Challenges in the Identification of the 'General Principles of Law Recognized by Civilized Nations': The Approach of the International Court
| Author | Rumiana Yotova |
| Position | Fellow and Director of Studies in Law, Lucy Cavendish College, University of Cambridge |
| Pages | 269-323 |
269
(2017) 3(1) CJCCL
Challenges in the Identication
of the “General Principles of Law
Recognized by Civilized Nations”:
e Approach of the International
Court
Rumiana Yotova*
is article reassesses the legal character of ‘the general principles of law recognized by
civilized nations’, being one of the two unwritten sources of international law. e
general principles of law are, however, the most controversial source of international
law and have continued to divide the opinions of scholars and judges alike since their
inception. Some view them as private law analogies, others as emanations of natural
law and there are those who conate them with custom. is article seeks to identify
the appropriate methodology for ascertaining the existence of the controversial ‘general
principles of law’. It does so by going back to the preparatory works of Article 38(1)
(c) of the Statute of the International Court of Justice and then critically assessing
the practice of states and the case law of the Court on identifying general principles. It
will be argued that general principles of law are an important source of international
law in their own right with a systemic function in the international legal order and a
distinct methodology for their ascertainment. ree categories of general principles will
be distinguished based on the nuanced methodologies for their ascertainment applied
by the International Court of Justice and its predecessor, namely, general principles
of international law, general principles of domestic law and general principles of
procedural law.
* Dr. Rumiana Yotova is a Fellow and Director of Studies in Law at Lucy
Cavendish College, University of Cambridge and an Aliated Lecturer
at the Faculty of Law. She can be contacted at: rvy21@cam.ac.uk. e
present article is based on a chapter of her PhD thesis.
270
Yotova, “General Principles of Law Recognized by Civilized Nations”
I. I
II. T D D G P
A. e Scope of “General Principles of Law” and the Methodology for
their Ascertainment
B. e Distinction Between Principles and Rules
C. e Function of General Principles
III. I A ()() siCJ
A. State Practice on the Interpretation of General Principles of Law
B. Preparatory Works of Article 38(1)(c) of the SICJ
IV. T A I C P T
G P L
A. General Principles of International Law
1. e Jurisprudence of the PCIJ
2. e ICJ
B. General Principles of Private Law
C. General Principles of Procedural Law
D. General Principles in Separate and Dissenting Opinions
1. General Principles as Private Law Analogies
2. General Principles as Natural Law
V. M C
I. Introduction
sets out the sources of international law that the International Court
of Justice (“ICJ”) shall apply, including treaties, custom and notably, “the
general principles of law recognized by civilized nations”.2 e general
principles of law proved to be the most controversial source during the
drafting of the Statute for the Permanent Court of International Justice3
(“SPCIJ”) in 1929 and continues to divide the opinions of scholars and
1. 26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945)
[SICJ].
2. Ibid, art 38(1)(c).
3. 16 December 1920, 6 LNTS 390 (entered into force 8 October 1921).
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(2017) 3(1) CJCCL
tribunals today. ere is very little agreement on the interpretation of
Article 38(1)(c) of the SICJ and arguably insucient guidance by the ICJ
itself on the methodology to be employed in its application.
is ongoing controversy is partly due to the unwritten character of
general principles as a source of international law and the related challenges
of evidence, capacity and burden of proof in their identication.4
Another challenge lies in the dierent assumptions of civil and common
law systems with respect to the function of general principles as a
source of law and the perception of a law-making role of the judge in
their identication including the resort to inductive but also deductive
reasoning.5 Finally, the identication of the general principles of law
brings out the question of state consent and the corresponding division
between the naturalist and the voluntarist approaches to international
law, which became particularly apparent during the debates surrounding
the drafting of Article 38(1)(c) of the SICJ. It is thus not surprising that in
its latest annual report, the International Law Commission of the United
Nations (“ILC”), which is the body responsible for the codication and
progressive development of international law, identied the study of the
general principles of law as one of the topics for its future programme of
work.6 Accordingly, a doctrinal engagement with the challenges in the
identication and application of the general principles of law is both
timely and much needed. is study will begin with the interpretation
of Article 38(1)(c) of the SICJ, which sets out the denition of general
principles as a source of international law, by reference to the general rule
of treaty interpretation, as well as the preparatory works of the provision
given its ambiguities. Next, it will assess critically the case law of the ICJ
4. Jaye Ellis, “General Principles and Comparative Law” (2011) 22 European
Journal of International Law 949 at 957.
5. Bin Cheng, General Principles of Law as Applied by International Courts
and Tribunals (Cambridge: Cambridge University Press, 1953) at 16-
19; see also Clive Parry, e Sources and Evidences of International Law
(Manchester: Manchester University Press, 1965) at 85-88.
6. International Law Commission, Report of the International Law
Commission, 68th Sess, UNGAOR, 71st Sess, Supp No 10, UN Doc
A/71/10 (2016) at 378.
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