1 Kunz, J. L., “Natural-Law Thinking in the Modern Science of International Law,” 55 A.J.I.L. 951 at 952 (1961)Google Scholar.

2 Ibid.; Brierly, J. L., The Law of Nations 38 (5th ed., Oxford, 1955)Google Scholar.

3 Cf. Nussbaum, A., A Concise History of the Law of Nations 156 et seq. (rev. ed., New York, 1954)Google Scholar.

4 1 Lauterpacht-Oppenheim, , International Law 98 (8th ed., London, 1955)Google Scholar.

5 E. de Vattel, Le Droit des Gens, Book II, Ch. 24 et seq. (p. 121 et seq.) (ed. 1758, C. G. Fenwick, trans., Washington, 1916); C. Wolff, Jus Gentium Methodo Scientifica Pertractatum, Ch. 1, § 58 (p. 37) (ed. 1764, J. H. Drake, trans., Oxford, 1934).

6 Kunz, loc. cit.; Brierly, op. cit.

7 Cf. Le Fur, L., “Le Droit Naturel ou Objectif s’Etend-il aux Rapports Internationaux?”, 6 Rev. de Droit Int. et de Leg. Comp. 59 at 67 (3e sér., 1925)Google Scholar.

8 As in W. Burckhardt, “La Clausula Bebus Sic Stantibus en Droit International,” 14 ibid. 5 at 29 (1933); J. L. Brierly, op. cit. 262–264.

9 See Ténékridés, C. G., “Le Principe Rebus Sic Stantibus—Ses Limites Rationnelles et Sa Récente Evolution,” 41 Rev. Gén. de Droit Int. Pub. 273, esp. 280 (1934)Google Scholar.

10 D. Hume, The Treatise of Human Nature, Book I, Part III, § 3, reprinted in C. W. Hendel (ed.), Hume Selections 28 ff. (New York, 1955).

11 Cf. Verdross, A., “Les Principes Généraux du Droit Applicables aux Rapports Internationaux,” 45 Rev. Gén. de Droit Int. Pub. 44 at 45 (1938)Google Scholar.

12 Art. 38(1) of the Statute of the I.C.J., which is taken in substance from Art. 38 of the Statute of the old P.C.I.J., provides that the Court, “whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

“a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

“b. international custom, as evidence of a general practice accepted as law;

“c. the general principles of law recognized by civilized nations;

“d. subject to the provisions of Article 59 [which relates to the precedent value of Court decisions], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” (Emphasis supplied.)

With the decisions and teachings reduced to the place of a “subsidiary means for the determination of rules of law,” it is difficult to see much scope for the Court to apply rules of international law other than those somehow accepted by states. Although there has been some doubt as to the extent to which the phrase “general principles of law” means “natural law,” it is believed that the reference to principles of municipal law really represents a reference to a form of state practice which, to a “positivist,” would merely indicate an “implied acceptance” by all members of the international community of general principles recognized by those members in their own juridical systems. See H. W. Briggs, The Law of Nations 48 (2nd ed., New York, 1952).

13 See, e.g., Politis, N., “Les Transformations du Droit International,” 1 Revue de Droit International 57 at 64 (1927)Google Scholar.

14 Note 12 above.

15 The formulation in the Statute of the P.C.I.J. said: “The Court shall apply:-

“1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

“ 2. International custom, as evidence of a general practice accepted as law;

“ 3. The general principles of law recognized by civilised nations;

“4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

“This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”

The final paragraph of this article is repeated verbatim in the Statute of the present Court. Since agreement of the parties is necessary before the Court can decide a ease ex aequo et bono, it is believed that this provision cannot be read to derogate from the basically “positivist” definition of international law which the two Statutes set out. Furthermore, it seems clear that the power of the Court to decide cases ex aequo et bono was distinguished from the power of the Court to apply international law; the two bases of decision should therefore not be confused.

It is not proposed at this time to trace further the development of the modern definition of international law.

16 Compare, e.g., Wolff, K., “Les Principes Généraux du Droit Applicables dans les Rapports Internationaux,” 36 Hague Academy Becueil des Cours 483, esp. 494 (1931)Google Scholar; and Politis, N., “Le Problème des Limitations de la Souveraineté et la Théorie de l’Abus des Droits,” 6 ibid. 5, esp. 111 (1925)Google Scholar.