PUBLIC INTERNATIONAL LAW PROJECT

TOPIC: General Principles Of Law Recognised By Civilised

Nations As A Source of Law

Submitted by: Submitted to:

ADITI VERMA Dr. PUSHPINDER KAUR

Class- [Link] LLB(H) Professor, UILS

Semester: 7th Panjab University

Section: A Chandigarh
Roll No: 187/20

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 ACKNOWLEDGEMENT

I would like to express my gratitude and appreciation to all those who gave me the possibility
to complete this report. Special thanks is due to my supervisor Dr. Pushpinder kaur, whose
help, stimulating suggestions and encouragement helped me in all time of fabrication process
and in writing this report. I also sincerely thanks for the time spent proofreading and correcting
my many mistakes.

Many thanks goes to my parents, who have given their full effort in guiding me in achieving
the goal as well as their encouragement to maintain our progress in track and providing the
materials necessary.

My profound thanks go to all classmates, especially to my friends for spending their time in
helping and giving support whenever I need it in making my project.

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 INTRODUCTION

International law is not rules. It is a normative system. A normative system, however, consists
of norms which interlink and take account of the humanitarian, moral, political and social
purposes of law. "General principles of law recognized by civilized nations" – or more
appropriate: the community of nations or by almost all the states – are a manifestation of
international law. General principle are said to be those general preposition of law from which
concrete rules are derived . They connote the principles which are unwritten and the court
derive them from the specific rules or from the legal system as a whole.

General principles of law are recognized as one of the authoritative sources of international
law, having been codified as a source of international law in the Statute of the International
Court of Justice. It is accepted that the sources of international law are listed in the Article 38(1)
of the Statute of the International Court of Justice, which provides that the Court 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, 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.

Article 38(1)(c) of the International Court of Justice Statute lists general principles of law
recognized by civilized nations (i.e. general principles of fairness and justice which are applied
universally in legal systems around the world) as one of the source of international law. This is
the most difficult source to research because it is documented in such a wide variety of materials
(e.g., state papers, diplomatic correspondence, executive decisions, judicial decisions, etc.)
General principles of law are usually used when no treaty provision or clear rule of customary
law exists. Thus a principle will not be recognized as general principle of law within the

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meaning of Ar-38(1) (c) of the statute unless it is adopted consistently as a solution to specific
problems by various systems of municipal laws.
Professor Hersch Lauterpacht defines "General Principles" as:
[T]hose principles of law, private and public, which contemplation of the legal experience of
civilized nations leads one to regard as obvious maxims of jurisprudence of a general and
fundamental character... a comparison, generalization and synthesis of rules of law in its various
branches-private and public, constitutional, administrative, and procedural--common to various
systems of national law.]

To Bin Cheng, one of the most authoritative scholars on the subject, "General Principles" are
"cardinal principles of the legal system, in the light of which international . . . law is to be
interpreted and applied.'

Professor Schlesinger refers to "General Principles" as "a core of legal ideas which are common
to all civilized legal systems."

This source helps the international law to adapt itself with the changing time & circumstances.
These principles also provide a strong argument for certain solutions, they may even raise
presumptions, but they rarely dictate results in themselves.

The normative force behind general principles appears to be limited of importance for three
different reasons:

Firstly, international courts and tribunals have remained reluctant in their use and reference to
general principles,

Secondly, general principles as such have limited use as independent formulations of

enforceable obligations and have rarely been referred to as a basis for a legal claim, and,

Thirdly, legal scholars have contributed with their criticism to mark general principles a rather
ambiguous source of law.

There are significant differences in the application of general principles by the International
court and Municipal courts. Although general principles are referred but till now there is no
majority judgments based upon a general principle of law. Moreover in international law
general principles perform a gap filling function i.e. the competent court could not be confined

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to make judgments in accordance with Customs & conventions only but it should be designated
to give free rein to law-making activity of courts by applying the general principles of law.
Examples of these general principles of law are good faith, res judicata, Balance of Probability,
Double Jeopardy, the impartiality of judges etc. International tribunals rely on these principles
when they cannot find authority in other sources of international law covering the same point,
neither any parliamentary statute nor any judicial precedents. In such situations Judges Deduce
a rule that will be relevant by analogy from the already existing rules arising out of Justice &
Equity of public policy. One crucial general principle of international law is that of pacta sunt
servanda, or the idea that international agreements are binding.

General principles of law as the source of international law is precisely to remedy the limits of
strictly consensual rules and to allow international law to be a coherent system. Different from
conventional and customary international law, the scope and criteria for identification of
general principles of law ultimately are driven by the systemic needs of international law.

In other words, such “general principles” are essential to addressing the limits of rules
stemming directly from the will of the legislature, i.e. States. They serve a function similar to
that of equity or “judicial legislation” in domestic legal systems. Yet it is the character and
criteria for identification of these general principles that have puzzled international lawyers for
several decades.

FUNCTION OF THE GENERAL PRINCIPLES AS A SOURCE OF LAW:

A general principle of law recognized by Domestic law of large number of states doesn’t
become principle of international law; it becomes international law when it is recognized by
the International Court. When classifying general principles as a supplement to treaty and
custom, they are seen as a category of norms which usually comes after those depending more
immediately on the consent of states.1 This conception implies that courts and tribunals can
have recourse to general principles even though States have not given their express consent.
According to the dissenting opinion of Judge Tanaka in the South West African cases observed

1
I. Brownlie, Principles of International Law, 6th ed. (Oxford: Oxford University Press, 2003), 15
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that general principles extend ‘the concept of the sources of international law beyond the limit
of legal positivism, according to which the States are bound only by their own will'.2

In the absence of general principles, international law would be nothing but the law of consent
and auto-limitation of States. According to Justice Chagla,

"principles of international law can be taken from the Municipal Law if they have received
universal acceptance and are not inconsistent with any rule of International Law".

There are two major ways to legitimize the use of general principles:
Firstly, they can be induced from domestic legal systems which mean general principles are
those which can be derived from a comparison of municipal legal systems.
Secondly, they can be deduced from international legal logic directly. 3 This suggests that
general principles are primarily or as even exclusively principles of international legal logic.
For example, in the Right of Passage over Indian Territory case, Portugal argued that its right
to passage from the coast to certain Portuguese enclaves on Indian territory was supported by
the general principle of ‘rights of way of necessity’. Here the International courts, relied on the
use of general principle, more often than not took resort without reflecting extensively on
domestic law analogies.
Thus been said that general principles are norms recognized by the international community,
whether the norm is derived from municipal law or not. They are norms ‘of general validity
which is manifested not in a single statutory provision, but usually by a group of mutually
interdependent legal rules or their system.’
"General Principles" fulfil as a source of international law that are also complementary to the
other sources of international law. "General Principles" serve as:
(1) A source of interpretation for conventional and customary international law;
(2) A means for developing new norms of conventional and customary international law;
(3) A supplemental source to conventional and customary international law; and,

2
Dissenting opinion, Judge Tanaka, South West African cases (Second Phase) ICJ Reports 1966, 298.
3
AF CHRISTINA VOIGT, (The Role of General Principles in International Law and their Relationship to Treaty
Law) 31 2008 NR. 2/121 pg- 7
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(4) A modifier of conventional and customary international rules.
This classification is neither exhaustive nor necessarily certain enough to delineate with
specificity the parameters of each one of the four identified functions. The reason simply lies
in the very nature of "General Principles," which cannot be so extremely specific and precise
as to afford certainty of the law and at the same time be broad and general enough to allow for
the growth and evolution of international law.
Both the PCIJ and the ICJ have made use of "General Principles" in their decisions. However,
when the two courts have drawn upon "General Principles," their articulations thereof have
been vague. In practice, both the PCIJ and ICJ have been cautious and have often restricted
"General Principles" to a limited role that some would see as a subsidiary function, though
nothing in the drafting history of the two courts' Statutes warrants that interpretation. However,
one cannot rely on the caution of the courts as evidence that they intended to place "General
Principles" in a subsidiary position to other sources of international law. As demonstrated
above, scholars have attempted to articulate the meaning and functions of "General Principles"
in international law, but there has been some disagreement in their positions. Some Soviet
writers suggest that "General Principles" can never play a normative role in international law
because of the divergence between Soviet law and the national law of other States. That position
may not be valid for long, given changing international and national perspectives. According
to Lammers, however, this early Soviet position is untenable. The first sentence of article
38(l)(c) explicitly requires that "the sources of law ... must be considered as sources of
international law, i.e., legal norms regulating the relations between States as subjects of
international law," and the USSR is bound by the Statute. "General Principles" have been used
by the two courts in order to fill gaps or lacunae in conventional and customary international
law. These gaps or lacunae arise where conventions and customs (whether general, particular,
or regional) fail to address particular legal issues in dispute. "General Principles" have also
been employed as a means of interpreting conventions. They are useful for interpreting words
not susceptible to an ordinary or common meaning interpretation, or as a means for ascertaining
the intent of the parties (presumably objectively). In that respect, "General Principles" may
merge with the customary law of treaty interpretation. "General Principles" are also embodied
in customary law if for no other reason than the fact that customary practice may emerge from
or be based on preexisting "principles." Mutatis mutandi, customs, when consistently practiced,
become "principles." Furthermore, unperfected custom and opinio juris not followed by
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practice may evidence a given "principle." Thus, there is an intertwining relationship between
customs and treaties where the latter evidence or are a source of custom. In general, the two
courts have adhered to an apparently more positivistic approach by according conventional and
customary law a presumptive priority in application, except where these conflict with a jus
cogens "principle." But whenever "General Principles" are embodied in conventions and
customs, it is difficult to conceive how they can be of a lesser standing. Nevertheless, these two
sources are presumably given priority standing because they are a more objectively
ascertainable reflection of the will of the States. The two courts have, however, occasionally
strayed from this caution and allowed "General Principles" to serve a "normative function" in
the regulation of State conduct whenever "[the State's] infraction cannot be looked upon as a
mere incident of the proceedings." In that sense, the two courts have overridden the
presumption of freedom of action of States.

NATURE OF GENERAL PRINCIPLES OF LAW

Firstly, the nature of general principles is inherently linked to their generality and abstractness.
Their main function is of ‘filling the gaps’ left open by treaty and custom and the function as a
guide to law makers.
Secondly, they give significant discretion to judges and law makers. General principles are a
source of arguments in situations where other sources fail. Thus, when they are put into practice
and are applied by the judge, principles like the principle of good faith, the rule of law, or
human dignity, provide a means of finding an answer to a legal question where no law or
colliding rules exist.
And lastly, they provide a welcome and necessary means by which courts and tribunals can
construe the law in a dynamic fashion that is responsive to today’s problems.
Some writers regard it as an affirmation of Natural Law concepts, which are deemed to underlie
the system of international law and constitute the method for testing the validity of the positive
(i.e. man-made) rules.4 Subsidiary source or primary source:
The possibility that "General Principles" will be used as a basis to modify conventional and
customary law, and thus become a primary source of international law, challenges the view that
presumptive freedom of any obligation exists where positive law is silent. Two ideas are at the

4
The Common Law of Mankind, London, 1958, p. 169
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heart of this question: first, the distinction between express and tacit agreement of States, and
second, the fact that international law is a permissive rather than a restrictive body of law. It
can be argued that "General Principles" create obligations which have the implicit consent of
States. This argument can be construed from the fact that "General Principles" are an accepted
source of international law and that they are derived from the States' own principles, as
ascertained through the inductive approach. Even if express consent were required, it would be
satisfied by empirical evidence that principles existing in the national legal system are
applicable in international law. On a pragmatic level, invalidating the ability of "General
Principles" to bind without the express consent of States can produce three possible
consequences: (1) denial of justice; (2) a static body of international law; and (3) a judicial
system unable to resolve contentious issues on which there is no positive law, or about which
the positive law is insufficient, unclear, or ambiguous. With regard to the permissive character
of international law, one commentator stated that:

"International law confines the jurisdiction of sovereignties and those rights which are not
specifically ruled out accrue to the nations of the world as a residue of power."

This presumption of freedom of obligation cannot, however, be limitless. If "General

Principles" are considered to be rules from which States may in no case depart, then they are a
valid exception to the doctrine of freedom of obligation beyond accepted normative positive
law because they too derive from positive law. The best evidence that international law has not
only accepted but relied on "General Principles" is the Vienna Convention on the Law of
Treaties, which contains a number of such "principles" in its rules of treaty interpretation.
Although that Convention codifies customary rules of international law, it nonetheless
incorporates such principles as good faith and others as part of customary international law,
even though their origin is found in "General Principles." The choice of which functions
"General Principles" should assume is clearly predicated on whether "General Principles" are
deemed a subsidiary or primary source of international law. If they are a primary source,
"General Principles" may have a binding legal effect superior to that of positive normative rules
of international law. Those who feel the subsidiary role of "General Principles" is more
appropriate justify their position by arguing that treaty provisions and customary international
law are, by nature, a more direct emanation of the will of States and are also often more

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specifically related to the subject matter envisaged by treaty provisions and customary rules
than are "General Principles." Thus, they contend that a priority of conventional and customary
international law should be maintained over "General Principles." Under this view, "General
Principles" are only appropriately resorted to for the purposes of explaining inadequacies in the
positive normative law and can also occasionally fill gaps in these two primary sources.

In contrast, viewing "General Principles" as a co-equal primary source of law would mean that
a court could apply them for the purpose of modifying and superseding conventional and
customary rules. While critics have voiced some apprehension about applying "General
Principles" in this manner, the jurisprudence of international courts and tribunals has not borne
out these concerns. Thus, the question of whether "General Principles" are a binding source of
international law is well established and its hierarchical ranking has simply been left to the
functional need for their application in specific cases.

CASES:
• In the Lotus case5, the PCIJ suggested that article 38(1)(3) requires a rule to be of
universal acceptance when it stated that a "General Principle" "is applied between all
nations belonging to the community of States."An examination of the facts of this case,
however, reveals that the court's finding can be explained by reason of the very principle
which was found to be universal. That principle, territoriality of criminal jurisdiction,
is indeed universal in its recognition and application. Had the facts of the case been
different, the court likely would not have suggested a requirement of universality. This
writer's conclusion is that the court did not intend to posit a test of universality for
"General Principles," but merely ascertained it in this instance.
• In the South West Africa Cases (1966), 6 where Judge Tanaka, in his dissenting
opinion, explained that, "[t]he recognition of a principle by civilized nations ... does not
mean recognition by all civilized nations .... That test was also rejected by the ICJ in
the North Sea Continental Shelf case, where Judge Lachs, in his dissenting opinion,
explained that "[t]he evidence should be sought in the behavior of a great number of
States, possibly the majority of States, in any case the great majority of the interested

5
"Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 16 (Sept. 7).
6
South West Africa Cases (Ethiopia v. S. Afr.; Liberia v. S. Afr.), 1966 I.C.J. 4, 299 (July 18)
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 States." Furthermore, none of the other cases in which "General Principles" were relied
upon required "universality of acceptance."
• Decisions of the ICJ further suggest that the term "civilized nations" in article 38(l)(c)
is not intended to be an added legal element to evidence "General Principles." If that
were the case, such a term would be discriminatory and incompatible with the United
Nations Charter, which recognizes the equality of all Member-States. Judge Ammoun
of the ICJ suggested that article 9 of the ICJ Statute also requires the court to recognize
"as a whole the representation of the main forms of civilization and of the principal
legal systems of the world." The import of that statement is consonant with comparative
legal research technique, which would look to representative States among the world's
major legal systems. Such an inquiry would not seek to identify norms, but rather the
sameness of precepts upon which norms are predicated.
• Chorzow Factory (Claim for Indemnity) 7 decision," which involved the German
government seeking damages for harm sustained by two of its companies caused by
the express acts of the Polish government, the PCIJ again articulated the basis of the
"General Principle" upon which it relied. The court stated that: The essential principle
contained in the actual notion of an illegal act - a principle which seems to be
established by international practice and in particular by decisions of arbitral tribunals
- is that reparation must, as far as possible, wipe out all the consequences of the illegal
act and re-establish the situation which would in all probability, have existed if that act
had not been committed. The court thus affirmed that "it is a principle of international
law, and even a general conception of law, that any breach of an engagement involves
an obligation to make reparation."

• In Barcelona Traction Case8 Issue raised was that whether Belgium was having Locus
Standi to file the case in ICJ or not. The Court found that Belgium lacked jus standi to
exercise diplomatic protection of shareholders in Canadian company with respect to
measures taken against that company in Spain. Court had applied the principle of

7
Chorzow Factory (Ger. v. Pol.) 1928 P.C.I.J. (ser. A) No. 17 (Sept. 13)
8
I.C.J. Rep. (1964).p.6 9 (1876)
Ex. D. 63
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 Estoppel since the locus standi of Belgium was not proved. Court said that for the
reasons of Equity a state in certain case might take up the protection of its national
share-holders in the company which had been the victim of violation of International
law but it would create leniency i.e an atmosphere of insecurity in the international
economic relation.
• In R v Keyn 9 court held that International law is based upon Justice, Equity &
conscience which is accepted by long practice of civilized states.
• In U.K v Albania (1949) court had applied the principle of res judicata.
• In the Furundzija case9 decided by the International Criminal Tribunal for the Former
Yugoslavia (ICTY), in order to find the definition of “rape” based on general principles
of law, the Trial Chamber surveyed criminal laws of 19 jurisdictions, covering civil law
and common law systems, as well as legal systems located in different continents.
However, the comparative survey only revealed the disagreement among different legal
systems on the specific definition. Accordingly, the Trial Chamber found that a general
principle derived from domestic laws cannot be identified, and decided “to establish
whether an appropriate solution can be reached by resorting to the general principles of
international criminal law or, if such principles are of no avail, to the general principles
of international law.”Following that observation, the Trial Chamber applied “[t]he
general principle of respect for human dignity”, which it considered as “the basic
underpinning and indeed the very raison d’eˆtre of international humanitarian law and
human rights law.” On this basis, it reached the conclusion that forced oral penetration
should be classified as rape. The Special Rapporteur has categorized the principle
applied in that case under the rubric of “general principles formed within the
international legal system”

• In the Right of Passage case, Portugal relied on not only general principles derived from
national legal systems, but also “principles inherent in the international legal order” to
support the existence of its right to access the enclave territory. The Portuguese
possessions in India included the two enclaves of Dadra and Nagar-Aveli which, in mid-
1954, had passed under an autonomous local administration. Portugal claimed that it

9
Prosecutor v. Furundzija, Trial Chamber Judgment (10 December 1998), IT-95- 17/1, para.179-180.
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had a right of passage to those enclaves and between one enclave and the other to the
extent necessary for the exercise of its sovereignty and subject to the regulation and
control of India ; it also claimed that, in July 1954, contrary to the practice previously
followed, India had prevented it from exercising that right and that that situation should
be redressed. A first Judgment, delivered on 26 November 1957, related to the
jurisdiction of the Court, which had been challenged by India. The Court rejected four
of the preliminary objections raised by India and joined the other two to the merits. In
a second Judgment, delivered on 12 April 1960, after rejecting the two remaining
preliminary objections, the Court gave its decision on the claims of Portugal, which
India maintained were unfounded. The Court found that Portugal had in 1954 the Right
of passage claimed by it but that such right did not extend to armed forces, armed police,
arms and ammunition, and that India had not acted contrary to the obligations imposed
on it by the existence of that right. The general principle didn't apply.

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 CONCLUSION:

General principles of law are a source whose formation and identification are driven by the
need of international law to be a coherent legal system instead of an aggregate of discrete
consensual rules. This source plays a role similar to equity or judicial law-making in certain
domestic legal systems in addressing problems that cannot be resolved by the direct will of the
legislature. But in international law, due to its structural difference from domestic legal systems,
these general principles must be objectively identifiable and representative of the pluralistic
world community, limiting the subjective discretion of adjudicators. In this context, the
identification of general principles must be based on domestic or international materials,
relying on which the “implied consent” of States can be derived in light of the conditions and
requirements of the international legal system. This applies both to general principles derived
from domestic legal systems and those formed within the international legal system. The only
difference between these two categories lies in whether the issue the general principle seeks to
address is unique to international law or it has an analogous counterpart in domestic legal
systems.
Moreover, since general principles can “harden” into treaty or customary rules, their
“gapfilling” function can be more significant and consequential than it may appear. Indeed,
general principles have played a crucial role in shaping the content of international law in
different areas. Through the application of general principles of law and their interactions with
the other two sources, international law manages to operate as a coherent legal system capable
of meeting the evolving needs and expectations of the international society. General principles
of law have been a great part for the development of International law , they are used to fill the
gaps when there is no other custom or [Link] constitute both the backbone of the body
of law governing international dealings and the potent cement that binds together the various
and often disparate cogs and wheels of the normative framework of the international
community. They should be complied in a list but due to their dynamic nature it is hard but the
International courts have applied general principles of law in many a cases but the methodology
of the same can't be traced, since courts haven't quite decided the same, but they should so the
appliance of the same won't be challenged. And last, but not least, like a ‘living city’,
international law is a continuing process; principles can evolve into conventional or customary
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rules, but principles will always remain ‘unfinished’. As such, they allow international law to
grow and to respond to modern challenges.

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 BIBLIOGRAPHY

• [Link]
• [Link]
• [Link]
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• [Link]

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