General Principles of Law

Giorgio Gaja

C ontent type: Enc yc Product: Max Planc k

lopedia Entries Article Enc yc lopedia of Public
last updated: May International Law
2013 [MPEPIL]

Subject(s):
Customary international law State practice Arbitral awards, recognition and enforcement
International courts and tribunals, decisions International Court of Justice (ICJ) International
courts and tribunals, procedure
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A. The Drafting of the Provision in the Statute of the
Permanent Court of International Justice referring to General
Principles of Law
1 References to general principles of law may be found in arbitral decisions concerning
international disputes well before the adoption of the Statute of the Permanent Court of
International Justice (PCIJ). For instance, in the arbitration between France and Venez uela in
the Antoine Fabiani Case the arbitrator said that he would apply the general principles of the
law of nations on the denial of justice and defined those principles as the rules common to
most legislations or taught
by doctrines (at 117). However, only Art. 38 (c) PCIJ Statute gave great prominence to the role
that general principles of law may play in international adjudication when it stated that the PCIJ
was required to apply the general principles of law recogniz ed by civiliz ed nations (Civiliz ed
Nations).

2 This wordingwhich was reproduced in Art. 38 (1) (c) Statute of the International Court of
Justice (ICJ)has given rise to criticism in recent times, since it appears to be based on the
dated concept that only certain nations may be rightly called civiliz ed. This criticism, which
was voiced especially in Judge Ammouns separate opinion in the North Sea Continental Shelf
Cases ([Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands] 132
33), led to a proposal, which was, however, not insisted upon, by Guatemala and Mexico to
amend the ICJ Statute by deleting the term civiliz ed (United Nations General Assembly Review
of the Role of the International Court of Justice: Report of the Secretary-General [15 September
1971] 2325). More significantly, this inappropriate wording may partly explain why the ICJ has
been so far reluctant to refer to specific rules of one or other municipal system, lest it imply
that some other systems had to be regarded as less civiliz ed (International Law and Domestic
[Municipal] Law).

3 A perusal of the preparatory work of the PCIJ Statute shows that the drafters had diferent
views about what the reference to general principles of law was intended to cover. Baron
Descamps, the chairman of the Advisory Committee of Jurists (Committee) from which the
text originated, had proposed to include among the rules that the PCIJ would apply the rules
of international law as recogniz ed by the legal conscience of civilised nations (Permanent
Court of International Justice: Advisory Committee of Jurists Procs-verbaux of the Proceedings
of the Committee, June 16thJuly
24th 1920, with Annexes 306). As Baron Descamps later explained, he meant by this the law of
objective justice, at any rate in so far as it has twofold confirmation of the concurrent
teachings of jurisconsults of authority and of the public conscience of civilised nations (ibid
324). The United States of America member, E Root, held that this reference was too wide and
would have empowered the PCIJ to apply principles, diferently understood in diferent
countries (ibid 308). In the following debate, Lord Phillimore, the United Kingdom member,
maintained that all the principles of common law are applicable to international afairs. They
are in fact part of international law (ibid
316). E Root then submitted an amended proposal, which referred to the general principles of
law recogniz ed by civilised nations (ibid 344). This text was adopted by the Committee
without change (ibid 567, 584, 605, and 648). In the discussion relating to E Roots proposal,
the Braz ilian member, M Fernandes, suggested that the PCIJ should apply those principles of
international law which, before the dispute, were not rejected by the legal traditions of one of
the States concerned with the dispute (ibid 346). On the other hand, in an often quoted
passage Lord Phillimore pointed out that the general principles referred to were those
which were accepted by all nations in foro domestico, such as certain principles of procedure,
the principle of good faith (bona fide), the principle of res iudicata, etc. (ibid 335). The French
member, M de Lapradelle, admitted that the principles which formed the bases of national law,
were also sources of international law (Sources of International Law); however, he thought it
preferable to keep to a simple phrase: such, for example, as the general principles of law,
without indicating exactly the sources from which the principles should be derived (ibid 335
36). These excerpts from the summary records of the debate show that the compromise text
adopted by the Committee covered a division of opinions, especially on the question whether a
general principle was to be regarded as part of international
law only because it was already present in municipal systems. The Committees report did
not provide any additional explanation (ibid 729), nor was there any substantial discussion
on the principles of law in the debates that led to the formal adoption of the PCIJ Statute by
the League of Nations (Documents concerning the Action Taken by the Council of the League
of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute
of the Permanent Court).

B. The Reference to General Principles of Law in the Statute

of the International Court of Justice
4 As was noted above (para. 2), in Art. 38 (1) (c) ICJ Statute one finds the same wording as in
Art.
38 (c) PCIJ Statute. No discussion took place at the San Francisco Conference about the
reference in the ICJ Statute to general principles of law recogniz ed by civiliz ed nations.

5 The chapeau of Art. 38 PCIJ Statute underwent an expansion. While it originally read: The
Court shall apply, it now states: The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply. This change had the
purpose of stressing the Courts function with regard to international law (see the statement
of Al-Faray as Rapporteur of Committee IV/1, United Nations Information Organiz ation [ed]
Documents of the United Nations Conference on International Organization: San Francisco,
1945 [United Nations Information Organiz ation New York 1945] vol 13 Commission IV: Judicial
Organization 427 ). It was not intended to afect the meaning of any of the references to the
various sources listed in Art. 38 ICJ Statute.

6 GI Tunkin argued that

the amendment invalidates the understanding of Art. 38(1)(c) that was prevailing in
the Commission of Jurists in 1920. It makes impossible the interpretation of Art. 38(1)
(c) according to which general principles of law are simply principles common to all
civilised nations. It clearly defines that general principles of law are principles of
international law. (Tunkin 525) International Com mission of Jurists [ICJ]; Interpretation
in International Law).

However, even the drafters of the original text had not stated that the reference to general
principles of law would entitle the ICJ to decide on a basis other than international law.
They had rather viewed general principles of law as part of international law.

C. The Application by the International Court of Justice of

Principles of International Law that Find a Parallel in
Municipal Laws
7 General principles that exist in municipal systems of law do not necessarily form part of
international law (see also International Law and Domestic [Municipal] Law). The main reason
lies in the diference in structure between international society and municipal societies. This
diference may make it inappropriate to transpose to international relations a principle that is
part of municipal law.

8 When a principle exists both in municipal laws and in international law, the origin of the
principle is likely to be in municipal systems, given the greater development and wider
practice relating to those systems. However, the application of the principle in international
law does not necessarily depend on the fact that the principle is common to a number of
municipal systems.

9 The case law of both the PCIJ and the ICJ provides some examples of decisions in which a
principle of international law was regarded as having a parallel in municipal laws. For
instance, in the Case concerning the Factory at Chorzw (Germany v Poland), the PCIJ found
that
 It is a principle generally accepted in the jurisprudence of international arbitration,
as well as by municipal courts, that one Party cannot avail himself of the fact that the
other has not fulfilled some obligation or has not had recourse to some means of
redress, if the former Party has, by some illegal act, prevented the latter from fulfilling
the obligation in question, or from having recourse to the tribunal which would have
been open, to him. (Case concerning the Factory at Chorzw [Germany v Poland]
[Claim for Indemnity] [Jurisdiction] 31; see also German Interests in Polish Upper
Silesia, Cases concerning the)

This passage was approvingly quoted by the ICJ in the Gabkovo-Nagymaros Case
(Hungary/Slovakia) (para. 110).
10 In the Corfu Channel Case the ICJ noted that

By reason of the exclusive territorial control of a State within its frontiers the other
State, the victim of a breach of international law, is often unable to furnish direct
proof of facts giving rise to responsibility. Such a State should be allowed a more
liberal recourse to inferences of fact and circumstantial evidence. This indirect
evidence is admitted in all systems of law and its use is recogniz ed by international
decisions. (The Corfu Channel Case [United Kingdom of Great Britain and Northern
Ireland v Albania] [Merits] [Corfu Channel Case] 18)

The reference to all systems of law has apparently the purpose of confirming what is
already established under international law.
11 A greater readiness to accept the view that a general principle of law applied in municipal
systems is relevant as such for an international court or tribunal appears in a passage of the
ICJs advisory opinion on Efect of Awards of Compensation Made by the United Nations
Administrative Tribunal. (see also Administrative Boards, Commissions and Tribunals in
International Organiz ations; Advisory Opinions). The ICJ noted that the United Nations
Administrative Tribunal
was an independent and truly judicial body pronouncing final judgments without appeal within
the limited field of its functions and said: According to a well-established and generally
recogniz ed principle of law, a judgment rendered by such a judicial body is res iudicata and
has binding force between the parties to the dispute (Efect of Awards of Compensation Made
by the United Nations Administrative Tribunal [Advisory Opinion] 53). The ICJ hinted again at
the existence of general principles of procedural law in the Case concerning the Land, Island
and Maritime Frontier
Dispute ([El Salvador/Honduras] Application of Nicaragua for Permission to Intervene
[Judgment] para. 102; Land, Island and Maritime Frontier Dispute Case [El Salvador/Honduras:
Nicaragua Intervening]).

12 The ICJ may have referred to a general principle of law existing in municipal systems also in
the
Temple of Preah Vihear Case when it found that

It is an established rule of law that the plea of error cannot be allowed as an element
vitiating consent if the party advancing it contributed by its conduct to the error, or
could have avoided it, or if the circumstances were such as to put that party on
notice of a possible error. (Case concerning the Temple of Preah Vihear [Cambodia v
Thailand] [Merits] 26)

13 The great variety of approaches that are taken on specific legal issues by municipal laws
even when they may lead to the same practical resultoften makes it dificult to ascertain
whether a general principle exists. The doubt was even expressed by H Kelsen whether such
principles common to the legal order of the civiliz ed nations exist at all (Kelsen 539).

14 In several decisions the ICJ concluded that there was no general principle of law that
could be applied to the questions raised. Thus, for instance, in the South West Africa Cases
the ICJ noted that an argument raised by the claimant State amounted to
 a plea that the Court should allow the equivalent of an actio popularis, or right
resident in any member of a community to take legal action in vindication of a public
interest. But although a right of this kind may be known to certain municipal systems
of law, it is not known to international law as it stands at present: nor is the Court able
to regard it as imported by the general principles of law referred to in Art. 38,
paragraph 1 (c), of its Statute. (South West Africa Cases [Ethiopia v South Africa;
Liberia v South Africa] [Second Phase] para. 88; South West Africa/Namibia [Advisory
Opinions and Judgments])

15 Similarly, in the advisory opinion on Application for Review of Judgment No 158 of the
United
Nations Administrative Tribunal, the ICJ held that there was no

general principle of law which requires that in review proceedings the interested
parties should necessarily have an opportunity to submit oral statements of their case
to the review tribunal. General principles of law and the judicial character of the Court
do require that, even in advisory proceedings, the interested parties should each have
an opportunity, and on a basis of equality, to submit all the elements relevant to the
questions which have been referred to the review tribunal. (Application for Review of
Judgment No
158 of the United Nations Administrative Tribunal [Advisory Opinion] para. 36; United
Nations Administrative Tribunal, Applications for Review [Advisory Opinions])

16 Often general principles are only vague and are of little use should one intend to apply
what is common to a large number of legal systems. Unlike certain arbitration tribunals, the
ICJ has been understandably reluctant to apply general principles in a way that would imply a
selection among municipal rules and thus the use of a large amount of discretion in finding
the more appropriate rule. The ICJ would not only run into the dificulty of engaging itself in a
comparative analysis. It would also have to face the risk of transgressing into the application
of equity (Equity in International Law), which according to Art. 38 (2) ICJ Statute would require
the specific consent of the parties to the dispute. As was observed by G Fitz maurice,

the concept of the general principles is so fluid that a quasi-legislative element would
often be introduced into the Courts decisions by any bold application of them, and
considerable harm might be done to the desideratum of increased resort to the Court
unless a reasonable predictability as the basis of its decisions can be maintained. (Fitz
maurice 325)

D. References by the International Court of Justice to

Principles that are Relevant only under International Law
17 When the ICJ referred to principles of international law or to general principles it often
considered principles that do not find a parallel in municipal laws. Thus, for example, in the
Corfu Channel Case the ICJ found that the Albanian authorities were under the obligation to
notify the existence of a minefield in their territorial waters (Territorial Sea) and to warn the
approaching ships of the imminent danger. The ICJ said

Such obligations are based on certain general and well-recogniz ed principles,

namely: elementary considerations of humanity, even more exacting in peace than in
war; the principle of the freedom of maritime communication; and every States
obligation not to allow knowingly its territory to be used for acts contrary to the rights
of other States. (Corfu Channel Case 22)

In its advisory opinion on Reservations to the Convention on the Prevention and Punishment
of the Crime of Genocide (Genocide Convention, Reservations [Advisory Opinion] ; see also
Genocide), the ICJ noted that the principles underlying the Convention are principles which
are recogniz ed by civiliz ed nations as binding on States, even without any conventional
obligation
(ibid 23). Again, in its advisory opinion on Western Sahara the ICJ stated the principle of self-
determination, defined as the need to pay regard to the freely expressed will of peoples
(Western Sahara [Advisory Opinion] para. 59). ; Western Sahara [Advisory Opinion]; see also
Self- Determination). As a further example, the Chamber judgment in the Frontier Dispute Case
(Burkina Faso/Republic of Mali) considered the principle of uti possidetis juris as a fairly
established principle of international law where decoloniz ation is concerned and as a general
principle, which is logically connected with the phenomenon of the obtaining of independence,
wherever it occurs para. 20; Uti possidetis Doctrine).
18 The relatively frequent reference by the ICJ to principles that are not part of municipal laws
is explained, at least in part, by the narrow definition of customary international law that is
provided in Art. 38 (1) (b) ICJ Statute. Should custom be regarded, as stated in that provision,
as evidence of a general practice accepted as law, given the insuficiency of practice,
several rules of international law which are not based on treaties would not fit in the definition
of custom. Hence the reference to principles or general principles. Only in certain cases could
these principles appear as an abstraction from specific norms of customary international law.
This would be, for example, the
case of the principle of the freedom of maritime communication, which is referred to in the
passage from the Corfu Channel Case (see para. 17 above).

19 Art. 38 (1) (c) ICJ Statute requires a general principle of law to be recogniz ed by civiliz ed
nations. When a given principle is only part of international law, recognition of that principle
would reflect the attitude that is taken in its regard by the international community, and thus
essentially by States. In other words, for a principle to exist it would be necessary that States
acknowledge, albeit implicitly, that this principle applies to their international relations. Thus,
for instance, in the Frontier Dispute Case, when assessing whether the principle of uti
possidetis applies in international law,
the Chamber noted that

the numerous solemn afirmations of the intangibility of the frontiers existing at the
time of the independence of African States, whether made by senior African
statesmen or by organs of the Organiz ation of African Unity itself, are evidently
declaratory rather than constitutive: they recogniz e and confirm an existing
principle, and do not seek to consecrate a new principle or the extension to Africa of
a rule previously applied only in another continent. (Frontier Dispute Case para. 24) ;
see also African Union [AU]).

20 The assertion by the ICJ of a general principle of law, whether or not it finds a parallel in
municipal systems, is only rarely accompanied by an adequate demonstration of its
existence in international law. A similar remark could be made with regard to the
ascertainment by the ICJ of international customary rules.

E. The Relations between General Principles and Customary or

Treaty Rules
21 Even if general principles of law are often vague, they may complement to a certain
extent other rules of international law and thus contribute to filling in gaps (General
International Law [Principles, Rules and Standards]). Principles do not necessarily have a
subsidiary character. Some of the principles referred to in the preceding paragraphs clearly do
not have that character. In any event, their character would not depend on whether or not
they find a parallel in municipal
systems.

22 One cannot assume that treaty rules always prevail over general principles of law. This
would normally be the case when the treaty and the general principle cover the same ground.
However, a general principle could also afect the way in which a certain treaty rule is to be
applied. It could impinge on the application of the treaty rule in limited circumstances. In that
case it would be more appropriate to say that the principle prevails.
23 The position of general principles of law in the list of sources of international law contained
in Art. 38 (1) ICJ Statute is not indicative. As Lord Phillimore pointed out during the preparatory
work of the PCIJ Statute, the order mentioned simply represented the logical order in which
these sources would occur to the mind of the judge (Permanent Court of International Justice:
Advisory Committee of Jurists Procs-verbaux of the Proceedings of the Committee, June 16th
July 24th 1920, with Annexes 333).

24 A general principle of law may be embodied in a treaty provision or become part of

international customary law. The origin of a treaty or customary rule in a general principle of
law would not be material. The ICJ gave an example of such an embodiment in the Case of
the Monetary Gold removed from Rome in 1943 when it stated that to adjudicate upon the
international responsibility of Albania without her consent would run counter to a well-
established principle of international law embodied in the Courts Statute, namely, that the
Court can only
exercise jurisdiction over a State with its consent (Case of the Monetary Gold removed from
Rome in 1943 [Italy v France, United Kingdom of Great Britain and Northern Ireland and United
States
of America] [Preliminary Questions] 32; Monetary Gold Arbitration and Case ; see also
International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications).

F. The Application of General Principles of Law by International

Tribunals
25 General principles are often applied by international tribunals irrespective of whether
there is a specific reference in their constituent instrument. Certain decisions refer, like the
ICJ, to principles that find a parallel in municipal systems.

26 Thus, the arbitration award in the Boundary Dispute between Argentina and Chile
concerning the Frontier Line between Boundary Post 62 and Mount Fitzroy stated that

A decision with the force of res judicata is legally binding on the parties to the dispute.
This is a fundamental principle of the law of nations repeatedly invoked in the legal
precedents, with regard [to] the authority of res judicata as a universal and absolute
principle of international law. (at para. 68)

Similarly, the arbitration award in the Case concerning the Loan Agreement between Italy
and Costa Rica referred to the fundamental character of the principle of good faith in
international law and included it among the general principles of law recogniz ed by civiliz ed
nations (at para. 14).
27 When there are diferences in the way in which municipal systems address an issue, the
Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted
in the Tadi Case that

national legislation and case law cannot be relied upon as a source of international
principles or rules, under the doctrine of the general principles of law recogniz ed by
the nations of the world: for this reliance to be permissible, it would be necessary to
show that most, if not all, countries adopt the same notion More specifically, it
would be necessary to show that, in that case, the major legal systems of the world
take the same approach to this notion. (Prosecutor v Tadi [Opinion and Judgment]
para. 225)

This cautious attitude corresponds to that of the ICJ, but is more explicitly defined.
28 Other international tribunals have had less hesitation in applying general principles of law
even in the presence of discrepancies among municipal systems. For instance, in BP
Exploration Company (Libya) Limited v Government of the Libyan Arab Republic, the arbitrator
was required
to interpret the relevant contract
in accordance with the principles of the law of Libya common to the
principles of international law and in the absence of such common principles
then by and in
 accordance with the general principles of law, including such of those principles as
may have been applied by international tribunals. (at 303)

The arbitrator found that the corporation was entitled to compensation but not to restitution,
which would have been required under certain municipal systems, because [a] rule of reason
dictates a result which conforms both to international law, as evidenced by State practice
and the law of treaties, and to the governing principle of English and American contract law
(ibid 354). see also Corporations in International Law).
29 In the first International Centre for Settlement of Investment Disputes (ICSID) arbitration
award in Amco Asia Co v Republic of Indonesia (Amco v Indonesia Case), the panel found that
the full compensation of prejudice, by awarding to the injured party the damnum emergens
and the lucrum cessans is a principle common to the main systems of municipal law, and
therefore, a general principle of law which may be considered as a source of international law
(Amco Asia Co v Republic of Indonesia [Award of 20 November 1984] para. 267).

30 The choice of what is considered the better law under the guise of the application of
principles of law is frequent in commercial arbitration, where the reference to general
principles provides an apparently objective criterion (see also Commercial Arbitration,
International). A similar approach is taken by the European Court of Justice, which only rarely
refers to the pertinent rules of municipal laws and attempts to find a genuinely common
denominator.

G. Assessment
31 When determining the applicable law, references to general principles of law undoubtedly
provide international courts and tribunals with discretion. Only rarely could one say that a
certain principle may be inferred from more specific rules of international law. While the
distinction between principles and rules has not been elaborated in judicial or arbitral
decisions, the use of the term principles denotes the general nature of the norm in question.

32 The ICJ generally asserted the existence of principles in international law irrespective of
their correspondence to principles pertaining to municipal laws. The ICJ thus included in
general international law norms that could not be defined as part of customary law. Principles
drawn from municipal laws were applied only with caution by the ICJ. On the contrary,
arbitration tribunals have shown little hesitation in referring to municipal systems even when
they arguably ofer a variety of solutions and the adoption of one or the other solution
necessarily implies a considerable discretion.

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