GENERAL PRINCIPLES AS THE

SOURCE OF INTERNATINS LAW

NAME: ARIFA DIWAN

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INDEX

SERIAL TOPIC PAGE NUMBER

1. INTRODUCTION 3

2. WHAT ARE GENRAL 4

3. JUDICIAL DECISIONS AND 4

4. NATURE OF GENERAL 5
PRINCEPLES

5. CASES 7

6. CONCLUSION 8

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INTRODUCTION

Article 38 (1) C of the Statute of International Court of Justice deals with the General
Principles. It is apparently conspicuous that paragraph 1(c) added nothing to the sources
which treaty and custom had taken care of and due to this ICJ barely invoke it, it gradually
went into oblivion and remain dormant until it appeared that new areas of international law
had gap and the rule was revitalized and applied to area like international criminal law and
international administrative law, recourse can be made to the general principle of law
common to all ‘major legal systems of members of the community of nations’,1 if treaty and
custom had been exhausted with gap, that is, estoppels, equity, and so on . Whether
procedural, administrative, or substantive rules, they can be imported to international law, it
however need no treaty or custom for its validation. it is well settled that concepts have ‘pre-
existing legal validity’. While treaties and custom are the most important sources of
international law General Principles is unclear and controversial area of the source. the others
mentioned in Article 38 of the ICJ Statute of the ICJ should not be ignored. General
principles of law recognized by civilised nations as a source tend towards exclusion of
uncivilized nations. They are most often employed where the ICJ or another international
tribunal wants to adopt a concept such as the legal personality of corporations (e.g. in the
Barcelona Traction Co. case (1970)) which is widely accepted in national legal systems. But
international law seldom adopts in its entirety a legal concept from a particular national legal
system; instead the search is for a principle which in one form or another is recognized in a
wide range of national legal systems.
Principle of equity is applicable to international Tribunals that is general principles of equity
and fairness within the scope of paragraph 1(c).it applies in decisions according to law and
not by abstractness outside law like ex aequo et bono in Article 38(2), example of equitable
principle applied are acquiescence and estoppels in River Meuse case. Paragraph 1(c) may
include ‘general principles of International law’ which are similar to principle in National
legal system. In general, treaty and custom growth and intensity have reduced the weight of
general principle of law as the source of international law. Upon becoming parties to a human
rights treaty, states must comply with the obligations enshrined therein. Moreover, when
applying human rights treaties, it is important to take into account the existence of general
principles which are embedded in international human rights law and which guide their
application.2

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[Link]
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[Link]
ideas-and-fora/part-i-the-concept-of-human-rights/general-principles-relevant-to-
international-law
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WHAT ARE GENERAL PRINCEPLES?

A third source of international law identified by the ICJ’s statute is “the general principles of
law recognized by civilized nations.” These principles essentially provide a mechanism to
address international issues not already subject either to treaty provisions or to binding
customary rules. Such general principles may arise either through municipal law or through
international law, and many are in fact procedural or evidential principles or those that deal
with the machinery of the judicial process—e.g., the principle, established in Chorzow
Factory (1927–28), that the breach of an engagement involves an obligation to make
reparation. Accordingly, in the Chorzow Factory case, Poland was obliged to pay
compensation to Germany for the illegal expropriation of a factory.
Perhaps the most important principle of international law is that of good faith. It governs the
creation and performance of legal obligations and is the foundation of treaty law. Another
important general principle is that of equity, which permits international law to have a degree
of flexibility in its application and enforcement. The Law of the Sea treaty, for example,
called for the delimitation on the basis of equity of exclusive economic zones and continental
shelves between states with opposing or adjacent coasts.

JUDIIAL DECISIONS AND JURIST WRITINGS

According to Article 38(1)(d) of its Statute, the ICJ is also to apply "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". It is difficult to tell what influence these
materials have on the development of the law. Pleadings in cases before the ICJ are often
replete with references to case lawand to legal literature.

1. JUDICIAL DECISIONS

The decisions of international and municipal courts and the publications of academics can be
referred to, not as a source of law as such, but as a means of recognizing the law established
in other sources. In practice, the International Court of Justice does not refer to domestic
decisions although it does invoke its previous case-law.
There is no rule of stare decisis in international law. The decision of the Court has no binding
force except between the parties and in respect of that particular case.[32] Nevertheless, often
the Court would refer to its past decisions and advisory opinions to support its explanation of
a present case.3
Often the International Court of Justice will consider General Assembly resolutions as
indicative of customary international law.

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Article 59 of the ICJ Statute Statute of the International Court of Justice

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 2. JURISTIC WRITINGS
Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the
most highly qualified publicists of the various nations' are also among the 'subsidiary means
for the determination of the rules of law'. The scholarly works of prominent jurists are not
sources of international law but are essential in developing the rules that are sourced in
treaties, custom and the general principles of law. This is accepted practice in the
interpretation of international law and was utilized by the United States Supreme
Court in The Paquete Habana case (175 US (1900) 677 at 700-1).

NATURE OF GENERAL PRINCEPLES

There are mainly three principles to General Principles: -

(i) Indeterminacy
(ii) Discretion of courts and tribunals
(iii) Dynamism

1 INDETERMINACY

General Principles are commonly linked to generality and abstractness. General Principles
i.e. principle of equity or proportionality must comprise of such quality. General Principles is
a ‘continuing process’ from their identification to the final determination of the principles’
content in a particular context. The main function of General Principles is to fill the gaps left
open by customs and treaty.

2 DISCRETION OF COURTS AND TRIBUNALS

General Principles they give significant discretion to judges and law makers. According to
Ronald Dworkin, this is exactly what distinguishes principles from rules: when a rule is found
applicable to a certain fact, this rule applies in an all-or-nothing fashion. It directs the answer
to a certain legal question or case.4 Principles, however, like the principle of good faith or

4
T. Eckhoff and N. K. Sundby, Rettsystemer: Systemteoretisk Innføring i Rettsfilosofien (Oslo:

Tanum-Norli, 1976) 129. See also M. Koskenniemi, General Principles: Reflections on Construc- tivist
Thinking in International Law (1985) Oikeustiede Jurisprudentia (Yearbook of the Fin- nish Law
Society) 117-163 who contends with regard to general principles that ‘it is not sel- dom that even
conflicting practices are legitimized by the discursive use of one widely for- mulated principle.’, 159.

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prohibition of abuse of rights or equitable sharing of interests, do not set put conditions that
make their application necessary. ‘Rather’, as Dworkin says, such principles state ‘a reason
that argues in one direction, but does not necessitate a particular decision.5 General principles
are a source of arguments for judges in situations where other sources fail. Such a situation
could either arise where it is impossible for a judge or arbitrator to find a solution in the
positive law as to which of two contradictory norms should be applied or where simply no
norm exists. At the same time, general principles also constrain judges in that they prevent
them from relying too much on their own subjective opinion.

3 DYNAMISM

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. The possibility of the judicial
process to take account of the moral, social and political rationale underlying general
principles may indeed be what renders judicial organs capable of breaking new ground.

5
R. Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press, 1977, 19 th reprint
2002) 25-26

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CASES

R. v. Keyn6

In this case the court ruled that international law is based justice, equality and conscience
which has been accepted by long practice of states.

United States v. Schooner

In this case Justice Storey of United states of America ruled that International law should be
based on the general principle of law recognized by civilized States. He was giving decision
relating to abolition of system of slavery.

Burkina Faso v. Mali7

In 1983 Burkina Faso and Mali entered into an agreement to refer their Frontier Dispute to
the International Court of Justice. During the agreements Mali contended that form of
equality ought to be kept in mind which is an inseparable part of the interpretation of
International law. Though Burkina Faso did not object to the said contention, it said that it
was not clear as to what would be its practical objective in this case because in the
delimitation of boundary, there is no equivalence of equity principles. The chamber of ICJ
held that it can take the help of that equity which both the parties have accepted or given
consent to.

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(1876) Ex. D. 63
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I.C.J Reports (1985) p. 6.
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CONCLUSION

All the sources discussed above can all be found in the practice of UN and where they cannot
be found they kowtow and bow to the resolutions of the Security Council and it will remain
binding on members and even on non-members, aberration of which can be faced with
sanctions. It is submitted that UN has provided a true complement for the gap created in what
is supposed to be accurate reflection of other sources of international law and its activities has
positively affected law-making ways by resolutions and faster means by 15 members of
Security Council and 191 members of the General Assembly as greater needs arise for fast
development of international law codified by International law commission.