-
sand nine hundred and eighty-three, in three copies, one of which will be
placed in the archives of the Court, and the others transmitted to the
Government of the Socialist People’s Libyan Arab Jamahiriya and the
Government of the Republic of Malta respectively.

(Signed) T. O. ELIAS,
President.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.