AN ARTICLE ON:

GENERAL PRINCIPLES OF LAW RECOGNISED BY CIVILIZED

NATIONS

BY: SONAM KUMARI

BSc. LLB (Honrs.)

4TH YEAR

KIIT LAW SCHOOL, BHUBANESWAR

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
derived1. 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.) 2
General principles of law are usually used when no treaty provision or clear rule of customary

1 Oxford dictionary of law ( second edn.,1989) entry 5a.

2CustomaryInternationalLaw: Research Guides & Background Information
th
(http://law.duke.edu/ilrt/cust_law_1.htm) last accessed on 11 September 2013
law exists. Thus a principle will not be recognized as general principle of law within the 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.3

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 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.

3 Woodspring District Council v Bakers of Nailsea Ltd.[1997] ECR I- 1847, para-17

LEGITIMACY & VALIDITY OF GENERAL PRINCIPLES:

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.4 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
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'.5
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.6 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

4 I. Brownlie, Principles of International Law, 6th ed. (Oxford: Oxford University Press, 2003),
15
5 Dissenting opinion, Judge Tanaka, South West African cases (Second Phase) ICJ Reports 1966,
298.
6 AF CHRISTINA VOIGT, (The Role of General Principles in International Law and their Relationship to Treaty
Law) 31 2008 NR. 2/121 pg- 7
which is manifested not in a single statutory provision, but usually by a group of mutually
interdependent legal rules or their system.’

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.7

CASES:
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 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.

7 The Common Law of Mankind, London, 1958, p. 169

8 I.C.J. Rep. (1964).p.6
In the Chorzow Factory case in 19289, Court had applied the principle of res judicata.
International Justice declared that ‘it is a general conception of law that every violation of an
engagement involves an obligation to make reparation’.

In Bosnia and Herzegovina v. Serbia and Montenegro10 the question of res judicata was
discussed. The Court emphasized that the principle ‘signifies that the decisions of the Court are
not only binding on the parties, but are final, in the sense that they cannot be reopened by the
parties as regards the issues that have been determined.

In R v Keyn11 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.

CONCLUSION

General principles provide an important dynamic element of international law by preventing

treaty law from being ‘outdated and irrelevant’. Treaties are not set in stone and general
principles are an important supplement and corrective to treaty law. International law to fully
address the problem of fragmentation, the technique of applying general principles needs to be
revived. They 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. And last, but not least, like a ‘living city’,
international law is a continuing process; principles can evolve into conventional or customary
rules, but principles will always remain ‘unfinished’. As such, they allow international law to
grow and to respond to modern challenges.

9 PCIJ, Series A, No. 17,

10 ICJ Reports, 2007, para. 113.
11 (1876) Ex. D. 63