General Principles as a Source of International Law

Overview

• Article 38 of the ICJ statute lists sources of international law.
• Paragraph 1c refers to "general principles of law recognized by civilized nations."
• This language is outdated and Eurocentric, reflecting the mindset of 1920.

Historical Context

• In 1920, international law was underdeveloped.
• Drafters faced the issue of non-liquid situations where no treaties or customary law existed.
• Courts cannot claim jurisdiction without applicable law.

Concept of General Principles

• Introduced to fill legal gaps when treaties/customs are absent.
• Encourages courts to look at domestic laws common to major legal systems (civil, common, etc.).
• Principles recognized by civilized nations can be considered rules of international law.

The Role of Consent

• Consent forms the foundation of international law.
• No formal consent like treaties, but general principles presume commonality among domestic laws.
• If states desire similar rules, they do not object to treating those as international law principles.

Natural Law vs. Positivism

• General principles transcend narrow definitions of consent.
• Similar rules across nations suggest they reflect essential legal requirements.
• General principles bridge positivism and naturalism.

Challenges with Comparative Law

• Detailed comparative law exercises may be required to define more specific general principles.
• Growing number of states complicates this process.
• Rigorous comparisons could slow judicial procedures.

Subsidiary Nature of General Principles

• General principles are intended to apply in the absence of treaties/customs.
• Development of international law through treaties has reduced reliance on general principles.

Current Usage in International Courts

• Courts often reference "general principles" but may mean customary international law.
• Different terminologies highlight the established nature of customary rules.
• Example: UN Charter Article 2 lists principles that include customary rules.
• 1970 UN Declaration reflects customary international law.

Key Examples of Principles

• Certain fundamental principles (e.g., equal sovereignty, pacta sunt servanda) are axiomatic to international law.
• Such principles also possess a customary character.

Conclusion

• Readings on ICJ cases will illustrate the application of general principles in international law.