PULP MILLS SUMMARY – SEPARATE OPINION (JUDGE TRINDADE)

Purpose for the separate opinion:

Position of Judge Trindade:

Prologue (Paragraphs 1-7):

 The ICJ proceeds in such a way that discloses, to a careful observer, its own conception of the
law - not restrained or bound by their (parties) arguments: it is entirely free to proceed to its
own determination of the facts and to its own identification of the applicable law - in the faithful
exercise of its function.
 JCT believes that there are distinct ways on developing a legal reasoning, and that he his natural
inclination is to dwell to a greater extent on legal principles than on chemical substances, unlike
what the court has done in Argentina v. Uruguay
 In the examination of the substantive obligations under the 1975 Statute of the River Uruguay,
the Court proceeded, with diligence and zeal, to a long and necessary examination of the impact
of the discharges on the quality of the waters of the River Uruguay
 However, he believes that that diligence and zeal seem to have vanished in respect of general
principles of law (comprising those of International Environmental Law), only mentioned in
passim, and without elaboration, in a few paragraphs of the present Judgment.
 Thus, he feels obliged to write this separate opinion in the hope that the Court will be more
sensitive to legal principles in its future decisions
 Even if the contending parties had not invoked general principles of law before the ICJ, this
latter is entirely free to dwell upon them motu proprio, however, in the present case of the Pulp
Mills, both Parties, Argentina and Uruguay, did invoke those principles ; yet, the Court referred
not to dwell upon them.
 Issue: whether an international tribunal like the ICJ can or should have recourse to principles of
environmental law, under Article 38 (1) (c) of its Statute.
 Other issues:
o (a) whether the reference to “general principles of law” found in Article 38 (1) (c) of the
ICJ Statute refers only to those principles found in foro domestico or encompasses
likewise those principles identified also at international law level ; and
o (b) whether these latter are only those of general international law or whether they
comprise also those principles which are proper to a domain of international law.
 Related aspects beyond the inter-State dimension, which the facts of the present case of Pulp
Mills mentions, namely: the imperatives of human health and well-being of peoples, the role of
civil society in environmental protection; obligations of an objective character, beyond
reciprocity ; and the legal personality of the Administrative Commission of the River Uruguay
(CARU)
THE LEGISLATIVE HISTORY OF THE PCIJ/ICJ STATUTE (Par 8-16)

 One of the most debated issues within the Advisory Committee of Jurists entrusted with the
drafting of the Statute of the old Permanent Court of International Justice (PCIJ) pertained to
the meaning to be ascribed to, and the material content of, the general principles of law as a
(formal) “source” of international law.
 President Edward Descamps included in the list of (four) sources “the rules of international law
as recognised by the legal conscience of civilised nations” in his proposal
 This proposal found fierce opposition on the part of Elihu Root, to whom principles of justice
varied from country to country
 President Descamps replied that this might only be “partly true as to certain rules of secondary
importance”; however, he added, “it is no longer true when it concerns the fundamental law of
justice and injustice deeply engraved on the heart of every human being and which is given its
highest and most authoritative expression in the legal conscience of civilised nations”
 Albert de Lapradelle, likewise, opposed Elihu Root’s positivist position that judges could only
decide in accordance with “recognised rules” and that in their absence they “should pronounce
a non-liquet” (latin: it is not clear). He regarded this view as “inadmissible”, further stating that
“[t]he competence of arbitrators might be limited, but not that of the judges”
 Lord Phillimore pondered that “[g]enerally speaking, all the principles of common law are
applicable to international affairs. They are in fact part of international law.
 George Francis Hagerup added that judges should issue their decision according to “rules of
law”, and should “not declare that it is impossible for them to decide because of the absence of
rules. There must be no possibility of a denial of justice.”
 President Edward Descamps also opposed the possibility of non liquet, asserting that, if neither
conventional law nor custom existed, the judge ought then to apply general principles of law.
(jusnaturalist position of “objective justice”)
 Lord Phillimore expressed his own view that general principles were those accepted by all
nations in foro domestic (domestic court/domestic level)
 The original proposal (supra) was amended, and, as submitted by Elihu Root, included in the list
of (four) sources “the general principles of law recognised by civilised nations”
 It was clearly a solution of compromise by the Advisory Committee of Jurists, between the
supporters of the jusnaturalist and the positivist outlooks of the matter, led by President Edward
Descamps and Elihu Root, respectively.
 This phraseology was provisionally adopted, to form the basis of what would shortly afterwards
become Article 38 (3) of the Statute of the PCIJ, later ICJ (new Article 38 (1) (c)).
 Descamps: “that it is impossible to disregard a fundamental principle of justice in the application
of law, [where it] indicates certain rules, necessary for the system of international relations, and
applicable to the various circumstances arising in international affairs”
 Raul Fernandes likewise supported the inclusion, into the part of the draft under discussion, of
an express reference to general principles of law, so as to satisfy a need of the judge in order to
decide a case. “because the principles are always based on justice, while strict law often departs
from it”
 Rules emanating from principles are “not established either by convention or custom”, and the
draft under consideration would, in the opinion of Raul Fernandes, much gain “in giving to the
 Court of Justice the power to base its sentences — in the absence of any convention or
customary law — on [the] principles of international law. . .”
 Albert de Lapradelle commented that the inclusion of the reference to “general principles of
law” was sufficient, and did not need the requirement of having to be recognized by “civilised
nations”; he deemed this to be “superfluous, because law implies civilisation”. His colleagues,
however, missed his point, and the deletion of that requirement was not made.

GENERAL PRINCIPLES OF LAW AS A FORMAL “SOURCE” OF INTERNATIONAL LAW: THEIR

 The mens legis of the expression “general principles of law” clearly indicates that those
principles constitute a (formal) “source” of international law, on their own, not necessarily
to be subsumed under custom or treaties.
 A general principle of law is quite distinct from a rule of customary international law or a
norm of conventional international law.
 A principle is not the same as a norm or a rule ; these latter are inspired in the former, and
abide by them.
 A principle is not the same as a custom or a conventional norm.
 General principles would still be there, at the origins and foundations of any legal system; in
my perception, there cannot be any legal system without them. They cannot be overlooked
by the ICJ.
 General principles of law stand as a category of their own, conceptually distinct from
customary or conventional international law, in the list of “formal” sources under Article 38
of the ICJ Statute.
 General principles of law stand on their own, as one of the (formal) “sources” of
international law (endowed with autonomy), that the judge can resort to, bearing in mind
the circumstances of the case at issue.
 In the drafting of the PCIJ (and ICJ) Statute, those principles were not equated with custom
or treaties, they were identified as a separate and additional category, as one of the
“formal” sources of international law.

CASE LAW (par 20-25)

 the Hague Court [PCIJ and ICJ] has, in the judicial settlement of the cases brought before its
attention, often resorted to general principles of law.
 It has taken the expression to cover general principles of international law as well.
 As for the ICJ, it has likewise applied general principles of law in the same understanding, i.e., as
comprising principles recognized both in foro domestico (and transposed into international
level) and in international law itself.
 General principles of law applied by the ICJ have encompassed those of both substantive and
procedural law.
 In 2004 the ICJ proceeded to identify the “principles of international law” that were relevant to
tackle the issue submitted to its cognizance by the United Nations General Assembly
GENERAL PRINCIPLES OF DOMESTIC AND INTERNATIONAL LAW

1. Legislative History of the PCIJ (and ICJ) Statute (par 26-28)

 When Article 38 of the Statute of the Hague Court was adopted, there were, within the Advisory
Committee of Jurists, two outlooks.
o first pursued the identification of those principles as recognized in foro domestico (Elihu
Root, Lord Phillimore)
o the other pursued the identification of the principles of international law (Edward
Descamps, Raul Fernandes).
 The first attitude can be understood (not necessarily accepted) in view of the fact that it was at
domestic law level that general principles of law (and mainly of procedural law) first found
expression, in historical perspective
 According to JCT: there is epistemologically no reason not to have recourse to general principles
of law as recognized in domestic as well as international law
 In contemporary international law, general principles of law find concrete expression not only in
foro domestico, but also at international level. There can be no legal system without them.
Always keeping their autonomy, they may find expression in other formal “sources” or
manifestations of international law (and not only treaties and custom), even though not listed in
Article 38 (1) (c) of the ICJ Statute, but nonetheless resorted to by the ICJ in practice.

2. Relevant Doctrinal Developments on General Principles of Law

 In his study of the case law of the old PCIJ on the sources of international law, for example, Max
Sørensen, while subscribing to the then prevailing view that general principles of law were those
crystallized in foro domestic, did not fail to point out that, however, already at that time, there
were jurists (like Jules Basdevant and Frede Castberg) who thought differently.
 The minority view of expert writing, already in the twilight of the old PCIJ, was that those
principles allowed the Court to decide also on the basis of the general principles of international
law itself
 In fact, in the minority position, already in 1936, Jules Basdevant, for example, sustained that
“the general principles of law recognized by civilized nations may be sought not only in domestic
law, but also in private or related international law through the use of the comparative method”
 To look for those principles only in foro domestico would hardly be adequate, as not always
would such principles be transposed onto international level without difficulties ; hence the
inescapable need to identity or acknowledge them also at international level itself, though this
was, at that time, still a somewhat “unexplored” exercise
 Frede Castberg, as early as in 1933, in assessing the work of the Advisory Committee of Jurists
which drafted in 1920 the Statute of the PCIJ (cf. supra), challenged the promptly prevailing view
that — in the line of a remark by Lord Phillimore — general principles of law were those applied
in foro domestico. “It would be far too unreasonable to allow the Court to seek the rules to be
applied in its decisions from among the general principles in any field of domestic law, without
allowing it to rule in accordance with the general principles of international law. There is no
 reasonable ground to assume that, of all the general principles of law, it is precisely those of
international law that are precluded from providing the basis for decisions of the Permanent
Court of International Justice. It is true that general principles of domestic law are indeed
applicable also in relations between States.
 Alfred Verdross pondered that, in approaching the “sources” of international law, there are
ultimately two basic opposing conceptions:
o one, which starts from the “idée du droit” (upholds that the “idée du droit”, emanating
from human conscience, paves the way for a universal jus gentium)
o the other, which privileges consent or the will ; found in (philosophical) positivism
 This approach (jusnaturalist), starting from the idea of an “objective justice”, sustains the
autonomy of principles, thus opposing the typical positivist outlook, which insists that they
ought to be manifested through treaties or custom.
 General principles of law, as set forth in Article 38 (3) of the Statute of the PCIJ, are thus an
autonomous “source” of international law, and can be applied concomitantly with treaties and
custom, and be resorted to in order to interpret provisions of treaties and rules of customary
law.
 Charles Rousseau expressed his view that the concept of “general principles of law” is not
limited only to those of domestic law, but comprises likewise the general principles of
international law. He insisted that the concept encompasses “the principles universally accepted
in domestic law and the general principles of the international legal order”, thus “clearly
including both international law and domestic law”
 General principles of law, thus understood — he proceeded — are an autonomous “source” of
international law, distinct from customary rules and conventional norms.
 He further pointed out that, already at that time, expert writing seemed divided on the matter:
“positivist writers, who believe that international law is of an exclusively voluntarist nature,
have naturally sought to downplay the role of general principles of law”
 Those who opposed the positivist dogma ascribed greater importance to general principles of
law, “deriving directly from objective law”
 Alejandro Alvarez, who, in an exposé de motifs of a proposed declaration of principles of
international law, published on the eve of the outbreak of the Second World War, called for a
reconstruction of international law bearing in mind not only positive law, but also the principles,
which oriented legal norms and rules, and which, in his view, prevailed in the whole of
international law, and appeared as “manifestations of the juridical conscience of the peoples”

(b) In the ICJ times (par 37-47)

 JCT argues that more attention was devoted to the principles of international law some decades
ago (including the times of the PCIJ) than in our days. Yet, those principles retain their utmost
importance, as they inform of and conform to the legal norms of any legal system.
 In the past, successive doctrinal works were dedicated particularly to the study of the principles
of international law, in the framework of the foundations of the discipline and the consideration
of the validity of its norms.
 Subsequently, except for a few works, there appeared to occur, rather surprisingly, a decline in
the interest in the study of the matter, parallel to the dissemination of a seemingly — and
regrettably — pragmatic approach to the study of international law.
 Although concern with the need to consider the principles of international law appears to have
declined in the last quarter of century, those principles have, nevertheless, always marked their
presence in the doctrine of international law, including the contemporary one
 Principles of international law permeate the entire international legal system, playing an
important role in international law-making as well as in the application of international law.
o In some cases (such as, e.g., in the Law of Outer Space), they have paved the way for the
construction of a new corpus juris, in a new domain of international law which required
regulation, and the principles originally proclaimed have fully retained their value to
date
 Principles of international law are guiding principles of general content, and, in that, they differ
from the norms or rules of positive international law, and transcend them.
 As basic pillars of the international legal system (as of any legal system), those principles give
expression to the idée de droit, and furthermore to the idée de justice, reflecting the conscience
of the international community
 those principles stand ineluctably at a superior level than the norms or rules of positive
international law.
 Such norms or rules are binding, but it is the principles which guide them. Without these latter,
rules or techniques could serve whatever purposes.
 UN Era: Attentive to the sole change (proposed by Chile) introduced into Article 38 (1) (c) of the
new ICJ Statute in 1945 (supra), to the effect that the ICJ has the function “to decide in
accordance with international law such disputes as are submitted to it”, G. Tunkin contended
that that amendment clarified that general principles of law comprised those principles
common to national legal systems and to international law: they are legal postulates followed
“in national legal systems and in international law”, and resorted to in the process of
interpretation and application of pertinent rules in concrete cases
 Hildebrando Accioly stressed the “pre-eminent character” of general principles of law, at
domestic and international levels, emanating directly from natural law, and rendering concrete
the norms and rules of positive law, in conformity with them
 C. Wilfred Jenks expressed his belief that an inquiry into the general principles of law (found in
distinct legal systems, and further encompassing the principles of international law itself) could
much contribute to provide the “basic foundations of a universal system of international law”
 Antoine Favre sustained, in 1968, that general principles of law are “the expression of the idea
of justice”, having a universal scope and expressing the “juridical conscience of humankind”;
rather than deriving from the “will” of States, they have an “objective character” and constitute
a “fonds juridique commun pour l’ensemble des états” (common legal fund for all states) thus
securing the unity of law and enhancing the idea of justice to the benefit of the international
community as a whole.
 It is in the light of those principles that the whole corpus of the droit des gens is to be
interpreted and applied.
 Hermann Mosler observed that general principles of law have their origins either in national
legal systems or at the level of international legal relations, being consubstantial with jus
gentium, and applied to relations among States as well as relations among individuals.
 those principles, endowed with autonomy and conforming to the jus gentium, do not emanate
from positive law-making, but rather by their awareness which gives them expression: those
 principles are ethical “commandments” emanating from the “conscience of mankind”, which
considers them “indispensable for the co-existence of man in organized society”
 The sustained validity of the principles of international law has been upheld in the evolving law
of the United Nations.
 As proclaimed in the United Nations Charter (Article 2) in 1945, and restated in the 1970 United
Nations Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States, the general principles of international law retain their full and
continuing validity in our days.
 A violation of a norm or rule of international law does not affect the validity of its corpus juris
and its guiding principles.
 the 1970 Declaration of Principles was meant to be a law-declaring resolution as to those basic
principles, so as to serve as a guide for all States in their behaviour.
 While the traditional general principles of law (found in foro domestico) disclosed a rather
procedural character, the general principles of international law — such as the ones proclaimed
in the 1970 Declaration — revealed instead a substantive content (so as to guide State conduct),
proper of the very foundations of international law; such general principles of international law
(as set forth in the 1970 Declaration of Principles) are thus vested with universal importance for
the international community itself
 Principles of international law constitute altogether the pillars of the international legal system
itself.
 As already seen, the Hague Court (PCIJ and ICJ) has often applied general principles of law in its
jurisprudence constante (cf. supra). It has applied them as an autonomous formal “source” of
international law. Yet, the Hague Court, always so sober in applying them, has apparently not
felt it necessary to dwell further upon them, or to stress their utmost importance; in its present
Judgment in the Pulp Mills case, it has not even asserted or endorsed the general principles of
International Environmental Law (such as those of prevention and of precaution).
 It is indeed significant — and it should not pass unnoticed — that Uruguay and Argentina,
concurring in their invocation of general principles of law, were both being faithful to the
longstanding tradition of Latin American international legal thinking, which has always been
particularly attentive and devoted to general principles of law, in the contexts of both the
formal “sources” of international law as well of codification of international law
 Even those who confess to reason still in an inter-State dimension, concede that general
principles of law, in the light of natural law (preceding historically positive law), touch on the
origins and foundations of international law, guide the interpretation and application of its rules,
and point towards its universal dimension; those principles being of a general character, there is
no sharp demarcation line between those recognized in domestic law (in foro domestico) and
those of international law proper

“GENERAL PRINCIPLES” OF INTERNATIONAL LAW: SCOPE OF APPLICATION RATIONE MATERIAE (par

 There are, in fact, general principles of law proper to international law in general, and there are
principles of law proper to some domains of international law, such as, inter alia, International
Environmental Law.
 international tribunals are called upon to pronounce on cases, for the settlement of which they
do need to have recourse to general principles of law, including those which are proper to
certain domains of international law
 This has often taken place, particularly in the recent case law of, e.g., the ad hoc International
Criminal Tribunal for the former Yugoslavia (mainly period 1998-2005) and the Inter-American
Court of Human Rights (mainly period 1997-2006).
 It may well happen that an international tribunal of universal scope and vocation, such as the
International Court of Justice, in pronouncing on cases brought into its cognizance, makes
recourse to general principles of law to settle the cases at issue without elaborating further on
such principles.
 JCT: it is perfectly warranted, and necessary, for the ICJ to dwell upon the principles it resorts to,
and to elaborate on them, particularly when such principles play an important role in the
settlement of the disputes at issue, and when these latter pertain to domains of international
law which are undergoing a remarkable process of evolution in time. This is precisely the case of
the present dispute concerning the Pulp Mills, and of the evolving International Environmental
Law in our times, there being no apparent reason for the Court not to elaborate on the
applicable principles.