The General Principles of Law

Recognized by Civilized Nations

(To the I n t e r p r e t a t i o n of Article 38 of t h e
S t a t u t e of t h e I n t e r n a t i o n a l Court of Justice)
by
G. HERCZEGH

Scientific Assistant
I n s t i t u t e for Legal a n d Administrative Sciences

T h e S t a t u t e of t h e I n t e r n a t i o n a l C o u r t of J u s t i c e is b a s e d on t h e S t a t u t e of
i t s p r e d e c e s s o r t h e P e r m a n e n t C o u r t of I n t e r n a t i o n a l J u s t i c e w h i c h w a s e l a b o r a t e d
b y a C o m m i t t e e of e m i n e n t j u r i s t s . T h e s e j u r i s t s w a n t e d t o e l i m i n a t e , on t h e o n e
h a n d , t h e possibilit y t h a t t h e C o u r t in t h e g i v e n case in a b s e n c e of c o n c r e t e r u l e s
might refuse t o pass a judgment, a n d on the other h a n d , t h e danger t h a t t h e
Court might base its j u d g m e n t s on n o r m s n o t recognized b y t h e parties participat-
i n g i n t h e d i s p u t e . I t w a s in t h i s w a y t h a t t h e g e n e r a l p r i n c i p l e s of l a w r e c o g n i z e d
b y civilized n a t i o n s w e r e i n c l u d o d i n t o t h e t e x t of t h e S t a t u t e .
A t t h o C o n f e r e n c e of S a n F r a n c i s c o w h e r e t h e n e w S t a t u t e w a s d r a f t e d , t h e r e
w a s n o d i s c u s s i o n a b o u t t h o v a r i o u s k i n d s of t h e r u l e s of l a w t o bo a p p l i e d b y t h e
C o u r t . T h e r e v i s i o n of t h e t e x t of A r t i c l e 38 d i d n o t c h a n g e , in t h e o p i n i o n of t h e
a u t h o r , t h e o r i g i n a l m e a n i n g of t h e A r t i c l e .
W h i c h a r e t h e p r i n c i p l e s r e f e r r e d t o in clause c)'l
T h e p r i n c i p l e s of i n t e r n a t i o n a l l a w m a y be f o u n d i n i n t e r n a t i o n a l t r e a t i e s
a n d in t h e i n t e r n a t i o n a l c u s t o m a r y l a w , a n d t h e y m a y b o i n f e r r e d f r o m t h o s e b y
g e n e r a l i z a t i o n of t h e r u l e s c o n t a i n e d t h e r e i n . T h e s e p r i n c i p l e s a r e c o v e r e d b y
c l a u s e s a)—b ) p a r a . 1 of A r t i c l e 38 a n d , c o n s e q u e n t l y , c l a u s e c) c a n n o t r e l a t e t o t h e m .
I n t h e p a s t , t h e i n t e r n a t i o n a l c o u r t s in t a k i n g t h e i r decisions, b a s i n g t h e m -
s e l v e s on t h e c u s t o m a r y l a w u s e d t o r e l y on v a r i o u s p r i n c i p l e s of t h e n a t i o n a l
l a w , in cases w h e r e t h e r u l e s of i n t e r n a t i o n a l l a w o f f e r e d a n i n s u f f i c i e n t b a s i s f o r
a r e a s s u r i n g d e c i s i o n . S u c h p r i n c i p l e s w e r e t o be d i s c o v e r e d a l i k o in t h e m u n i c i p a l
l e g a l s y s t e m s of t h e m a j o r i t y of s t a t e s . I t is t o t h e s e p r i n c i p l e s t h a t t h o c l a u s e u n d e r
d i s c u s s i o n of t h e S t a t u t e a l l u d e s t h u s m a k i n g t h e old c u s t o m a r y r u l e a p a r t of t h e
w r i t t e n i n t e r n a t i o n a l l a w . A l b e i t t h e i n t e r n a l legal p r i n c i p l e s of t h e s t a t e s h a v i n g
d i f f e r e n t s y s t e m s c o n s i d e r a b l y d i f f e r f r o m one a n o t h e r , n o t w i t h s t a n d i n g w e f i n d
a m o n g t h e m s u c h w h i c h , in t h e i r o u t w a r d a p p o a r a n c e , a r e i d e n t i c a l or a t l e a s t
similar.
T h e p r i n c i p l e s of t h e n a t i o n a l l e g a l s y s t e m s a r e n o t s o u r c e s of i n t e r n a t i o n a l
l a w . T h e y a r e o n l y a b s o r b e d a s a c o n s e q u e n c e of l a s t i n g p r a c t i c a l a p p l i c a t i o n b y
t h e i n t e r n a t i o n a l c u s t o m a r y l a w a n d so t h e y b e c o m e p a r t of i n t e r n a t i o n a l l a w .
T h e i r role is t o t e c h n i c a l l y d e v e l o p t h e i n t e r n a t i o n a l l a w b y f o r m i n g n o w , m o r e
d i f f e r e n t i a t e d c u s t o m a r y legal r u l e s .

I.

T h e question of t h e general principles of law occupies an i m p o r t a n t

place in recent literature of international law. " T h e general principles of law
— as s t a t e d recently by a Western scientific work — are t h e most contested
legal source of law among t h e various sources of international law and, accord-
ingly, of the general international law as well." 1 T h e problem is not only
1
BIN C H E N G , General Principles oj Law as Applied by International Courts and
Tribunals, L o n d o n , S t e v e n s , 1953.

1 Acta Juridica VI/1—2.

2 Cr. Herczegh

w h e t h e r we m a y speak of t h e general principles of law within the sources

of international law, h u t some authors contest t h e v e r y existence of such
generally recognized principles of law. E v e n those who recognize the existence
of such general principles, c a n n o t agree on the question w h e t h e r the principles
of law referred t o in Article 38 of t h e S t a t u t e mean t h e f u n d a m e n t a l principles
of international law, or t h e principles of national law a n d particularly those
of civil law.
The scientific discussion a b o u t t h e general principles of law was consid-
e r a b l y animated a n d extended b y t h e effort to make effective the democratic
progressive elements of international law. This explains according to Professor
Koretski 2 the i n t e r e s t shown by Socialist jurists in t h e p r o b l e m of the general
principles of law. This is a much discussed, central p r o b l e m of international
jurisprudence a n d in H u n g a r y , too, as in t h e Soviet U n i o n , t h e interpretation
is connected with t h e examination of t h e democratic a n d progressive character
of t h e general principles of law. This circumstance has increased the i m p o r t a n c e
of such researches b u t made a t t h e same time t h e issue more complicated.
All true p r o b l e m s reflect, like in a drop the whole sea, t h e entire system
of t h e relevant b r a n c h of law. T h e examination of t h e general principles of
law in international law indirectly or directly affects t h e question of sover-
e i g n t y , of the legal capacity, of t h e relation between international law a n d
national law, a n d this leads t o t h e great opposition existing between t h e
positivist conception and t h e conception of natural law. Accordingly, it is
a critical point which enables t o survey t h e construction of international law,
a n d its characteristics of which become sharply defined.

II.

1. Most w o r k s dealing with t h e role of t h e general principles of law rely

on Article 38 of t h e S t a t u t e of t h e P e r m a n e n t Court of I n t e r n a t i o n a l J u s t i c e
a n d of the I n t e r n a t i o n a l Court of J u s t i c e respectively, which enumerates t h e
v a r i o u s types of rules t o be applied by t h e Court. T h e S t a t u t e is the most
i m p o r t a n t among t h e positive rules of law connected with international juris-
diction. It sums u p a n d comprises t h e results of t h e f o r m e r evolution a n d
serves as a model for m a n y international conventions a n d drafts. Accord-
ingly, in the interest of the elucidation of t h e problem of t h e general principles
of law we have f i r s t of all t o analyze the t e x t of Article 38 of the S t a t u t e .
The text of t h e Article in question is as follows:
"The Court shall apply —

2
V. M. KORETSKI, Principiile generale ale dreptului ín dreptul international, Justitia
N o u a , 1957. No. 4.
 The General Principles of Law Recognized by Civilized Nations 3

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, 3 judicial decisions and t h e
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
This provision shall not prejudice the power of t h e Court to decide
a case ex aequo et bono, if the parties agree thereto."
W h a t is, then, the meaning of clause c) par. 1 of Article 38 of the Stat-
ute? I n order to correctly interpret t h e paragraph it is absolutely necessary
to examine the preparatory material of t h e Statute. I t is well known t h a t
t h e Statute of t h e International Court is based, as it is emphasized in Article
92 of the Charter, on t h e S t a t u t e of its predecessor, the P e r m a n e n t Court of
International Justice. The same applies t o Art. 38. For this reason, in t h e
first place, we have to take into consideration the circumstances of the establish-
ment of the Permanent Court of Justice, respectively, a m o n g the preparatory
works concerning the establishment of t h e Court, the debates which had
been connected with the determination of the rules of law t o be applied by
t h e Court.
At its second session held in London in February 1920 the Council of
t h e League of Nations decided to appoint an Advisory Committee of jurists
and charged it with the d u t y of preparing a d r a f t scheme for t h e establishment
of the Permanent Court of International Justice. This Committee of jurists,
which was composed by Adatci, Altamira, Bevilaqua, Descamps, Hagerup,
Lapradelle, Loder, Phillimore, Ricci-Busatti and E. Root has drawn up t h e
d r a f t scheme of the S t a t u t e of the P e r m a n e n t Court of .Justice in the Peace
Palace at the Hague on J u n e 16 and .July 24, 1920. The question of the rules
of law to he applied by the Court arose at the meeting held on July 1. T h e
Chairman of the Committee, Descamps made in this respect the following
proposal:
"The following rules are to be applied by the judge in the solution of
international disputes; they will be considered by him in t h e undermentioned
order:
1. Conventional international law, whether general or special, being
rules expressly adopted by the States;
2. international custom, being practice between nations accepted by
them as law;

3
Article 59 reads as follows: " T h e decision of the Court h a s no binding force
except between t h e parties a n d in respect of t h a t particular c a s e . "
4 Cr. Herczegh

3. the rules of international law as recognized by t h e legal conscience

of civilized nations;
4. international jurisprudence as a means for the application and devel-
opment of law." 4
The proposal was objected to by m a n y members of t h e Committee a n d
in the course of t h e discussion many practical questions a n d scientific conside-
rations were at issue. From a practical point of view it was of first importance
t o establish t h e Court as quickly as possible and to secure the adherence of
as many states as possible. For t h a t purpose the scope of the applicable rules
of law had to be established in rather narrow limits, for t h e states would hardly
have accepted t h e jurisdiction of a court which would have based its judg-
ments on legal rules unknown or not accepted by t h e m . On the other hand,
there was another very important practical requirement: the development
of international law; the court, however, could hardly have performed t h i s
task, in an appropriate way if in respect of the applicable law it were t o be
kept within too narrow bounds. From a scientific point of view the d e b a t e
substantially meant a clash between t h e positiviste and all those who on t h e
ground of considerations based on natural law or for a n o t h e r reason assumed
an opposite view. The text adopted as a result of the discussion reflects t h e
accordance of t h e two practical objectives and a compromise between the t w o
opposed scientific tendencies.
The first speaker, Root, declared t h a t the paragraphs 3 and 4 m e a n t
such an extension of the jurisdiction of the Court which threatened to ruin
it altogether. T h e Court had to restrict its attention t o t h e rules existing in
t h e positive international law, in absence thereof it h a d no authority. Loder
did not agree with Root. " H e r e such rules are in question — he said —
which are recognized and respected everywhere, b u t which have not y e t
a positive character. The Court, however, is qualified t o develop the law,
t o let the custom mature, to crystallize the generally recognized principles
into positive rules." Lapradclle required that the S t a t u t e should not go
beyond stating t h a t the Court would proceed on the basis of law, justice a n d
equity. The rules of law should be determined by t h e judges. On the o t h e r
h a n d , it was necessary to emphasize t h a t the Court had no legislative powers.
H a g e r u p pointed out as follows:
1. I t could not be allowed t h a t t h e Court might refuse to pass a j u d g m e n t
on t h e ground t h a t there was no applicable positive law.
2. If there was a positive international legal rule, it was to be applied
b y the Court, and the Court may only proceed ex aequo et bono if it was

4
Permanent Court of International Justice. Advisory Committee of Jurists. Procès-
verbaux of the proceedings of the Committee June 16m—July 21lfl 1020 with annexes, T h e
H a g u e , Van L a n g e n h u y s e n Brothers, 1920. p. 30G.
 The General Principles of Law Recognized by Civilized Nations 5

authorized thereto by t h e parties. Above all, one must avoid a wording which
would diminish the jurisdiction of t h e Court.
At the next meeting Descamps gave his reasons in a longer speech.
It woidd be a great mistake to believe — he said — that t h e states were only
bound b y agreements established on t h e ground of common consent. A mere
cursory glance thrown at the international life proved w h a t a considerable
role was played there b y obligations created b y one single p a r t y or by t h i r d
persons. In all these cases the objective justice was the n a t u r a l principle to
be applied bv the judge. In the f i r s t place the unanimous teachings of t h e
most highly cjualified publicists h a d to be taken into consideration, in the
second place the legal conscience of civilized nations which o f t e n manifested
itself in a very decisive way.
According to Hagerup the substance of the difference between t h e
standpoints of Descamps and R o o t consisted in the f a c t t h a t whereas
according to Descamps it must be avoided that the Court should refuse
to pass a judgment, Root considered t h e non liquet as admissible. Accord-
ing to Root the world was not willing to accept the compulsory jurisdiction
of a court which would apply principles differently interpreted or understood
in the various states. Loder sharply separated the questions of compulsory
jurisdiction from t h e question of t h e applicable rules of law, and together
with Lapradelle he stressed that all t h a t could lead to t h e refusal of the
jurisdiction should be avoided. This was unacceptable in international law
just as in national laws.
T h e major p a r t of the differences of opinion within t h e Committee
— as Phillimore pointed out — had resulted from the difference existing
between t h e continental and English legal conception. T h e continental con-
ception set strict limits to the judge whereas according to t h e English system
t h e judge only swore to administer justice according to t h e law. Descamps
alluded to the fact t h a t the various legal sources had to be examined one a f t e r
the other, first the treaty, afterwards the custom. In t h e absence of both
the court may not declare the non liquet b u t m u s t have recourse t o the general
principles of law. I t had, however, to be preserved from t h e temptation of
applying these principles at discretion. For this reason it h a d to pass judg-
ments in accordance with the theses of the legal conscience of civilized nations
and for the same reason it had to t a k e into consideration t h e teachings of the
most highly qualified publicists.
At the meeting of .July 3 Root has presented his motion for an amendment:
" T h e following rules are to be applied b y the Court within the limits
of its competence, as described above, for t h e settlement of international
disputes; they will be considered in t h e untermentioned order.
1. Conventional international law, whether general or special, being
rules expressiv adopted by the States which are parties to t h e dispute;
6 Cr. Herczegh

2. international custom, being recognized practice between nations

accepted by t h e m as law;
3. the general principles of law recognized by civilized nations;
4. the a u t h o r i t y of the judicial decisions and t h e opinion of writers as
a means for t h e application and development of law." 5
Root's t e x t was adopted by t h e Committee with t h e exception of Ricci-
Busatti who neither did object, however, to the whole of the motion b u t only
t o the expression "ordre successif". I n his opinion t h e judge had to examine
t h e various sources of law at the same time, in connection with one another,
and he disapproved t h a t paragraph 3 did not mention t h e principle of equity.
Phillimore pointed out t h a t the whole enumeration only reflected t h e logical
order in which t h e sources in question came to the j u d g e ' s mind. The adoption
of equity as a legal source of law would give too great a liberty to the judge.
H e considered t h a t the various paragraphs may be merged, since the general
principles were recognized hv custom and, on t h e o t h e r hand, the custom
took shape by means of t h e use followed in the various documents a n d by
means of t h e works of various authors who entirely agree in some questions.
Lapradelle qualified the words "civilized nations" as superfluous because
t h e notion of law supposed culture and civilization. 6 H e was of the opinion
t h a t the custom had to be mentioned but wondered whether the general
principles of law could be drawn f r o m elsewhere t h a n from the material of
the custom. Phillimore emphasized t h a t the general principles of law were
those which are accepted by all nations in their national laws — in foro
domestico — as, for instance, certain fundamental principles of procedure,
the principle of good faith, the principle of res iudicata, etc. Under general
principles of law he meant maxims of law."
The chairman Descamps, and Phillimore presented a new motion which
was amended b y Ricci-Busatti. This only differed substantially in its para-
graph 4 from t h e former by saying t h a t "the Court will take into considera-
tion the decisions taken by it in similar cases a n d t h e opinion of t h e most
qualified publicists of the various countries as means of the application and
development of t h e law".
Lapradelle agreed with the opinion according to which t h e prin-
ciples forming t h e bases of the national laws were sources of international
law, too, b u t in order to avoid getting too much absorbed in details, he deemed
6
Op. cit. P . 3 4 4 .
6
L a p r a d e i l e ' s r e m a r k is doubtless correct. The use of t h e a t t r i b u t i v e a d j e c t i v e
"civilized" or " c u l t u r e d " is entirely superfluous, it is even disturbing, n o t w i t h s t a n d i n g ,
becnuse of t h e S t a t u t e we are bound by it. I t is perhaps n e e d l e s s t o say that b y civilized
n a t i o n s we u n d e r s t a n d all nat ions c o n s t i t u t i n g a state, all m e m b e r s of t h e i n t e r n a t i o n a l
c o m m u n i t y , regardless of t h e fact w h e t h e r t h e y live in E u r o p e or in Africa, w h e t h e r
t h e y are economically developed or undeveloped, w h e t h e r t h e y have a n i n d e p e n d e n t
historic p a s t or t h e y were recently l i b e r a t e d f r o m the colonial status.
7
Op. cit. P . 3 3 5 .
 The General Principles of Law Recognized by Civilized Nations 7

desirable the adoption of one single s h o r t sentence — for instance the general
principles of law — without precisely indicating the sources from which t h e
principles in question have to be d r a w n .
The Committee in its report did n o t make any mention of the discussion
roughly outlined above and did not summarize it. However, the d r a f t scheme
of the S t a t u t e attached thereto, s t a t e d the standpoint assumed by the Com-
mittee as a result of t h e debate. T h e Article concerned included in the d r a f t
scheme under N u m b e r 35 reads as follows:
" T h e Court shall, within the limits of its jurisdiction as defined in Article
34, apply in the order following:
1. international conventions, w h e t h e r general or particular, establishing
rules expressly recognized by the contesting States;
2. international custom, as evidence of a general practice, which is
accepted as law;
3. the general principles of law recognized by civilized nations;
4. judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as a subsidiary means for the determination
of rules of law." 8
Accordingly, in t h e interest of t h e quicker and more successful develop-
ment of international law, the Article in question contains not two b u t four
paragraphs. If we disregard for the m o m e n t the jurisdiction based on equity
which does not concern us directly, t h e drafting of the two latter paragraphs
is considerably more precise and d e f i n i t e than the original d r a f t scheme pre-
pared by Descamps. T h e positiviste a n d their adversaries, however, even so
f i n d in the text of t h e Article t h e arguments necessary to support their
respective standpoints, all the more because the Article in its conciseness
calls for explanation and in that w a y presents numerous opportunities for
t h e expounding of several, sometimes opposed views.
T h e compromise between t h e opposed conceptions stood the test in
the course of the existence of a q u a r t e r of a century of the Permanent Inter-
national Court of Justice, as the C o u r t itself on the whole played a useful
role in the period between the two W a r s . I t was not owing to the failure of
t h e Court but to t h e failure of the system of the League of Nations t h a t it
came t o its reorganization, more exactly to the establishment of a new Court
closely connected with the universal Organization which — in contradistinc-
tion to the Permanent International Court of Justice which had been f r o m
a legal point of view an independent institution, — continues its activity
as an organ of the United Nations Organization.
F o r this reason, at the San Francisco Conference, where the Character
of the United Nations was drafted, also the Statute of the new Court was

8
Op. cit. p. 730.
8 Cr. Herczegh

established, which as t h e consequence of t h e close connection existing between

t h e U N O and the new Court forms an integral p a r t of the Charter. The Soviet
science of international law energetically emphasizes t h a t " . . .the Statute
of t h e International Court of the U n i t e d Nations is a new international con-
vention. This convention was concluded under other conditions than t h e
S t a t u t e of the P e r m a n e n t Court of International Justice and to the provisions
of t h e International Court there cannot always be a t t r i b u t e d t h e same meaning
which was attributed in 1920 to the analogous provisions of the Statute of
the P e r m a n e n t Court of International Justice." 9
There is no d o u b t b u t that the new Statute, although based upon t h e
old one, is a new international convention. J u s t for this reason we have t o
carefully examine t h e minutes and other official documents of the San Fran-
cisco Conference, too, in order to obtain a sufficient basis for the correct
interpretation of the new Statute. However, a f t e r having studied the prepara-
t o r y material we m u s t come to t h e conclusion that, in contradistinction t o
t h e Committee of J u r i s t s sitting in t h e Peace Palace at The Hague, in t h e
various commissions of the Conference of San Francisco Art. 38 was surpris-
ingly very little discussed. The Informal International Allied Committee, for
instance, pointed o u t in its memorandum:
" T h e law to be applied by the Court is fixed by Art. 38 of the Statute,
a n d although the t e x t of this provision gives rise to possible criticism, it
has been proven in practice and we recommend it to be included."
According to t h e proposal of Venezuela: "As far as t h e applicable law
is concerned, the provisions of Article 38 do not give an opportunity t o
f u n d a m e n t a l objections." 1 0
T h e report of t h e Committee of J u r i s t s established for the drafting of
t h e new Statute p r e p a r e d by Basdevant, respectively its p a r t relating to this
question runs as follows: "Article 38, which determines, according to its terms,
w h a t t h e Court 'shall apply' has given rise to more controversies in doctrine
t h a n difficulties in practice. The Committee thought t h a t it was not the oppor-
t u n e t i m e to u n d e r t a k e t h e revision of this article. I t has t r u s t e d to the Court
to p u t it into operation, and has left it without change other t h a n t h a t which
appears in the numbering of the provisions of this article." 1 1
On the other h a n d , in the course of the f u r t h e r discussion about t h e
Article, the question arose again whether the Article — when enumerating

9
G . I. T U N K I N , Voprosg teorii mczhdunarodnogo prara, G o s y u r i s d a t , Moscow,
1962. p. 154.
10
UNCIO, J u r i s t s I G - l . 1945 April 4.
11
UNCIO, J u r i s t s 86/G/73. April 25. 1945. D o c u m e n t s , vol. X I V . p. 843. —
B a s d e v a n t declared once t h a t a l t h o u g h t h e whole Article 38 was not well d r a f t e d , it
w o u l d be difficult t o p r e p a r e a better d r a f t in t h e course of t h e t i m e available for t h e
C o m m i t t e e . He p o i n t e d out t h a t t h e Court worked well on t h e basis of Article 38.
Consequently, ho h a d t h e feeling t h a t it was n o t necessary t o d e v o t e a n y more t i m e
for i t s rewording. U N C I O , J u r i s t s 40/G/80. April 13, 1945. D o c u m e n t s , v o l . ' X I V . p. 170.
 The General Principles of Law Recognized by Civilized Nations 9

t h e rules to be applied by the Court — also intended to determine the order

in which the Court should have recourse to them. The two observers of the
P e r m a n e n t Court of International J u s t i c e invited by the Chairman to give
their opinions gave a concordant negative reply. 12
T h e Chilean delegate remarked t h a t the Article did not expressly refer
to international law and proposed t h a t point с) of the first paragraph
should be complemented by the following p a r t of a sentence: " a n d partic-
ularly the fundamental principles of international law." Several delegates
and the observers of the Court, however, pointed out t h a t Article 38 had
always been regarded by them as containing implicitly the d u t y of applying
international law a n d considered as superfluous the amendment proposed. 1 3
Chile a t a later meeting of the Subcommittee modified her proposal which was
a f t e r w a r d s adopted unanimously. T h e complement was attached not to point с
of paragraph 1 b u t t h e text of p a r a g r a p h 1 was completed by a subordinate
clause by way of adding to the word " C o u r t " the words: " t h e task of which
is to decide on the ground of international law the dispute submitted to it." 1 4
In my opinion, however, t h e complement does not permit of such a far-
reaching conclusion t h a t it would have changed the original meaning of Art. 38.
Without doubt it was right t h a t t h e complement had not been attached to
the place originally proposed by Chile in connexion with point с of paragraph 1,
where it would only have made confusion. The new text emphasizes t h a t the
Court administers justice on the ground of law, t h a t it applies international
law, b u t the t e x t does not pronounce on the question whether in point с
the principles of international or national law are at issue, since, as we shall
see later, the application of the principles of national law may involve a
"decision of conformity with the provisions of international law". The whole
Article 38 is to be regarded as "implicitly comprising the reference to the d u t y
of applying international law".
This is proved also by the report submitted by Subcommittee No. IV/1
to the General Committee No. IV. According to this, " t h e first Subcommittee
has adopted an amendment to be included into the introductory sentence of
the present paragraph which alludes t o the function of the Court to decide
the disputes s u b m i t t e d to it in accordance with international law. The gap
to be found in the old Statute concerning this point did not prevent the Per-
manent Court of International J u s t i c e in considering oneself as an organ of
international law, t h e amendment, however, will stress this character of the
new Committee." 1 5

4
- UNCIO, Doc. 240 (English) IV/I/15. May 11, 1945. D o c u m e n t s , vol. ХПГ.
p. 164.
13
Loc. cit.
14
UNCIO, Doc. 828. (English) IV-/1/67. J u n e 7, 1945. D o c u m e n t s , vol. X I I I . p p .
284—285.
15
UNCIO, Doc. 913. (English) I V / l / 7 4 (1) J u n e 12, D o c u m e n t s , vol. X I I I . p. 392.
10 Cr. Herczegh

Accordingly, as it appears f r o m the report, t h e purpose of the amend-

m e n t was not t o decide the d i s p u t e a b o u t point 3 of Art. 38 which, f r o m
a practical point of view, was n o t essential anyway, b u t t o emphasize and
t o a f f i r m the c h a r a c t e r of the new Court as a legal f o r u m . No proposal or
r e p o r t contradicting this can be f o u n d in the material of t h e San Francisco
Conference and t h e r e is no trace either of a dissenting Soviet standpoint relat-
ing t o this Article. Consequently, we have no reason, no basis for a t t r i b u t i n g
t o A r t . 38 of the new S t a t u t e a n o t h e r meaning t h a n t o the similar provision
of t h e old S t a t u t e .
As far as t h e o r d e r in which t h e rules and t h e sources, respectively, t o be
a p p l i e d are to be t a k e n into consideration, the delegate of Columbia i n s t e a d
of amending t h e t e x t of Art. 38 contented himself with the fact t h a t his rele-
v a n t declaration was attached to t h e minutes. I n this he stressed upon t h e
i m p o r t a n c e of t a k i n g into account t h e conventional duties of the parties t o
t h e dispute and t o o k notice of t h e declaration of t h e representatives of t h e
C o u r t t h a t the Article in question h a d assisted t h e Court in paying a t t e n t i o n
t o t h e conventional duties of the States. 1 "
2. After t h a t we are going to summarize the s t a n d p o i n t of the literature.
As f a r as the H u n g a r i a n science of international law is concerned, even prior
t o 1945 our l i t e r a t u r e had dealt with the problems relating t o Article 38 of
t h e S t a t u t e and a m o n g them, in t h e first place, with the character of t h e
general principles of law as a source of law. 17 However, it was only in our
Socialist literature t h a t the question of t h e general principles of law came i n t o
t h e centre of i n t e r e s t within t h e wider scope of t h e problem of the sources
of international law. Y e t we are still lacking a u n i f o r m a n d concordant view
as t o t h e position t o be taken in respect of it.
According t o H a j d u , the p a r a g r a p h in question of t h e S t a t u t e relates
t o t h e general principles of international law. " T h e general principles of
law — he points o u t — constitute a source t h e i m p o r t a n c e of which is con-
siderable in those d o m a i n s where, in t h e absence of conventional regulations
a n d frequently of concrete custom as well, the rules of these connexions m a y
be established just on t h e ground of these principles." F u r t h e r on he states
t h a t "in default of concrete dispositions the principle itself is the source of
law f r o m which r i g h t s and duties ensue". 1 8
Essentially a similar standpoint was assumed b y Haraszti in his s t u d y :
" A Nemzetközi Bíróság g y a k o r l a t a " (The Practice of t h e International Court).

16
UNCIO, Doc. 828. (English) I V / l / 6 7 . J u n e 7, 1945. D o c u m e n t s , vol. X I I I . p. 287.
17
J . C S I K Y , Az általános jogelvek mint a nemzetközi jog forrása (The General
Principles of Law as the Source of International Law), Szeged, 1934. p. 49. According t o
Csiky: " T h e general principles of t h e legal systems of m o d e r n s t a t e s are those which
a r e a p p l i e d by t h e j u d i c i a l practice as s u b s i d i a r y sources." Op. cit. p. 10.
18
G Y . H A J D U , Nemzetközi jog (International Law), E g y e t e m i t a n k ö n y v (Uni-
v e r s i t y Text-book), B u d a p e s t , T a n k ö n y v k i a d ó , 1954. p. 18.
 The General Principles of Law Recognized by Civilized Nations 13

"Since t h e Conference of San Francisco there cannot be any doubt — lie says —
t h a t clause с) of Article 38 comprises t h e general principles of international
law." 1 9 He recognizes the source of law character of t h e general principles
and professes t h a t "these principles mean in the first place the general prin-
ciples of international law . . ." 2 0
On the other hand, Buza holds t h a t t h e general principles of law referred
to in clause c), paragraph 1 of Article 38 are not the general principles of
international law b u t those of national law. " H e r e — he points out — the point
is t h a t the general principles of national laws are transferred by the way
of analogy onto the level of international law, on the ground of the considera-
tion t h a t if the states concerned did regulate certain questions on the basis
of certain principles in their national law, it may be presumed t h a t t h e y
would have applied the same principles when regulating t h e question on t h e
level of international law." 2 1
There were a t t e m p t s made to bridge over both tendencies by stating
t h a t clause с) meant equally the principles of international law and those of
the national law. 22
Accordingly, in our present literature we cannot speak of a uniform
and generally adopted conception as to t h e meaning of t h e general principles
of law and this gave us incentive to write this study.
Let us see now the standpoint of t h e Soviet science. Kozhevnikov
in the p a r t relating to the sources of law of his work "Chapters from the Domain
of International L a w " quotes Article 38 of the Statute, he does not deal,
however, with the general principles of law. Korovin states that . . . " T h e
general principles of law to which Article 38 of the Statute of the International
Court of the U n i t e d Nations refers m a y n o t be regarded in themselves as the
sources of international law in the legal sense of the term, since their intro-
duction into the international practice is effected either by the way of an
international t r e a t y or b y the way of t h e international custom." 2 3 He draws
a parallel between the general principles of law and t h e Acts of Parliament
of the various states as b o t h may only become a rule of international law
inasmuch as they arc incorporated by an international t r e a t y or by the inter-
national custom. Krylov puts, among t h e sources of international law, a f t e r
the international treaties, the custom a n d the resolutions of international
organizations, on the fourth place the legislation of the states and in general

19
H A R A S Z T I , op. cit. P. 18.
2U
Tho candidate-reply of GY. HARASZTI, Manuscript.
L . B U Z A , Szükséghelyzet
21
a nemzetközi jogban (State of Emergency in International
Law), A Magyar T u d o m á n y o s A k a d é m i a T á r s a d a l m i - T ö r t é n e t i T u d o m á n y o k O s z t á l y á n a k
Közleményei, vol. V I I I . No. 4. B u d a p e s t , 1958. p. 292.
22
See t h e review on t h e work: A Nemzetközi Bíróság joggyakorlata. 194(i—195G (The
Judicial Practice of the International Court. 1946—1956), J o g t u d o m á n y i Közlöny, 1959.
No. 1. p. 38.
23
E . A. K O R O V I N , Mezhdunarodnoe Pravo, Moscow, Gosyurisdut, 1 9 5 1 . p. 1 6 .
12 Cr. Herczegh

t h e various forms of national law, subject t o their being recognized also b e y o n d

t h e f r o n t i e r s of the s t a t e on t h e territory of which t h e y were established. He
f u r t h e r adds t h a t t h e y m a y only be qualified as sources of reference. 2 4 Neither
Korovin nor K r y l o v assume a definite, unambiguous standpoint in t h a t
w h e t h e r t h e y refer clause c) to the general principles of international law or
of t h e national law, although from K o r o v i n ' s above q u o t e d sentence (which
otherwise connects t h e questions of t h e international custom with the general
principles of law) it m a y be inferred t h a t w h a t he had in m i n d in connexion
with t h e contested p a r a g r a p h were t h e jirinciples of international law. K r y l o v ,
in a n o t h e r s t u d y alludes to t h e fact t h a t t h e Soviet a u t h o r s recognize t h e
binding force of international custom " a s t h e y also recognize the binding
force for t h e states of t h e generally recognized principles of international
law". 2 5 B o t h however, energetically emphasize t h a t international law, too,
is influenced by national law and t h a t in case of recognition the latter m a y
become a p a r t of international law. T h e s t a n d p o i n t of Polianski is enough
complicated a n d composite. As far as t h e S t a t u t e of t h e P e r m a n e n t Court of
I n t e r n a t i o n a l J u s t i c e is concerned, he considers it admissible t h a t it indeed
referred to t h e principles of national law; however, t h e a m e n d m e n t of t h e
t e x t , a d o p t e d at t h e Conference of San Francisco, in his opinion, decided t h e
question in f a v o u r of t h e principles of international law. I n spite of this,
he does not exclude t h e other possibility: " T h e adoption of t h e general prin-
ciples of law recognized b y civilized nations among the sources of international
law obliges t h e I n t e r n a t i o n a l Court t o t a k e equally i n t o consideration t h e
s y s t e m of Soviet Law a n d t h e various s y s t e m s of bourgeois Law, irrespective
of t h e f a c t whether it is agreeable or n o t t o the authorities of the bourgeois
science on international law." 2 6 All things considered, however, it is evident
t h a t w h a t Polianski means under the principles referred t o in clause c) are
t h e general principles of international law. Professor Koretski assumes a
definite, u n a m b i g u o u s standpoint. " F o r t h e Soviet doctrine of international
law it seems b e y o n d d o u b t t h a t t h e general principles of law mean in inter-
national law t h e principles of international law." 2 7 Koretski is followed
b y T u n k i n , too, who points out " a s far as t h e general principles referred t o
in Article 38 of t h e S t a t u t e of the I n t e r n a t i o n a l Court are concerned, in t h e
Soviet literature it was correctly s t a t e d t h a t these principles relate t o t h e
general principles of international law, t h a t is to sav, to those principles which

21
S . В . K R Y L O V , Les notions principales du droit des gens. Recueil des Cours, 1947.
vol. I. ( 7 0 ) p. 4 4 4 .
25
K R Y L O V , TO the Discussion of theTheoretical Questions of International Law,
Sovietskoe G o s u d a r s t v o i P r a v o , 1954. No. 7.
26
N . N . P O L I A N S K I , Medzinarodny slid, B r a t i s l a v a , 1953. p. 1 1 6 .
27
V . M . K O R E T S K I , Obshchie printsipy mezhdunarodnom prave (General Principles
of Law in International Law), Kiev, I z d a t e l s t v o Akademii N a u k Ukrainskoi SSSR,
1957. p. 46.
 The General Principles of Law Recognized by Civilized Nations 13

irrespective of their origin are applied in international law and constitute

a p a r t thereof. They become part of international law either by the way of
an international convention or by t h e way of the custom, and therefore may
not be considered as independent sources of international law." H e exposed
in detail this opinion, while criticizing the opposing views, in his recent publi-
cation: "Questions of the Theory of International L a w . " T h e same conception
is to be found in t h e university text-book edited by Kozhevnikov as well
as in the monography written by Minasian on the sources of international
law; accordingly, this may be regarded as the prevailing standpoint in t h e
Soviet science of international law today professed b y t h e most renowned
jurists. 28
The fact however, t h a t this opinion is the prevailing standpoint in t h e
»Soviet science of international law, doesn't mean t h a t it is at the same time
the exclusive one. P . I. Lukin on t h e basis of the examining of the text of
Article 38 and of its historical materials, comes to t h e conclusion t h a t "point
с) of Article 38 of t h e S t a t u t e has in view the principles of the national law
of the particular States". 2 9
In the western bourgeois literature of international law we do not f i n d
at all a uniform, generally accepted standpoint. Some authors, as for instance
Kelsen, Kopelmanas, contest or direclv deny the existence of the "generally
recognized principles of law". "Regarding clause c), — says Kelsen — it is
doubtful whether such a thing as 'general principles of law recognised by civi-
lised nations' exists a t all. I t is not very likely t h a t t h e f u n d a m e n t a l antago-
nism which nowadays separates the civilized nations in t h e political as well
as economic field, should not extend to the field of law." Kopelmanas,
for one, declares t h a t there is nothing less probable t h a n t h a t a certain number
of general principles could be inferred from the harmony of the internal legisla-
tions. Not only t h e standpoints of t h e French and German laws are entirely
opposed in respect of t h e conclusion of the contracts b u t even within the
French law itself t h e practice followed by the Cour de Cassation and the
Conseil d ' E t a t concerning the clause "rebus sic stantibus".30

28
G. I. T U N K I N , Coexistence during Forty Years and International Law, Sovietski
Yezhegodnik M e z h d u n a r o d n o g o Prava, 1958. Moscow, I z d a t e l s t v o Akadcmii N a u k S S S R ,
1959. p. 20.; T U N K I N , Voprosg teorii mezhdunarodnogo prava, Moscow, Gosyurisdat,
1902. p p . 140 a n d seq.; Seo f u r t h e r F. I . K O Z H E V N I K O V , Mezhdunarodnoe pravo, Moscow,
Gosyurisdat, 1957. p. 8.; N . M. M I N A S I A N , Istocliniki sovremennogo mezhdunarodnogo
prava, I z d a t e l s t v o R o s t o v s k o g o Universiteta, 1900. p. 27. a n d seq. Very interesting a n d
very r e m a r k a b l e is t h e s t a n d p o i n t of V. I. Lesovski a n d A. M. L a d i z h e n s k i (contested b y
Durdienski) according t o whom some principles of i n t e r n a t i o n a l law, e.g. t h e principle
"pacta sunt servanda" are logical presuppositions thereof. Q u o t e d b y M I N A S I A N , op. cit.
p. 31.
29
P . I . L U K I N , Istochniki mezhdunarodnovo prava, Moscow, I z d a t e l s t v o Akademii
N a u k , 1900, p. 95.
30
II. KELSEN, The Law of the United Nations, London, Stevens, 1951. p. 533.,
f u r t h e r L. K O P E L M A N A S , Quelques réflexions au sujet de l'article 38, 3° du Statut de la
Cour Permanente de Justice Internationale, Paris, Pedone, 1930.
14 Cr. Herczegh

According t o certain jurists of authority — Anzilotti, H u d s o n — t h e

g e n e r a l principles of law mean in t h e f i r s t place t h e principles of international
law a n d they concern only in t h e second place t h e national law. Scelle
q u a l i f i e s the general principles of law as a general custom which he opposes
t o t h e customary law in a narrow sense of the term, comprising t h e particular
rules. According t o Schwarzenberger there is no s h a r p dividing line between
t h e international c u s t o m a r y law a n d t h e principles of law recognized by civi-
lized states. The principles of good faith, honesty a n d prescription m a y be
e q u a l l y regarded as n o r m s of the international customary law a n d as principles
recognized by civilized nations. 3 1
A considerable p a r t of the western international jurists, however, are
i n c l i n e d to give preference in this question to the general principles of national
laws. Verdross w h o was perhaps t h e first and t h e most t h o r o u g h investigator
of t h e question of t h e principles of law, points out t h a t " u n d e r these general
principles of law t h e international legal practice means those principles of
law which are c o m m o n in the legal systems of the civilized s t a t e s " . He elabo-
r a t e s this idea in his later works, too. " T h e general principles of law — he
s a y s — are to be distinguished f r o m t h e principles of international law in t h e
n a r r o w e r sense of t h e term, since in t h e latter case such principles are at issue
w h i c h are contained in international treaties and in t h e international custo-
m a r y law, whereas in t h e former case such principles which did n o t yet obtain
recognition either in international treaties or by t h e c u s t o m a r y law . . . T h e
principles of law in question here are such as were either directly inferred from
t h e i d e a of law, as f o r instance, t h e principles of good f a i t h a n d honesty, or
s u c h principles which serve as t h e basis of a certain b r a n c h of law, b u t chiefly
t h o s e which are recognized unanimously by civilized nations a n d which may
b e transferred to t h e domain of t h e i n t e r s t a t e relations." 3 2 I n t h e French legal
l i t e r a t u r e Rousseau who starts f r o m a similar conception, has arrived a t
a s o m e w h a t different standpoint. 3 3 H e had, in t h e first place, the principles
of n a t i o n a l law in m i n d , b u t t h o u g h t t h a t the general principles of inter-
n a t i o n a l law, too, fell under clause c.
Similarly t h e general principles of national laws were collected and system-
a t i z e d by L a u t e r p a c h t who was analyzing the legal cases, t h e practice of
i n t e r n a t i o n a l courts; a n d recently b y Bin Cheng, too. 34
31
G. S C E L L E , Précis du droit international public, vol. I I . Paris, Sirey, 1934. pp.
312—315, and G. S C H W A R Z E N B E R G E R , Einführung in das Völkerrecht, Tübingen, J . С. В.
M o h r ( P a u l Siebeck), 1951. p. 28.
32
A. VERDROSS, Die Verfassung der Völkerrechtsgemeinschaft, Wien—Berlin,
S p r i n g e r , 1926. p. 27, a s also V E R D R O S S , Völkerrecht, Wien, Springer, 1950. p p . 113—114.
See still V E R D R O S S , Les principes généraux du droit dans la jurisprudence internationale,
R e c u e i l des Cours, 1935. vol. II. (52) p p . 191—251.
33
C H . R O U S S E A U , Droit international public, Paris, Sirey, 1953. p p . 70—71.
34
The s y s t e m a t i z a t i o n of Bin Cheng emphasizes t h e following principles a n d exposes
t h e judicial practice i n t h e following g r o u p s : t h e principle of self-defence, t h e principle
of good f a i t h (the principle of the p r o h i b i t i o n of t h e abuse of rights), t h e principles con-
 The General Principles of Law Recognized by Civilized Nations 15

3. When interpreting t h e provisions of Article 38, t h e judicial practice

may not be left out of consideration. W e have to e x a m i n e how the n a t u r e
of the generally recognized principles of law was conceived and exposed b y
the P e r m a n e n t Court of International J u s t i c e and later on by the International
Court in their j u d g m e n t s and so-called advisory opinions.
I n t h e L o t u s case, for instance, t h e Court stated t h a t t h e words " p r i n -
ciples of international l a w " as ordinarily used, can only m e a n international
law as it is applied between all nations belonging to the c o m m u n i t y of States . . .
It is evident f r o m this quotation t h a t u n d e r the principles of international
law the P e r m a n e n t Court of Justice m e a n t t h e international law itself, n a m e l y
its universal rules, i.e. its rules binding on all members of t h e international
community. Consequently, t h e Court d i d not divide t h e principles of inter-
national law f r o m t h e international c u s t o m a r y law comprising universal rules,
accordingly, it did not base this p a r t of its judgment on t h e sources of law
e n u m e r a t e d in p a r a g r a p h 3, b u t on t h o s e referred to in p a r a g r a p h s 1 a n d 2.
" T h e general principles of i n t e r n a t i o n a l law apply t o Danzig subject,
however, t o t h e t r e a t y provisions b i n d i n g upon the Free City and to decisions
taken b y t h e organs of t h e League u n d e r these provisions." 3 5
Another j u d g m e n t of a similar n a t u r e declared a l r e a d y on the g r o u n d
of t h e practice of t h e International Court t h a t the obligations incumbent u p o n
Albanian authorities "are based, not on t h e Hague Convention of 1907,
No. VIII, which is applicable in time of war, b u t on certain general and well-
recognized principles, namely: e l e m e n t a r y considerations of humanity, even
more exacting in peace t h a n in war; t h e principle of t h e f r e e d o m of m a r i t i m e
communication; and every State's obligation not to allow knowingly its terri-
t o r y to be used for acts contrary to t h e rights of other States". 3 6
In all the t h r e e cases mentioned always the general principles of inter-
national law were in question, i.e. t h e application of t h e universal rules of
international law referred to by clauses a) and b) of t h e f i r s t paragraph of
Article 38 of the S t a t u t e . The Court did n o t lay down, either by an individual
or by a general s t a t e m e n t , t h a t by clause c) it meant t h e general principles
of international law. On the contrary, f r o m t h e fact t h a t t h e Court did n o t
use t h e words of t h e S t a t u t e in the wording of its j u d g m e n t , we m a y d r a w
the conclusion t h a t according to the conviction of the Court the j u d g m e n t s
mentioned above did not a m o u n t to t h e application of clause c), respectively
of par. 3, according t o the old numbering.

nected with t h o liability and t ho various f o r m s of liability, as well a s n u m e r o u s p r o c e d u r a l

principles. Among these ho mentions t h e following: extra compromissum arbiter nihil
facere potest ; nemo debet esse iudex in propria sua causa ; audiatur et altera pars ; iura
novit curia ; onus probandi, res iudicata e t c . B I N C H E N G op. cit. p p . V I I — X .
35
E . I I A M B R O , The Case Law of the International Court, Ley den, Sijthoff, 1 9 5 2 .
pp. 69. a n d 181.
16
IIAMBRO, op. cit. P. 71.
16 Cr. Herczegh

In the two cases hereinafter the question assumes, to a certain extent,

a different aspect: "Germany — said t h e Court in the Polish Upper Silesia-
Case — undoubtedly retained until the actual transfer of sovereignty the right
t o dispose of her property, and only a misuse of this right could endow an
act of alienation with the character of a breach of the Treaty; such misuse
cannot be presumed, and it rests with t h e party who states that there has
been such misuse to prove his statement." 3 7 The judgment passed in the so-
called case of the Free Zones of Upper Savoy and Gex also concerns the ques-
tion of the misuse of rights. "A reservation must be made as regards the case
of abuses of right, since it is certain that France must not evade the obligation
t o maintain the zones by erecting a customs barrier under the guise of a control
cordon. But an abuse cannot be presumed by the Court." 3 8 The prohibition
of abuse of rights is a generally recognized principle of the state national laws
where it first made its appearance. The recent evolution of international law,
however, proves t h a t the principle of the prohibition of misuse of rights has
been also recognized by the public international law, because, only to mention
t h e most important example, the Charter very emphatically stresses the d u t y
to fulfil the obligations assumed in accordance with the Charter in good faith.
Consequently, the practice of the Permanent Court of International
Justice and of t h e International Court corroborates what has been said a t
t h e San Francisco Conference. The question of the general principles of law
m e a n t much more problems for the theory than for the practice. If we examine
t h e judgments and the advisory opinions of the Permanent Court of Inter-
national Justice and of the International Court, one, essentially, does not meet
a single case in which the Court would have actually based its decision on t h e
general principles of law recognized by civilized nations. I t is true that t h e
notion of the general principles of law is several times referred to in the texts
of the judgments and advisory opinions, respectively, without, however, t h e
Court's having assumed a precise standpoint excluding all doubt whether t h e
general principles of international or of national law were at issue.39

37
HAMBRO, op. cit. p. 73.
38
loc. cit.
39
" T h e r e l a t i v e r a r i t y of t h e reference t o t h e "general principles of l a w " p e r m i t t e d
a n d prescribed b y t h e S t a t u t e of the Court, is emphasized b y t h e f a c t t h a t in those cases
in which t h e y were a c t u a l l y applied b y t h e C o u r t , t h e Court, p e r h a p s not accidentally,
a b s t a i n e d f r o m h a v i n g eo nomine recourse t o t h e m a n d f r o m r e f e r r i n g expressly t o p a r a -
g r a p h 3 of Article 3 8 . " H . L A T J T E R P A C H T , The Development of International Law by the
International Court, N e w York, Praeger, 1958. p. 167. I n individual opinions such references
c a n be f o u n d a l r e a d y m o r e f r e q u e n t l y . T h i s m a k e s t h e s y s t e m a t i z a t i o n of t h e judicial
p r a c t i c e more d i f f i c u l t . T h e "Case L a w " b y H a m b r o , who collected t h e practice of t h e
P e r m a n e n t Court of I n t e r n a t i o n a l Justice a n d of t h e I n t e r n a t i o n a l Court, divides t h e
m a t e r i a l of the legal cases —- within t h e sources of i n t e r n a t i o n a l l a w — into six c h a p t e r s .
A m o n g these t h e f i f t h bears t h e title " T h e Principles of I n t e r n a t i o n a l L a w " a n d d i v i d e s
i t s m a t e r i a l into t w o g r o u p s : a) general rules a n d b) the question of t h e abuse of r i g h t s .
T h i s division is h a r d l y satisfactory.
 The General Principles of Law Recognized by Civilized Nations 17

Accordingly, the analysis of t h e preparatory material of Article 38 of

t h e S t a t u t e and of the literature and judicial practice referring thereto, shows
t h a t we may not speak of a uniform, generally accepted standpoint. In t h e
Committee of Jurists which prepared the d r a f t scheme of the Statute there
sat t h e representatives of differing legal systems; differing both in their
construction and in their conception. Yet the text of the S t a t u t e did not express
a complete reconciliation, t h e perfect aligning of the views of the jurists who
were members of the Committee b u t only a compromise between their words,
their declarations; in other words it is an international document which seemed
suitable in order to achieve the common purpose they wanted to attain without
being opposed to their respective theoretical conceptions, moreover, one t h a t
could be interpreted and explained without eclipsing the aim t h e y were striving
a f t e r . All this applies even to a larger extent to the present scientific litera-
t u r e of international law. All rules of law may be interpreted, they even have
to be interpreted, and the same text in the works of authors following opposed
views gets a different meaning even though from the practical point of view
there is no essential difference between such authors.
We must not forget either t h a t the International Court just as the one-
time Committee of jurists which had prepared the d r a f t scheme of the Statute,
is composed of judges representing various legal systems of t h e world, and as
such necessarily professing different theoretical views. The Court in its judg-
ments and advisory opinions strives to decide concrete legal cases — the so-
called advisory opinions, too, are connected with concrete cases — and not
to elaborate scientific theories. Even when it speaks of general principles,
if often does so to simplify matters, in order to avoid the necessity to look u p
dispersed rules of customary law; on the other hand, it may wish to give added
importance to the decision and t h e force of the argumentation by referring
not to an isolated written or unwritten rule b u t to principles manifesting them-
selves in the mass of norms.

III.

1. Before passing over on expounding my s t a n d p o i n t I have to deal

with the concepts of the principle of law and of the source of law. This will
necessitate the repetition of many commonplace, hacked-to-death statements,
nevertheless this unpromising task cannot be disregarded without the danger
of later misunderstanding. In effect, t h e question whether the term " t h e
general principles of law" referred to in the Statute, should be understood as
t h e principles of international law, of national law or both, f u r t h e r of their
role played in international law, is in t h e closest connection with the question:
in what sense these well-known and very often applied concepts are to be used.

2 Acta Juridica VI/1—2.

18 Cr. Herczegh

All principles, all basic principles constitute t h e general contents, and

t h e comprehensive rides of the life of t h e society. There are moral, political,
legal, etc. principles a n d basic principles, respectively. T h e principle of law
is a general norm never appearing in a single positive rule of law b u t always
in a group or system of interconnected rules of law. No s h a r p dividing line
can be drawn between a principle of law a n d a basic legal principle. The basic
legal principles too are principles of law, and it is only because of their impor-
tance, of their greater significance or their more general contents t h a t t h e y
are designated by d i f f e r e n t expressions. On the other h a n d , the principle of
law as a general, comprehensive rule is n o t h i n g b u t a viewpoint guiding t h e
legislator or law-implementing agency which these want t o apply in the course
of their legislative or law-implementing activities.
The principles of law, therefore, are in t h e closest connection with t h e
social and economic order, with t h e superstructure t o which they belong
and, as t h e rules of law in general, express t h e will of t h e ruling class.
The principles of socialist and capitalist law, as a m a t t e r of course, differ
considerably f r o m one another, as they serve different social classes and aims.
This, however, does n o t p r e v e n t t h e m f r o m employing, for instance in t h e
d o m a i n of the legal t e c h n i q u e or of t h e procedure, similar, or even identical
solutions as far as t h e i r o u t w a r d a p p e a r a n c e and their form of manifestation
goes. 40 Consequently, t h e r e is no essential obstacle in t a k i n g t h e m into con-
sideration when settling questions arising between socialist and capitalist
states.
The question will be much more perspicuous if, i n s t e a d of the whole
realm of law, we focus our attention t o t h e field of a single branch of law.
T h e scholars of t h e law of procedure, for instance, h a v e established several
principles of t h e civil procedure which "show the w a y t o t h e whole course
of the proceedings". Such are the principle of equality between the parties,
t h e principles of t h e two-sided hearing, t h e objective (material) justice, t h e
exhaustive investigation of the case, t h e expedition of proceedings etc.
These m e a n t h a t in t h e opinion of t h e legislator the rules of t h e law of proce-
d u r e are t o be d r a f t e d a n d applied in such a way t h a t t h e civil proceedings
should lead to good results as quickly as possible, between parties having
t h e same rights, a f t e r b o t h being heard, in conformity with the objective
justice a n d with t h e i n n e r conviction of t h e judge f o r m e d on the ground of
t h e appreciation of all facts.
40
" I t is evident — wrote T. S Z A B Ó in one of his studies ( J o g t u d o m á n y i Közlöny,
1953. no. 1. p. 4) t h a t t h e socialism in the same w a y as it utilizes t h e c o m m o d i t y product ion
a n d as in it t h e law of v a l u e is effective, so a n d precisely for t h i s reason, it also p u t s to.
use t h e old law, b u t , let u s a d d immediately: only t h e f o r m of t h e old l a w . " A p a r t of t h e
principles of law existing i n t h e various legal systems does n o t express t h e content, t h e
substance of t h e law, but only its formal side, a n d , therefore, it is also possible t o reveal
some — on t h e f o r m a l side — common principles of law in t h e m u n i c i p a l law of s t a t e s
h a v i n g different legal s y s t e m s .
 The General Principles of Law Recognized by Civilized Nations 19

These principles, however, are very often not fixed b y the legislator
and n o t stressed by him in the text of t h e indes of law (at least not all these
principles) but it is the science which, on t h e ground of t h e analysis and com-
parison of the various rules of law and dispositions of detail, establishes t h e
viewpoints guiding t h e legislator's work and determines t h e general norms
inspiring the connected rules of law which constitute a bigger unity. T h e
situation is the same in the domain of t h e law of criminal a n d s t a t e administra-
tive procedure. I n general it may be laid down as a fact t h a t in the field of
t h e procedural laws the problem of t h e basic principles is more elaborated
t h a n in relation of t h e material rules of law, evidently, because the basic
principles of procedure can be established with more ease t h a n the basic
principles of the material law. The material law attaches directly to the varied
conditions of life, whereas the law of procedure is connected with the condi-
tions of life — as a rule — only indirectly, and through t h e material law. I t is
more difficult to generalize the variety of the conditions of life and to syste-
matize their complexity by the help of some specially chosen connecting prin-
ciples, nevertheless it can be done and t h e general part of t h e civil law and of
t h e material criminal law furnishes m a n y instances to prove this possibility.
The legislator often fixes expressis verbis in his work of law-making t h e
viewpoints which guide him, sometimes however he does it tacitly and t h e n
lie follows these viewpoints consciously, in other cases, however, only instinc-
tively. The law-making is always a conscious activity and particularly in t h e
socialist society which, with full knowledge of the objective laws of evolution,
systematically builds up and forms its economic and social order. On this
occasion, however, we have to take into account the legislation of other systems,
too, where sometimes a very long process is necessary for t h e crystallization
of the various guiding viewpoints.
In effect, if t h e legislator expressly fixes his viewpoints, the words of
the introductory p a r t or the text of t h e rules of law give information enabling
to determine t h e principles of the various branches of law. 41 If. however, this
is not the case, it is t h e task of the jurists to deduce and to establish the guiding
a n d leading viewpoints, i.e. t h e general principles of law, b y generalizing t h e
concrete provisions of the rules of law or of the branch of law in question.
In every case, however, a sharp difference must be m a d e between the
political aims (political or politico-legal principles) proclaimed and professed
by t h e legislator on one side, and t h e viewpoints already laid down in t h e
41
Chapter I of t he Cliartor of t he U n i t e d N a t i o n s under t h e t i t l e : " P u r p o s e s a n d
P r i n c i p l e s " s u m m a r i z e s t h o s e basic v i e w p o i n t s b y which the U n i t e d N a t i o n s were guided
in d r a f t i n g t h e provisions of t h e C h a r t e r . Article 2 lays down t h a t " t h e Organization
a n d its .Members, in p u r s u i t of t h o purposes s t a t e d in Article 1, s h a l l a c t in accordance
w i t h t h e following principles". This Article e n u m e r a t e s the principles of t h e f u n c t i o n i n g
of t h e Organization. By s t a t i n g tho " p r i n c i p l e s " of t h e Charter, t h o p u r p o s e s a n d principles,
t h e provisions of Articles 1 a n d 2 cannot bo s h a r p l y separated f r o m one-another. See
U N C I O , Doc. 1006. (English) 1/6 J u n e 15, 1945. Documents, vol. VI. p p . 16—17.

2*
20 Cr. Herczegh

provisions of the positive rules of law, on the other, t h a t is to say, from t h e

principles of law in t h e proper sense of the term. By washing away the limit
existing between t h e m , we would abandon the safe ground of positive law a n d
would get erroneously t o the swamp of attractive speculations, the danger
of which is considerable precisely in t h e domain of international law.
The limit between natural and positive law substantially coincides with
t h e line of demarcation between the political principles and the principles of
law. As far as the other side of the question is concerned, although the abstrac-
tions originally merely of a scientific character and validity, very often became
the legislators' openly proclaimed viewpoints, yet their value and importance
is no more than t h a t of t h e positive laws on which t h e y rely. The principles
of law are always principles of the positive law, formulating in a general a n d
comprehensive way t h e concrete dispositions of the positive law.
This formulation always depends on numerous conditions. If the legisla-
tor himself enumerates t h e basic principles he does so in order to primarily
follow political objectives. If on the contrary a scientific test is in question,
t h e formulation is influenced and sometimes directly determined by various
theoretical considerations, tendencies, a n d systems. As a matter of course,
the viewpoints of t h e international legislation vary, sometimes driven by t h e
requirements of the general social evolution they do so very quickly, and p a r t
of these viewpoints is not officially declared by t h e states. Consequently,
a subsequent scientific deduction may never claim completeness and positivitv.
It is, however, without doubt t h a t t h e general principles of international
law too mean the generalization of concrete international rules of law. I n t h e
course of regulation of the relations existing between t h e international law-
making factors, i.e. between the states, guiding viewpoints appear in the form
of principles of law which are openly declared in the preamble or in the t e x t
of t h e treaties, or which are results of scientific abstractions accomplished on t h e
ground of rules manifesting t hemselves in the practice. T h e principles of interna-
tional law are also principles of the positive law. The political programs and t h e
various scientific theories have to be excluded from the scope of our investiga-
tion here just as well as in the other fields of law. Here, too, we can only
a t t r i b u t e a subordinate role to them serving the interpretation of the treaties.
Accordingly, we have to look for t h e general principles of international
law — let us recall t h e definition given by the P e r m a n e n t Court of Internatio-
nal Justice in the L o t u s Case — in t h e material of the international treaties
and international customary law and these principles m a y be established by
way of generalization of their provisions. 42 There is no principle of law which

42
Consequently, Scelle is right when he identifies t h e g e n e r a l principles w i t h t h e
m o s t general p a r t of t h e c u s t o m a r y law, but only with t h a t a d d i t i o n t h a t the rules of
t h e i n t e r n a t i o n a l treaties h a v i n g a universal effect a n d a general c o n t e n t , too, form a p a r t
of t h e general principles of i n t e r n a t i o n a l law.
 The General Principles of Law Recognized by Civilized Nations 21

would stand apart from the material of a given branch of law or legal system;
all branches of law and legal systems respectively, consist of the totality of rales
appearing in a definite form.
2. The notion of the source of law is used in jurisprudence in two different
meanings. It means t h e legislative factor or factors respectively, on the one
hand, and the forms of appearance of the rules of law on the other. Bourgeois
jurisprudence restricts the question of the law-making factors, — of t h e
so-called material source of law — to the organs of t h e state empowered to
create the rule of law, i.e. the head of state, the parliament, the council of
ministers, etc. On t h e other hand, socialist jurisprudence based on Marxism —
Leninism starting f r o m the fact t h a t the law is a phenomenon belonging to
t h e scope of the superstructure, t h e formation and character of which is deter-
mined by the base, i.e. the economic order of the given society, considers as
the source of law the material conditions of the life of the society. "In t h e
social production of their life — Marx writes — the people enter into definite,
necessary relations, into relations of production independent of their will,
corresponding to a definite degree of development of their material forces.
The totality of these conditions of production constitute t h e economic struc-
t u r e of the society on which the legal and political superstructure is based
and to which definite social forms of conscience correspond." 4 3 The content
of t h e social conditions, consequently of the rules of law, too, are determined
by the material conditions of the life of the society. This is the standpoint
assumed by the Soviet jurists in respect of the material source of law, whilst
"in a special legal sense . . . they mean under source of law the particular
legal form in which the rule of law appears". 4 4
A similar standpoint is assumed by the representatives of the Hungarian
political and legal science who mean by source of law those various forms in
which the rules of law manifest themselves. The problem of the source of law,
however, amounts t o much more than merely examining these forms, a n d
exactly for this reason the theory of law passes beyond t h e m looking for t h e
real forces developing the forms, and finds them in the conditions of production
determining the will of the class possessing the political power. The effect of
the conditions of production produced on the content and the form of appear-
ance of the rules of law becomes effective through t h e will of the class.
Accordingly, the source of law — we refer to the well-known statement of t h e
Communist Manifesto 45 — is the will of the ruling class determined by t h e

43
M A R X , To the Criticism of the Political Economy (in H u n g a r i a n ) , Budapest ,
Szikra, 1953. p. 4.
44
M . A . A R Z H A N O V , Theory of State and Law, University T e x t - b o o k , T a n k ö n y v k i a d ó ,
1951. ( H u n g a r i a n t r a n s l a t i o n ) p. 290.
45 " Y o u r right is only t h e will elevated t o law of y o u r class." M A R X — ( E N G E L S ,
Communist Manifesto, B u d a p e s t , Szikra, 1948. p. 40 ( H u n g a r i a n edition).
22 Cr. Herczegh

conditions of production which, however, has to manifest itself in a peculiar

f o r m through t h e organs of the s t a t e — elevated to t h e will of t h e state. 1 0
All t h a t applies, of course, t o international law, too, where t h e expression
" s o u r c e " has similarly a double meaning: "it means t h e force creating inter-
n a t i o n a l law, f u r t h e r m o r e t h e mode or form of manifestation of t h e interna-
t i o n a l rule of law." 4 7 T h e chief question of t h e sources of international law,
t h e r e f o r e , as a m a t t e r of fact is divided i n t o two groups of problems. The first
o n e includes the questions relating to t h e social conditions determining the
c o n t e n t s and the order of formation of t h e international rules of law, in short,
t h e questions connected with the basis of international law, whereas the second
o n e examines those various forms in which t h e norms constituting t h e totality
of international law appear. 4 8
A f t e r these preliminary remarks let us face t h e question: are the
general principles of law independent sources of international law? Beside
t h e treaties and t h e custom should t h e general principles of international law
be distinguished as a source of law equivalent to the former two (or of a sub-
s i d i a r y character)? T o this question we h a v e to give a d e f i n i t e answer in the
negative. The legal sources of law or otherwise the sources of law in t h e techni-
cal sense of the t e r m are forms of manifestation of the rules of law; international
law, conversely, is t h e result of the c o m m o n consent of states, which m a y be
e x p r e s s or tacit a n d , accordingly, a p p e a r s in t h e form of an international
t r e a t y or of the international c u s t o m a r y law. Another t y p e of t h e common
c o n s e n t of states c a n n o t be conceived. I n whatever specific form t h e inter-
n a t i o n a l conventions are concluded (in t h e form of a t r e a t y , declaration, con-
c o r d a t , memorandum, exchange of notes, etc.) a n d whatever v a r i e t y the custom-
a r y rules of law present, t h e essence, t h e common consent of t h e states is
a l w a y s the same. T h e common consent of t h e states cannot come into being
in t h e form of principles of law, such a form does not exist, nevertheless a
c o n v e n t i o n may possibly formulate t h e basic principles of t h e international
legal relationship of t w o states, i.e. it m a y contain exclusively principles of law.
I n the field of national law, whether t h e civil, criminal or s t a t e administra-
t i v e procedure are concerned, it would be useless t o look for t h e basic principles
a m o n g the sources of law of the branch of law in question, a n d still less could

4fl
"Those specific f o r m s in which t h e will of t h e ruling class h a s t o be expressed in
o r d e r t o make of it a l a w , are called in socialist jurisprudence sources of law in a f o r m a l
s e n s e . " L . S Z A M E L , Sources of Law, B u d a p e s t , Közgazdasági és J o g i K i a d ó , 1958. p. 7.
47
F . I . K O Z H E V N I K O V , Chapters from International Law, Moscow, Gosyurizdat,
1947. H u n g a r i a n m a n u s c r i p t t r a n s l a t i o n , Vol. I, p. 7.
44
K o z h e v n i k o v a n d K o r o v i n consider t h e i n t e r n a t i o n a l t r e a t y a n d t h e custom
a s sources in a legal sense of i n t e r n a t i o n a l l a w (KOZHEVNIKOV, op. cit. vol. I . p. 3(1.;
K O R O V I N , op. cit. p. 15). K r y l o v points out t h a t i n t e r n a t i o n a l law has, a p a r t f r o m t h e
t r e a t i e s a n d t h e c u s t o m , o t h e r sources a n d a m o n g these he m e n t i o n s t h e n a t i o n a l law,
t h e g e n e r a l principles of law a n d t h e resolutions of t h e i n t e r n a t i o n a l organizations (KRY-
L O V , op. cit. p. 444).
 The General Principles of Law Recognized by Civilized Nations 23

it be maintained t h a t they occupy a prominent, distinguished place in the

hierarchy of tho sources of law. In the law of civil procedure the basic principle
of the equality of the parties does not preclude the fact t h a t the onxts probandi
falls on the plaintiff and notwithstanding the principle of rapidity no judgment
by default may be passed in familv-law proceedings, etc. I t is, however, not
necessary to venture to the domain of civil procedure. The United Nations
Organization is based on the sovereign equality of its members, yet the prin-
ciple of sovereign equality does not exclude that the Great Powers shall dispose
of certain additional rights, the so-called right of veto.
The principles of law, insofar as they arc not expressly declared by the
states in the text of the treaties concluded bv them, are established by the
science of international law on the ground of the existing positive rules of
law. Their taking out of the material of the treaties and the customary law is,
whatever might be their scientific foundation, not more than a scientific
a t t e m p t having no legal significance at all.49 All general principles of inter-
national law may be found without exception in international treaties and
customary rules or at least they may be traced back thereto. 5 0 If this does
not succeed, the principle in question is not a principle of law but a political
principle or a mere item of programme.
The independent character or the force of the general principles as a
source of law is based by some jurists on the fact that the general principles
of international law are very often referred to in diplomatic notes. "It is a
49
László Buza e m p h a t i c a l l y stresses t h a t " t h e general principles of law f o r m a n
i n t e g r a l part of t h e posit ive i n t e r n a t i o n a l law, t h e y manifest t h e m s e l v e s in the provisions
of t h e written law established b y t h e t reat ies or in t h e rules of t h e i n t e r n a t i o n a l c u s t o m a r y
law, a n d beside t h e m t h e y cannot be considered as separate sources of l a w " . (BUZA, op. cit.
p. 292.) Their souroe-of-law c h a r a c t e r is d e f i n i t e l y refused also b y t h e Polish M u s k a t :
" T h e elementary principles a n d n o t i o n s of i n t e r n a t i o n a l law do not m e a n a p a r t i c u l a r
source of law. Their binding force anil t h e i r s t a b i l i t y is based on t h e treaties including
n e a r l y all states a n d on t h e generally recognized c u s t o m . " (See M u s k a t , t h e contribution
of Marian Muskat t o t h e discussion on t h e questions of t h e t h e o r y of i n t e r n a t i o n a l law,
Sovetskoe Gosudarstvo i Pravo, 1955. No. 3, p p . 105—108.)
50
" . . . May we say, for i n s t a n c e — asks György H a r a s z t i — t h a t one of t h e
m o s t i m p o r t a n t general principles of i n t e r n a t i o n a l law, the principle of non-intervention,
h a s become a p a r t of t h e c u s t o m a r y law in consequence of a l o n g a n d p e r m a n e n t practice?
Well, it is a well-known f a c t t h a t t h e whole m o d e r n history of t h e bourgeois states is full
of interventions so t h a t t h e practice would j u s t i f y n o t tho principle of non-intervention
b u t , on t h e contrary, t h e principle of i n t e r v e n t i o n . N o t w i t h s t a n d i n g , t h e r e is no d o u b t
t h a t t h e non-intervention is a principle of i n t e r n a t i o n a l l a w . " (HARASZTI, op. cil. p. 19.)
W i t h t h i s remark, H a r a s z t i wishes t o s e p a r a t e t h e general principles of i n t e r n a t i o n a l
law f r o m the i n t e r n a t i o n a l custom a n d desires t o prove their i n d e p e n d e n t n a t u r e as a
source of law. However, 1 do not consider his a r g u m e n t a t i o n as convincing. It is a f a c t
t h a t t h e bourgeois s t a t e s very o f t e n intervened in each other's i n t e r n a l affairs, t h e y did
so, however, not on t h e aut hority of t h e rules of i n t e r n a t i o n a l law b u t in defiance thereof,
a n d t h e y tried t o p r e s e n t their a c t s of i n t e r v e n t i o n so t h a t these a c t s should not be quali-
fied as intervention, or t h e y tried t o j u s t i f y t h e m otherwise. However, in respect of t h e s e
a c t s of intervention, t h e r e had consolidated t h e conviction long ago t h a t all i n t e r v e n t i o n s
in m a t t e r s which a r e essentially w i t h i n t h e domestic jurisdiction of a n o t h e r stato, a r e
p r o h i b i t e d and — wit h o u t w a n t i n g t o palliate t h e diplomatic p r a c t i c e of t h e 150 years
p a s t — we m a y s t a t e t h a t this principle was in general, nevertheless, offective. The f a c t
t h a t a rule of law is several t i m e s violated does not provo its non-existence.
24 Cr. Herczegh

general principle of international law t h a t . . ." "The conduct of State X is

contrary to the general principles of international law." This, however, only
means that a certain conduct is prescribed not by a single positive rule of inter-
national law b u t by a whole group or system of its rules, or that, in the second
case, the conduct of t h e state in question violates not a single rule b u t a whole
group of the international norms.
Accordingly, f r o m all this we may now draw the decisive conclusion in
respect of the interpretation of Article 38 of the Statute. T h e general principles
of law referred to in clause с) do not mean the general principles of international
law, which anyway cannot be considered as an independent source of inter-
national law. The general principles of international law are incorporated b y
t h e international treaties and the international customary law in such a way
t h a t , like the flesh on the bones, they are deposited on t h e framework of t h e
principles of law and fill with life the viewpoints formulated by them with
more or less abstraction. 5 1 The principles of law are connected through t h e
det ailed dispositions of the treaties and of the customary law with the every-day
practice of the international life.
3. If, however, clause c) of the S t a t u t e does not refer to the general prin-
ciples of international law, what kind of norms does, then, this much dis-
cussed provision mean? In order to decide this question we have to examine
f i r s t of all whether, in the course of the settlement of international disputes,
such general principles of law are applied which do not belong to international
law, i.e. are independent of the interstate agreements and of the practice
developed between t h e states.
There is no d o u b t about it t h a t the conditions of life within the state
are much richer, much more varied and diversified t h a n the international
relations, accordingly, the national law too is more complicated and its system
more differentiated t h a n t h e international law. Consequently and necessarily
much more, and more developed, principles of law may be found in the realm
of home laws — already by reason of the plurality of the positive rules and t h e
differentiation of t h e system of internal law, than in public international law.

51
"There are principles — writes László B u z a — w h i c h were yet unable t o crys-
tallize, a n d live for t h e t i m e being in i n t e r n a t i o n a l law as n o r m s h a v i n g the c h a r a c t e r
of a program . . . These n o r m s f o r m u l a t e c e r t a i n general principles of conduct for t h e
s t a t e s , without establishing subjective rights a n d legal duties enforceable in t h e concrete
case by legal proceedings." (BUZA, The Principles of Legality and Justice in International
Law, Acta Universitatis Szegediensis, Acta J u r i d i c a et Politica, T o m . I I I . Ease. 1. Szeged,
1957. pp. 19 a n d seq.) H e compares t h e n o r m s having the c h a r a c t e r of a program t o a
f r a m e w o r k , on which concrete rules of law are deposited. A p a r t of t h e norms called by
h i m n o r m s having t h e c h a r a c t e r of a p r o g r a m belong t o the g e n e r a l principles of inter-
n a t i o n a l law, n o t w i t h s t a n d i n g t h e identification of t h e general principles of i n t e r n a t i o n a l
law with the norms called by academician B u z a n o r m s having t h e c h a r a c t e r of a p r o g r a m ,
is n o t possible. I n effect, t h e general principles of international l a w — a t least for t h e
m o s t p a r t — were p r o v i d e d b y t h e concrete rules of i n t e r n a t i o n a l law with a p p r o p r i a t e
sanctions.
 The General Principles of Law Recognized by Civilized Nations 25

In settling some more complicated questions arising in the course of t h e

development of international law and of the history of international arbitra-
tion, in which the positive international rules of law did not furnish a basis
for a reassuring and satisfactory decision, the judges of international courts
have drawn their decision from the more developed system, principles a n d
theory of the national law. This may be proved by concrete examples taken
from the long history of international arbitration. 5 2
Upon the general principles of law was based, for instance, the judgment
passed in 1861 in the case Yuille, Shortridge a n d Co. between Great Britain
and Portugal declaring t h a t "according to the common law the accumulation
of t h e interests missed ceases when it reaches the sum of t h e capital . . ."
("le droit commun" — says the t e x t ; it is evident, however, t h a t the translation
of the term "common law" does not mean the specific Anglo-Saxon customary
law b u t the concordant provisions of the civil law of the various states).
The award in the case of Cestus and other ships between Argentine and Great
Britain on August 1, 1871 laid down: " I t is a principle of the universal juris-
prudence t h a t who makes use of his right, does not injure anybody else." 53
The statement of the decision passed between France and Venezuela on Decem-
ber 3d, 1896 in the Fabiani case is also very remarkable, according to which
" b y examining t h e basic principles of the law of nations relevant to the déni
de justice, t h a t is t h e common rules proclaimed in the majority of the legal
systems or by the doctrine, we have to come to the conclusion t h a t the déni
de justice not only means t h a t the court refuses to exercise its functions,
namely to pass sentence on the actions submitted to it, b u t also the delay in
the delivery of the judgment". The text quoted is, incidentally, a very good
example to prove how much misunderstanding may follow from the use of
some expressions. The droit des gens, as the judgment emphasizes it partic-
ularly, does not mean the law of nations but t h e totality of rules corresponding
to the Roman ius gentium, the common concordant elements of the law of
the various nations, of the various states. The terms droit commun, droit des
gens, universal jurisprudence are constantly returning formidas in the arbitral
awards and they m a y possibly mean not only t h e international law, but also
the common elements of national law to be found in the legal systems of several
states, and in the majority of cases it is only a f t e r a thorough examination
t h a t it may be decided which principles are, properly speaking, at issue.
T h a t is one of the reasons why the principles of international law are o f t e n
interwoven with the principles of national law, a fact which can be constantly

52
The following legal cases are cited on t h e basis of t h e w o r k : V E R D R O S S , Die
Verfassung der Völkerrechtsgemeinschaft, pp. 57—59.
53
This p h r a s e t a k e n off t h e c o n t e x t of t h e j u d g m e n t is r a t h e r liable to discussion,
since — a p a r t f r o m t h e use of rights — various cases a n d prohibitions of the abuse of
rights are known; but in t h i s c o n t e x t it is not t h e j u d g e m e n t on t h e m e r i t s of t h e case
we are interested in, b u t t h e fact t h a t it refers t o universal jurisprudence.
26 Cr. Herczegh

observed. One tiling, however, is certain that, by the general principles of law
often, moreover if they are referred to in arbitral awards, in the overwhelming
m a j o r i t y of cases, t h e principles of national law are meant. Doubtless, this
was m e a n t by the statement contained in the arbitral award passed in the
legal case concerning the termination of the concession Laurenço Marques,
according to which " t h e Portuguese Act does not contain any specific provi-
sions in respect of t h e decisive and relative points which would differ from
t h e general basic principles of the common law of modern nations". I n the
practice of the P e r m a n e n t Court of Arbitration at The Hague we also find
references to the principles of home law. I t declared on October 14, 1902:
" . . .the same principle (res iudicata) is to be applied even more in the
international a r b i t r a t i o n " and on November 11 it laid down t h a t " i t would
be contrary to equity if we presumed a more severe responsibility in respect
of a debtor-state t h a n t h a t incumbent on a private debtor in a considerable
p a r t of t h e European legal systems".
We could go on enumerating t h e examples, b u t it should be evident
already from what we said that on t h e basis of customary law, in t h e course
of t h e 19th and 20th centuries, t h e arbitral awards did refer in numerous
cases to principles generally accepted in the internal legal systems of the
various states, i.e. it is evident t h a t t h e rule of international customary law
had authorized the courts of arbitration to rely, beside the rules of inter-
national treaties and of international customary law on such norms, on such
principles which are t o be found in a considerable part of the national laws
of t h e states and which are not norms of public international law. T h e Statute
of t h e Permanent Court of Arbitration did nothing else b u t dress into a con-
ventional form the practice previously based on customary law.
Accordingly, there are certain principles of national law — t h e prin-
ciples of law generally recognized by civilized nations — which were already
applied or called to help respectively, b y the international courts of arbitra-
tion on the ground of customary law in t h e last century, for the settlement of
international disputes. These legal principles of internal law are of course no
sources of international law. They constitute for the international law an
alien b o d y of rules, — although their utilization, their application is effected
on t h e ground of a rule of law of international law — for they are not results
of t h e common consent of states, a n d generally and as a rule do not regulate
t h e legal relations existing between t h e states. The national law only "helps
o u t " t h e judges of the Court of International Justice in their work by providing
a set of rules which are applicable in a given case, beside the international
rules of law, respectively in the absence of such, in t h e settlement of disputes.
Notwithstanding, t h e y may not be accepted as a subsidiary source of law
because this would n o t comply with t h e concept of the source of law exposed
above and generally adopted by socialist legal literature.
 The General Principles of Law Recognized by Civilized Nations 27

Consequently, it is these national legal principles which are referred to in

clause c), par. 1 of Article 38 of the Statute. This standpoint, however, is not
the result of theoretical considerations based on the analysis of concepts
— although the elucidation of concepts is absolutely necessary for coming
to the right final conclusion — b u t relies on t h e s t u d y of the history a n d
preparatory material of Article 38 as well as on t h e international practice.
The members of the Committee in the past on the ground of various theoretical
considerations took notice of the argumentation of Phillimore according
to which here principles followed in foro domestico were at issue. The history
of the amendment proposed by Chile at the San-Francisco Conference also
proves t h a t the creators of the S t a t u t e did not w a n t to change the meaning
of clause 3 and с ), respectively. As far as the international courts are concerned,
these motivated in several cases their decision by referring to basic principles
crystallized in the internal law and the existence of which may be stated pri-
marily in internal legal systems.
There is no d o u b t about it t h a t the general principles of the internal
law of the states very often cannot be distinguished from the general prin-
ciples of international law. The bona f ides, the res iudicata, the ne bis in idem,
etc. are equally principles of international law and of most national legal
systems. What, however, is a general principle of international law, can
already be found in t h e material of norms referred to in clauses a) and b),
as a consequence, clause c) may only refer to such principles which cannot
be disclosed among the rules of public international law. We cannot assume
t h a t t h e creators of the »Statute wanted to formulate such an enumeration,
or establish an enumeration the clauses of which refer several times to t h e
same group of norms, and t h a t at the same time t h e y intended to omit a ma-
terial of legal rules undoubtedly applied in international practice.
The importance and significance of the general principles of international
law are not at all diminished, on the contrary increased if we emphasize t h a t
they are located in t h e material of international treaties, and of international
customary law respectively, and t h a t in consequence t h e y do not form an inde-
pendent source of law. Incidentally, this is stressed by such eminent represent-
atives of Soviet jurisprudence as Korovin, Kozhevnikov, and Tunkin. To be
sure, according to numerous Soviet jurists clause с) refers to the general prin-
ciples of international law. The divergent conception, however, which looks
in t h e Statute for t h e principles of national law and is professed by the present
study too, does not constitute an opposition of principle with the former
standpoint. The Soviet authors, too, have emphatically stressed the effect of
internal law on international law. The rules and institutions of the internal
law of the states — they point out — may become p a r t of international law
if they affect the field of international relations a n d are recognized by other
states. If this is t r u e — we may add — in respect of the internal law of one
28 Cr. Herczegh

single state, it is even more true in respect of the general norms equally existing
in t h e national laws of several states a n d one — tacit — way of their inter-
national recognition could be their repeated application by international
courts. According to t h e interpretation found correct by me, clause с) of par.
1 of Article 38 refers to this processus.
4. When should one of the generally recognized principles of national
law f i n d application in international law? The answer seems very simple at
t h e f i r s t glance. I t m a y be applied if there is no rule of international conven-
t i o n a r y or customary law regulating t h e case in question, i.e. if a gap of inter-
national law has to be filled by other rules of law.
T h e very complicated and much discussed problem of t h e gap in law
cannot be exposed in the framework of this study. For t h e moment I only
allude t o the fact t h a t the possibility of t h e gap in law arising at t h e moment
of t h e promulgation of an Act of P a r l i a m e n t and in the course of t h e further
development is recognized by the socialist theory of law.54 When speaking of
a gap in law, it has — in general — in mind a written, codified legal system,
for t h e socialist law b y virtue of its n a t u r e is primarily a written law in which
t h e custom plays only a subordinate a n d a gradually fading role. In inter-
national law the situation is different in spite of the fact t h a t nowadays it
also regulates, in a considerable degree, legal relations existing between socialist
states. Most of the legal material is still not codified and mainly consists of
c u s t o m a r y rules. T h e question of t h e g a p in law, therefore, is p u t in another
form in t h e domain of international law, being to a large extent of a customary
character, than in a codified legal system. 5 5
There are legal cases which cannot be decided exclusively on t h e ground
of t h e positive international law w i t h o u t having recourse t o analogy. For in-
stance, by virtue of an international rule of law the responsibility of a state may
be established for an injury caused t o another state, consequently t h e former
s t a t e m a y be condemned to damages, b u t there is no rule in international law
providing for the measure of the damages. According to the strict normativist
s t a n d p o i n t , in this case the court o u g h t to condemn to damages t h e state in
question but should be barred from establishing the amount of t h e damages.
This, of course, would lead to an a b s u r d result and would turn t h e institution
of responsibility for damages into an e m p t y formality. The international courts
of arbitration have surmounted these difficulties: the decision passed in the
Fabiani case between France and Venezuela on December 30, 1896 stated:

54
I. S Z A B Ó , A polgári törvénykönyv tervezete és a jogértelmezés (The Draft Civil
Code and the Interpretation of Law), C o m m u n i c a t i o n s of the Social-Historical Class, I l u n g .
A c a d e m y of Sciences, Vol. VIII. No. 3., Hp. 1958. p. 205.
55
Recently K . NAGY, m a d e an a t t e m p t t o solve t h e problem of t h e g a p s in inter-
n a t i o n a l law, in his work: Az analógia és a joghézag kérdései a nemzetközi jogban (Problems
of Analogy and Legal Gaps in International Law) — Legal studies a t t h e 50th a n n i v e r s a r y
of László Buza's e d u c a t i o n a l activity, Szeged, 1958. p. 205 a n d seq.
 The General Principles of Law Recognized by Civilized Nations 29

" . . . in modern law the perpetrator of an aquilinus tort is in principle bound

to redress all losses which may reasonably be taken into account as a direct
or indirect consequence (damnum emergens and lucrum cessans) . . . " An arbi-
tral award passed on August 29, 1902 in a ease between t h e United States of
America and Russia laid down: " T h e general principle of civil law by virtue
of which the damages must recompense n o t only the loss suffered but also the
profit missed, may be applied in international legal disputes, too." 5 6
In such and analogous cases the international courts must have recourse
to t h e more developed internal law a n d settle the legal dispute in a reassuring
way, by way of analogy. The analogy — according to L a u t e r p a c h t — is the
identity or similarity of proportions, 5 7 a n d in the domain of the application
of law it is the logical operation in the course of which the judge, in the absence
of a concrete rule of law, searches for a rule of law relevant to a similar case,
and applies it directly or with the necessary modification.
However, what is the measure a n d proportion of t h e possibility of the
application through analogy of the principles of municipal law? I n what
circle can the general principles of internal law be applied in deciding the inter-
national legal eases? Is it the general reception of the generally recognized
principles of municipal law which is a t issue, or only t h e application in some
cases of some principles of law by analogy? In our opinion, a principle of
national law — however generally recognized — can not be applied automat-
ically to settle international legal cases. T h e mere fact t h a t a rule of law forms
p a r t of the positive law in civilized states or in a considerable part thereof,
does not involve the existence of an international rule of law of a similar
content. Should a global international reception of the principles of inter-
national law ensue, this would have t h e result that the interstate character
of international law and the dualistic conception of the relation of the two
legal systems to one another could hardly be maintained. T h e internal laws,
through their generally recognized principles, would overwhelm the inter-
national law and in this way the latter would fall into a more or less subordi-
nate, respectively superposed relation t o the former. As a matter of fact,
the standpoint of the global reception is assumed by several authors, 5 8 essen-
tially by all those who regard the general principles of law recognized b y
civilized nations as the third independent source of international law. Accord-
ing to their argumentation the generally recognized principles of national
law bind in their entirety the states and thus they are f u n d a m e n t a l and
i m p o r t a n t factors of the a d j u s t m e n t and regulation of t h e interstate re-
lations.

56
V E R D R O S S , Die Verfassung der Völkerrechtsgemeinschaft, P. 59.
57
I I . L A U T E R P A C H T , Private Law Sources and Analogies in International Law,
L o n d o n , Longmans, 1927. p. 83.
68
E . R U C K , Grundsätze im Völkerrecht, Basel, Reinhardt A. G. 1946. p. 16 a n d seq.
30 Cr. Herczegh

This conception of the role of the principles of national law is, depending
on t h e scientific disposition of t h e authors, the consequence either of their
views professed in respect of the theory of international law, or of the (in my
opinion incorrect) generalization of international case law. Incidentally, this
generalization o f t e n determines their standpoint assumed in other, more
general, questions too. The practice of international courts, however, in our
opinion, does n o t authorize us to presuppose the global reception of the prin-
ciples of internal law, consequently neither the theoretical conclusions drawn
t h e r e f r o m can be regarded as well-founded.
I n effect, a judgment deciding a given case passed on the ground of t h e
principles of national law does n o t yet create in itself international law a n d
f o r this reason we cannot accept the standpoint, according t o which the gener-
ally recognized principles of law do not form a part of international law,
b u t become a p a r t thereof by means of their being applied by the court.
I n t h e course of o u r argumentation hereinbefore, we have repeatedly pointed
o u t t h a t international courts have not and cannot have legislative power.
T h e judgment is n o source of law, it is not t h e form of manifestation of t h e
rules of law; still in case of a constant repetition it may lead to the formation
of a new legal conscience and to a consistent practice, i.e. to the appearance
of a new rule of customary law. T h e judicial decisions, as clause d) of par. 1
of Article 38 emphasizes, are subsidiary means for the determination of rules
of law. The existence of a rule of customary law may be inferred among
o t h e r things a n d n o t in the last resort, from the judicial practice.
The role a n d importance of the so-called leading cases is very different
in t h e various legal systems. In t h e domains of law which are not at all, or
o n l y to a very small extent, codified, t h e leading cases, the judgments of
t h e courts are t h e most important and most discernible elements of the law.
T h u s , they have a particularly prominent place in t h e Anglo-Saxon legal
systems and this circumstance determines the main peculiarities of the Anglo-
S a x o n way of legal thinking. According to the conception prevailing in Great
B r i t a i n , in the various Dominions a n d in the United States the rule of law is
n o t h i n g else b u t a prophecy as to t h e decision the judge will pass in a given
case. As a matter of course, the standpoint of t h e English and American jurists
as a rule cannot b i n d and does not bind the international jurists. In con-
sequence, however, of the i m p o r t a n t p a r t played by Great Britain and t h e
U n i t e d States in international life, their legal conception influenced to a
large extent the development of international law and of t h e science of inter-
national law. T h e Anglo-Saxon judges of international courts in deciding t h e
legal cases and in t h e motivation of the judgments tried to enforce their legal
views and their legal conceptions. I t cannot be denied, therefore, t h a t in
international law consisting primarily of rules of customary law (although it
is n o t case law, or "judge-made l a w " according to t h e well-known English
 The General Principles of Law Recognized by Civilized Nations 31

expression), the leading cases have played a considerable role, especially in

t h e course of t h e last centuries.
T h e leading case is n o t a rule of law, a n d in itself, occurring once, it does
n o t y e t constitute c u s t o m a r y law, at least not according t o t h e continental
conception. If it comes u p repeatedly, several times, i.e. if one or more inter-
national courts in deciding concrete cases h a v e taken or will t a k e an identical
legal standpoint, this proves t h e existence of a rule of c u s t o m a r y law. Accord-
ingly, if the international courts in cases submitted to t h e m , in the interest
of filling in a gap of t h e law, apply a generally recognized principle of internal
law, t h e principle in question m a y become, through r e p e a t e d leading cases,
t h r o u g h judicial j u d g m e n t s in succession, a p a r t of international customary
law, i.e. of international law, a n d a f t e r w a r d s it becomes applicable as a prin-
ciple of international law. I n effect, t h e f r e q u e n t and consistent application
of a principle of national law leads to t h e formation of a legal conscience of
an appropriate content, in international law in consequence of which t h e sub-
jects of international law, t h e states a n d t h e i r organs may a f t e r w a r d s consider
the practice of t h e courts as t h e m a n i f e s t a t i o n of the i n t e r n a t i o n a l c u s t o m a r y
law. This transformation is a long, complicated process a n d it is properly
speaking nothing else t h a n t h e process of t h e formation of t h e international
c u s t o m a r y law. Consequently, t h e question t a k e n up is essentially t h a t of t h e
f o r m a t i o n of t h e c u s t o m a r y law, a n d t h e answer depends on t h e answer t o
a n o t h e r question, viz. how t h e legal conviction comes i n t o existence, how
much time and how f r e q u e n t an application is necessary t o p r o v e the existence
of a p e r m a n e n t practice which, according t o the general opinion, are t h e
principal criteria of the c u s t o m a r y law.
T h e history until now of the international justice proves t h a t certain
elements of the national laws have been streaming through, in the process
a l r e a d y outlined above — nearly unnoticed b u t continuously — into t h e public
international law. I n t e r n a l law is, without d o u b t , technically more developed
t h a n international law. The legislator's will has much b e t t e r functioning and
m u c h more developed institutions within t h e state t h a n in international rela-
tions, where t h e b i r t h of a rule of law presupposes t h e common consent of
two or more sovereign factors of equal rights. As a consequence, t h e inter-
national legislation is m u c h less d y n a m i c a n d keeps level with much more
d i f f i c u l t y with t h e continuously changing conditions of life t h a n does t h e
national law. Doubtless, it h a p p e n s also in national law t h a t t h e law grows
rigid in consequence of t h e resistance of t h e ruling class in power and anxious
a b o u t t h e loss of its power, a n d instead of helping the development of t h e
relations of production and through these the forces of production, directly
hinders it, especially if the formation of a new social and economic system is
imminent. In international law, however, t h e danger of t h e stiffening of law is,
in consequence of t h e well-known difficulties of the t e c h n i q u e of legislation,
32 Cr. Herczegh

much more considerable and occurs here frequently even within one historical
period of a single economic-social system. The so-called crises of international
law are nothing b u t signs of the fact t h a t t h e rules of law in force are incapable
to regulate the international relations between the states in an appropriate way.
This circumstance is neither regrettable nor fortunate, but a necessary
consequence resulting from the nature and structure of international law.
International law, in a technical sense, is a primitive law, of an inferior char-
acter t h a n the overwhelming majority of the various s t a t e legal systems.
Within the state t h e centralized, organizationally united legislative power is
able to regulate t h e conditions of life in a more comprehensive and intensive
way, while a rich judicial practice permits of a more differentiated interpreta-
tion of the rules of law.
Accordingly, t h e connection between the two legal systems, the inter-
national and national laws is realized and effective in t h a t way that the more
developed legal system has a stimulating effect on t h e development of t h e
relatively more primitive law. The application of t h e generally recognized
principles of law, t h e analogies taken from the national laws enrich the arsenal
of t h e international courts and raise it up to the level of t h e technically more
developed state courts. They enable t h e m to discover various hidden rules
of the international customary law and the more differenciated exposition
of already applied rules. This is — as we see it — the essence of the role played
by t h e principles of national law in the field of public international law.

IV.

Summing up w h a t has been said we may state t h e following:

1. In respect of t h e nature and role of the general principles of law
referred to in clause c ) of paragraph 1 of Article 38 of the Statute of t h e
International Court we meet divergent and contradictory views.
2. The general principles of international law are located in the material
of the international treaties and of the international customary law. T h e y
cannot be separated a n d distinguished from them with reassuring legal preci-
sion. Clause c), therefore, cannot refer to the general principles of inter-
national law.
3. By formal or technical sources of law we understand the forms of
manifestation of t h e international rules of law. The general principles are not
independent sources of international law.
4. The international courts had referred, in t h e past, when passing
decisions on the basis of the customary law, also to certain principles of t h e
national laws. The S t a t u t e turned this rule of customary law into a p a r t of
t h e written international law. The principles of the internal state laws are
 The General Principles of Law Recognized by Civilized Nations 33

n o t sources of international law, their role is t o develop, t o technically refine

- through the formation of new international customary rules — the m o r e
cumbersome a n d more rigid public international law.
All this, naturally, does not claim to be an exhaustive t r e a t m e n t , or even
less a solution, of t h e questions connected with t h e problem of the general
principles of law. T h e present s t u d y , which reflects t h e individual s t a n d p o i n t
of t h e author, tries t o join in the wide-spread scientific discussion which h a s
now been on t h e agenda for several decades, t h e reanimation of which m a y
exercise a favourable influence on the solution of other contested problems
of t h e Hungarian science of international law, too.

Les principes généraux de droit selon le statut

de la Cour Internationale
par

G. HERCZEGH

Suivant l'article 38 d u S t a t u t de la Cour I n t e r n a t i o n a l e la Cour doit a p p l i q u e r ,

e n t r e autres, «les principes généraux de droit reconnus p a r les n a t i o n s civilisées». L'essence
et la fonction de ces principes généraux suscitèrent b e a u c o u p do discussions dans la doc-
t r i n e du droit international, sans q u ' u n e thèse universellement acceptée pût en résul-
t e r . L e problème est en r a p p o r t avec la lutte pour la mise en oouvre des principes dé-
mocratiques et progressistes du droit international ot p o u r c e t t e raison il est digne d ' u n e
a t t e n t i o n particulière.
Le S t a t u t de la Cour I n t e r n a t i o n a l e repose sur celui de son prédécesseur, la C o u r
P e r m a n e n t e de J u s t i c e I n t e r n a t i o n a l e . Le S t a t u t de c e t t e dernière f u t élaboré p a r u n
c o m i t é de juristes composé de s a v a n t s éminents; ce c o m i t é consacra une a t t e n t i o n p a r -
ticulière au problème des normes juridiques que la Cour d e v a i t appliquer. On v o u l u t
éliminer d ' u n e p a r t la possibilité de ce q u e la Cour, en l'absence de normes j u r i d i q u e s
concrètes, p û t r e f u s e r do rendre justice et, d ' a u t r e p a r t , le d a n g e r de ce que la C o u r
b a s â t ses j u g e m e n t s sur des normes qui ne sont pas reconnues p a r les parties. C'est ainsi
q u e les principes g é n é r a u x do droit reconnus par les n a t i o n s civilisées f u r e n t insérés d a n s
le t e x t e d u S t a t u t . L o r d Phillimore, d o n t la manière de voir a p p a r a î t comme la p l u s
c o n v a i n c a n t e , a t t r i b u e à c e t t e expression le sons de principes f o n d a m e n t a u x c o n c o r d a n t s
des systèmes j u r i d i q u e s n a t i o n a u x .
A la Conférence de San Francisco, lors de la r é d a c t i o n d u n o u v e a u S t a t u t , on p a r l a
b e a u c o u p moins des diverses espèces des normes j u r i d i q u e s à appliquer. Il est vrai q u e
le t e x t e de l'article 38 f u t remanié, mais, selon l ' a u t e u r , les modifications n ' a p p o r t è r e n t
a u c u n changement a u sens de l'article.
E n ce qui concerne l ' i n t e r p r é t a t i o n de l'article 38, les opinions exprimées d a n s la
doctrine sont assez divergentes. Selon certains a u t e u r s , la notion dos «principes g é n é r a u x
de droit reconnus p a r les nations civilisées» doit ê t r e comprise d a n s le sens de principes
généraux du droit international; selon d ' a u t r e s , d a n s celui des principes concordants d e s
droits internes, c'est-à-dire n a t i o n a u x . 11 y a aussi d'opinions intermédiaires, selon les-
quelles les principes f o n d a m e n t a u x d u droit i n t e r n a t i o n a l et ceux des droits n a t i o n a u x
t o m b e n t également sous le coup d u p a r a g r a p h e c) d u d i t article; m a i s il y a aussi d e s
a u t e u r s qui m e t t e n t en douto l'oxistonco do principes do droit généralement reconnus.
E n e x a m i n a n t la jurisprudence de la Cour P e r m a n e n t e do J u s t i c e I n t e r n a t i o n a l e e t
celle do la Cour I n t e r n a t i o n a l e , on ne t r o u v e a u c u n e prise do position n e t t e qui a u r a i t
t r a n c h é cette controverse sans laisser subsister des d o u t e s .
P o u r expliquer sa propre thèse, l ' a u t e u r p a r t de la c o n s t a t a t i o n que les principes
de d r o i t sont des n o r m e s d ' u n contenu général, lesquelles a p p a r a i s s e n t dans u n groupe ou
d a n s u n système do normes qui sont en relation e n t r e elles, e t lesquelles, à p r o p r e m e n t
parler, ne sont a u t r e chose que certaines idées qui dirigent le législateur.

3 Acta Juridica VI/1—2.