General Principles of International Law

This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article discusses the General Principles of International Law and helps understand its functionalities as a source of International Law.

INTRODUCTION

The ‘general principles’ can be regarded either as a descriptive or a prescriptive concept. From the descriptive perspective, they are abstractions from norms, belonging to legal meta-language, helpful in understanding the (international) legal system or parts of it. From the prescriptive perspective, they are norms, belonging to legal language, hopefully facilitating a holistic interpretation of the (international) legal system in a unitary way.

General principles of law are basic rules whose content is very general and speculative, sometimes boiled down to a maxim or a simple concept. As opposed to other types of rules such as enacted law or agreements, general principles of law have not been proposed according to the formal sources of law. Nevertheless, general principles of law are considered to be part of positive law, even if they are only used as additional tools. They account for essential rules for the very functioning of the system and, as such, are incorporated from the legal reasoning of those authorized to take legal decisions in the process of applying the law, notably the judiciary.[1]

The extent of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is unclear and controversial but may include such legal principles that are common to a sizable number of systems of municipal law. In view of the limitations of treaties or custom as sources of international law, Article 38(1) could be looked upon as a directive to the Court to fill any gap within the law and stop a non-liquet (a state of lawlessness) by reference to the general principles.

In previous stages of the development of international law, rules were often drawn from municipal law. In the 19th century, legal positivists dismissed the idea that international law may come from any source that excluded state will or consent but were ready to permit for the appliance of general principles of law, as long as they had in some way been accepted by states as a part of the legal order. Thus Article 38(1)(c), for example, talks about the general principles “recognized” by states. An area that exhibits the promotion of municipal means and methods is the law applied to the association between international officials and their engaging organizations,[2] although as of today the principles are considered as established international law.

The seriousness of general principles has indubitably been lessened by the increased strength of treaty and institutional relations among states. Nonetheless, the concepts of estoppel and equity have been utilized in the settlement of international disputes. For instance, a state that has, by its actions, helped encourage another state to believe in the existence of a particular legal or factual situation, and to rely on that belief, may be estopped from asserting a contrary situation in its dealings.[3] The principle of good faith was said by the ICJ to be “one of the basic principles governing the creation and performance of legal obligations”.[4] Similarly, there have been frequent references to equity.[5] It is by and largely agreed that equity cannot be employed to oust legal rules (that is, operate contra legem).[6] This “equity as law” perception is fortified by references to equitable principles in the text of the United Nations Convention on the Law of the Sea 1982, though this might be little more than an admission as to the existence, and legitimation, of the discretion of the adjudicator.

However, the principles of estoppel and equity in the international context fail to retain all the connotations they do under common law. The reference to the principles as “general” indicate that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to be inclusive of similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.[7]

To understand what the General Principles really entail, it is important to look at the functions as they are perceived by theorists and applied in practice, whether by international judicial adjudication or as they emerge from customary practices in inter-state relations and international interaction. The most ardent proponent of this approach is probably Bin Cheng.

To this writer, there are minimum four functions that “General Principles” fulfil as a source of international law that is also corresponding to the other sources of international law. “General Principles” serve as:

A source of interpretation for conventional and customary international law: “General Principles” have been essentially used to define and expound international law. This interpretive function is the most widely recognized and applied function of “General Principles” and the one that is markedly the most required and helpful, contrary to the employing of “General Principles” as a method to supersede or remedy shortcomings in typical and customary international law. They can be counted upon to establish the rights and duties of States in the contextual, conventional, or customary law. This is specifically the case, for instance, with regard to principles like “good faith” and “equitable performance.” The range at which one can retreat to “General Principles” for interpretative aims has never been officially decided. Accordingly, “General Principles” can validly expand to fill gaps in conventional and customary international law and provide for as a supplementary source thereto.

A means for developing new norms of conventional and customary international law: This particularly is known as the ‘growth function’. Such an approach injects a contemporary element into international law. This arrests the static application of obsolete norms and procedures to what is admittedly a developing legal process devised to compose or regulate the dynamic exigencies and requirements of a community of nations with changing interests and varying goals and purposes. The development of new norms of conventional and customary law needed the existence of “General Principles.” As one author states: “From its legislative inception until the final determination, the law is a ‘continuing process’.”

A supplemental source to conventional and customary international law: Some say this is precisely one of the functions which the framers of article 38 had in mind when they included “General Principles” among the sources of international law. A practical outlook to this function of “General Principles” is that the judge, in the lack of an applicable rule of international law, so as to fill a legal gap, may utilize the principle extracted from the national legal systems which stand for the extensive systems of jurisprudence in the world, or from those systems whose legal traditions more apply to the specific case at hand. Criticism to this function can be made on the assertion that filling gaps in conventional and customary international law by retreating to “General Principles” erects a new law and hence alters the judicial process into a legislative one. In this regard, the general principles must meet what is known in criminal law doctrine as the “principles of legality,” which restrains judicial lawmaking. The predicament with regard to this function is identical to that of the national legal systems in which the judiciary is always on the lookout for the fair footing between strict and progressive legal interpretation.

A modifier of conventional and customary international rules: This is the most controversial of the four functions. It is described as the corrective function. In this context, it would be employed to differentiate or modify provisions of conventional or customary law in favour of a greater good or higher cause. This statement highlights another important concept: the idea that jus cogens is based on the existence of a hierarchy of “General Principles”. Simply stated, in cases where the safeguarding of a fundamental interest is required, peremptory norms shall succeed over positive law. Peremptory norms are those which are said to have the highest place in the hierarchy of principles, and which must be accepted as overriding by the international community. With this status, they have the power to impose revision “in certain conventional and customary prescriptions to maintain the minimum coherence and content demanded of an international public order system”.

Conclusion

In conclusion, the ‘General Principles’ are recognized as a source of International Law in the statute of the International Court of Justice. However, there is little consensus about the processes and methods of identifying, appraising, and applying “General Principles” evidenced through various sources of international law. There is no easy formula that can be employed, but surely an agreed methodology could be recognized. What is needed, perhaps, is a convention to set out “General Principles of International Law,” much as the Vienna Convention on the Law of Treaties codified customary international law and those “General Principles” relating to treaty law.

[1] Marcelo Kohen, Bérénice Schramm, General Principles of Law, last modified on 27 March, 2019, available at <https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0063.xml>

[2] Amerasinghe, C., The Law of the International Civil Service, 2nd rev. ed, vol. 1 (Clarendon Press: Oxford, 1994) at 151–8.

[3] See North Sea Continental Shelf cases, note 6 at 26; Flegenheimer Claim 25 ILR 91; Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Reports 6 at 32–3.

[4] Nuclear Tests Cases (Australia v France; New Zealand v France) [1974] ICJ Reports 253 at 268.

[5] River Meuse Case (Netherlands v Belgium) PCIJ Reports Series A/B No 70 76 at 76 per Judge Hudson.

[6] Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali) (Judgment) [1986] ICJ Reports 554 at 567–8; North Sea Continental Shelf cases, note 6 at 46–50.

[7] International Status of South-West Africa (Advisory Opinion) [1950] ICJ Reports 128 at 148.

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