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General

Principles of Law
Giorgio Gaja

Content type: Product: Max Planck


Encyclopedia Entries Encyclopedia of Public
Article last updated: May International Law [MPEPIL]
2013

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
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
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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 Venezuela 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 recognized
by civilized nations’ (Civilized Nations).

2 This wording—which 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 civilized. This criticism, which was voiced
especially in Judge Ammoun’s 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 civilized (United Nations General Assembly ‘Review of the Role of
the International Court of Justice: Report of the Secretary- General ’ [15 September 1971] 23–
25). 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 civilized (International Law and Domestic [Municipal] Law ).

3 A perusal of the preparatory work of the PCIJ Statute shows that the drafters had different
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 recognized by the legal conscience of civilised nations’ (Permanent Court
of International Justice: Advisory Committee of Jurists Procès-verbaux of the Proceedings of
the Committee, June 16th–July 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 , differently understood in
different 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 affairs. 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 recognized 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 Root’s proposal, the Brazilian 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

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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 Committee’s
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 recognized by civilized 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 Court’s function with regard to international law (see the statement of Al-Faray
as Rapporteur of Committee IV/1, United Nations Information Organization [ed] Documents of the
United Nations Conference on International Organization: San Francisco, 1945 [United Nations
Information Organization New York 1945] vol 13 Commission IV: Judicial Organization 427 ). It was
not intended to affect 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 difference in structure between international society and municipal societies. This
difference 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.

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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 Chorzów (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 Chorzów [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 Gabčíkovo-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 recognized 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 ICJ’s
advisory opinion on Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal. (see also Administrative Boards, Commissions and Tribunals in
International Organizations; 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 recognized principle of law , a judgment rendered by such a judicial body is res
iudicata and has binding force between the parties to the dispute’ (Effect 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 result—often makes it difficult to ascertain whether
a general principle exists. The doubt was even expressed by H Kelsen ‘whether such

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principles common to the legal order of the civilized 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 difficulty 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 Fitzmaurice,

the concept of the general principles is so fluid that a quasi-legislative element would
often be introduced into the Court’s 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.
(Fitzmaurice 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-recognized principles ,


namely: elementary considerations of humanity, even more exacting in peace than in
war; the principle of the freedom of maritime communication; and every State’s

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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 recognized by civilized 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 decolonization 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 insufficiency 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 ‘recognized by civilized
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 affirmations 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 Organization of African Unity itself, are evidently declaratory rather than
constitutive: they recognize 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

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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 affect 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 Procès-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 Court’s 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 recognized by civilized nations (at
para. 14).

27 When there are differences 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
Tadić 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
recognized 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

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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 Tadić [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 offer a variety of solutions and the adoption of one or the other solution necessarily
implies a considerable discretion.

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Universiteit Leiden - LUMC; date: 29 December 2015
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BP Exploration Company (Libya) Ltd v Government of the Libyan Arab Republic (1979) 53
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Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Universiteit Leiden - LUMC; date: 29 December 2015
Case concerning the Loan Agreement between Italy and Costa Rica (1998) 25 RIAA 21.
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Universiteit Leiden - LUMC; date: 29 December 2015

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