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Challenges in the Identification
of the “General Principles of Law
Recognized by Civilized Nations”:
The Approach of the International
Court
Rumiana Yotova*

This 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. The
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 conflate them with custom. This 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. Three 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 Affiliated Lecturer
at the Faculty of Law. She can be contacted at: rvy21@cam.ac.uk. The
present article is based on a chapter of her PhD thesis.

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Yotova, “General Principles of Law Recognized by Civilized Nations”

I.

Introduction

II.

The Doctrinal Debate on General Principles

III.

IV.

A.

The Scope of “General Principles of Law” and the Methodology for
their Ascertainment

B.

The Distinction Between Principles and Rules

C.

The Function of General Principles

Interpreting Article 38(1)(c) of the SICJ
A.

State Practice on the Interpretation of General Principles of Law

B.

Preparatory Works of Article 38(1)(c) of the SICJ

The Approach of the International Court and its Predecessor Towards
General Principles of Law
A.

V.

I.

A

General Principles of International Law
1.

The Jurisprudence of the PCIJ

2.

The 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

Methodological Conclusions

Introduction

rticle 38(1) of the Statute of the International Court of Justice1 (“SICJ”)
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 The 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.
2.
3.

26 June 1945, Can TS 1945 No 7 (entered into force 24 October 1945)
[SICJ].
Ibid, art 38(1)(c).
16 December 1920, 6 LNTS 390 (entered into force 8 October 1921).

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tribunals today. There is very little agreement on the interpretation of
Article 38(1)(c) of the SICJ and arguably insufficient guidance by the ICJ
itself on the methodology to be employed in its application.
This 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 identification.4
Another challenge lies in the different 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 identification including the resort to inductive but also deductive
reasoning.5 Finally, the identification 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 codification and
progressive development of international law, identified 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
identification and application of the general principles of law is both
timely and much needed. This study will begin with the interpretation
of Article 38(1)(c) of the SICJ, which sets out the definition 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.
5.

6.

Jaye Ellis, “General Principles and Comparative Law” (2011) 22 European
Journal of International Law 949 at 957.
Bin Cheng, General Principles of Law as Applied by International Courts
and Tribunals (Cambridge: Cambridge University Press, 1953) at 1619; see also Clive Parry, The Sources and Evidences of International Law
(Manchester: Manchester University Press, 1965) at 85-88.
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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Yotova, “General Principles of Law Recognized by Civilized Nations”

and its predecessor, given that they are the primary addressees of the
provision, so as to identify the methodology of the ICJ with respect to
the identification and the application of the general principles of law.
The article will conclude by offering some methodological conclusions,
as well as a typology of the general principles of law and their respective
roles in international adjudication.

II.

The Doctrinal Debate on General Principles

It is worth noting briefly the ongoing doctrinal debate on the meaning,
function and methodology for the ascertainment of general principles of
law, given that the writings of scholars are one of the subsidiary sources
for identifying the general principles of law in accordance with Article
38(1)(d) of the SICJ.7 It is still true to say that the general principles are
the most controversial of the sources of international law.8

A.

The Scope of “General Principles of Law” and the
Methodology for their Ascertainment

Scholars disagree on the methodology for the identification of the
general principles of law. Some advocate a comparative law approach;
others advocate an international law-based one and there are those
who adopt a ‘hybrid’ approach consisting of a combination of the two.
Authors supporting the comparative approach include, among others,

7.
8.

SICJ, supra note 1, art 38(1)(d).
Cheng, supra note 5 at xv.

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Oppenheim,9 Lauterpacht,10 Grapin,11 Schlesinger12 and Herczegh.13
Thirlway addresses this challenge by defining general principles as “those
principles without which no legal system can function at all, that are
part and parcel of legal reasoning” and the comparative methodology
for their ascertainment is not so much a criterion but a guide.14 Pellet
adopts an attenuated comparative approach for deriving general
principles from those common to national legal systems but with the
additional requirement that they are “transposables dans l’ordre juridique
international”.15 This additional requirement is fully in line with the text
of Article 38(1) of the SICJ, requiring the ICJ to decide disputes “in
accordance with international law”.16
While firmly rooted in the tradition of voluntarism by requiring
the consent of the majority if not all states for a principle to become a
general principle of law as a source of international law, the conceptual
difficulty with the comparative law approach lies in the transposition
of domestic principles to the international plane which necessitates
9.
10.

11.
12.

13.
14.
15.

16.

Sir Robert Jennings & Sir Arthur Watts, Oppenheim’s International Law:
Volume 1 Peace, 9d (Oxford: Oxford University Press, 1996) at 37.
Hersch Lauterpacht, Private Law Sources and Analogies of International
Law: With Special Reference to International Arbitration (London:
Longman’s, Green and Co, 1927) at 67-69.
Pierre Grapin, Valeur Internationale des Principes Générux du Droit (Paris:
Montchrestein, 1934) at 49.
Rudolph B Schlesinger, “Research on the General Principles of Law
Recognized by Civilized Nations” (1957) 2 American Journal of
International Law 734.
Géza Herczegh, General Principles of Law and the International Legal Order
(Budapest: Akadémia Kiadó, 1969) at 124.
Hugh Thirlway, The Sources of International Law (Oxford: Oxford
University Press, 2014) at 99.
Din Nguyen Quoc et al, Droit International Public, 6d (Paris: Librarie
Générale de Droit et de Jurisprudence, 1994) at 344; see also Alain Pellet,
“Article 38” in Andreas Zimmermann, Christian Tomuschat & Karin
Oellers-Frahm, eds, The Statute of the International Court of Justice: A
Commentary (Oxford: Oxford University Press, 2012) 677 at 840; see also
Ellis, supra note 4 at 954.
SICJ, supra note 1, art 38(1).

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reasoning by analogy17 and involves an inherent degree of indeterminacy.
As highlighted by Ellis, “once the rule is taken from one context and
introduced to another, one can be fairly sure that it will be transformed,
without being able to make predictions as to how much or in precisely
what way”.18 Indeed, D’Aspremont opines that the difficulties of
collecting representative domestic laws have lead to the ascertainment of
general principles moving away from having any formal legal character
at all.19
At the other end of the spectrum are those scholars who adopt a
purely international law-based approach for the ascertainment of general
principles. Kelsen forcefully rejects the comparative law methodology
noting with some justification that “it is doubtful whether such principles
common to the legal orders of civilized nations exist at all”.20 He argues
instead that the general principles of law are only those that are already
part of international law either as treaties or custom.21 Cassese identifies
two different classes of general principles of law, including the general
principles of international law derived by induction from conventions and
custom but also the “principles that are peculiar to a particular branch of
international law”.22 It is difficult to see, however, how the latter category
of principles meets the requirement of generality. Brownlie adopts a
hybrid approach by including under the rubric of ‘general principles’
17.

18.
19.

20.
21.

22.

André Nollkaemper, “The Role of Domestic Courts in the Case Law
of the International Court of Justice” (2006) 5 Chinese Journal of
International Law 301 at 308.
Ellis, supra note 4 at 967.
Jean d’Aspremont, Formalism and the Sources of International Law: A
Theory of the Ascertainment of Legal Rules (Oxford: Oxford University
Press, 2011) at 171.
Hans Kelsen, Principles of International Law (New York: Rinehart, 1952)
at 393.
Ibid at 394; see also Grigory Tunkin, “‘General Principles of Law’ in
International Law” in René Marcic et al, eds, Internationale Festschrit Für
Alfred Verdross (Munich: Wilhelm Fink Verlag Munchen, 1971) 523 at
523.
Antonio Cassese, International Law, 2d (Oxford: Oxford University Press,
2005) at 189.

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both principles derived from domestic laws and the general principles of
international law defined as “abstractions … [that] have been accepted
for so long and so generally as no longer to be directly connected to
state practice”.23 The ILC, which is the UN body responsible for the
codification and progressive development of international law, seems to
adopt a hybrid approach too. For instance, in the report of its study group
on fragmentation, it noted that the general principles of law could “refer
to principles of international law proper and to analogies from domestic
laws, especially principles of legal process”.24 The hybrid approach seems
convincing as it is also in line with that of the ICJ.
Cheng distances himself from the methodological debate all together,
noting that “[i]t is of no avail to ask whether these principles are general
principles of international law or of municipal law; for it is precisely the
nature of these principles that they belong to no particular system of
law, but are common to them all”.25 He accordingly adopts an inductive
method examining the decisions of international courts and tribunals as
“the most important means for the determination of rules and principles
of international law”.26 While this is somewhat in line with the approach
of the ICJ of using international decisions to identify general principles
of law, it does not answer the pertinent methodological question as to
whether these decisions are themselves direct evidence of the recognition
of general principles or merely an easy shortcut for their identification.
Furthermore, requiring that general principles are common to all legal
systems goes beyond the exigencies of Article 38(1)(c) of the SICJ and
potentially narrows that category even further.
Finally, some scholars adhere to the naturalist school of thought,
adding values and morality to the methodology for the identification
23.
24.

25.
26.

James Crawford, Brownlie’s Principles of Public International Law, 8d
(Oxford University Press, 2012) at 36-37 [emphasis in original].
Study Group of the International Law Commission, Fragmentation
of International Law: Difficulties Arising from the Diversification and
Expansion of International Law, International Law Commission OR, 58th
Sess, UN Doc A/CN.4/L.682 (2006) at 254.
Cheng, supra note 5 at 390.
Ibid at 1.

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of general principles. Besson takes the view that the material source of
general principles lies in moral values, giving as an example the protection
of human rights.27 Voigt notes in a similar vein that the approach to
identifying general principles is based on “‘a common legal conscience’;
an opinio juris communis” to be found in declarations and statements of
states and international organisations.28 While ethically appealing, these
approaches find little support in the actual wording of Article 38(1)(c) of
the SICJ, or in the practice of the ICJ on the application of this provision.
Furthermore, it is far from clear whether one could simply equate the
recognition required for the identification of the general principles of law
with the acceptance as law or opinio juris, being the subjective element of
customary international law under Article 38(1)(b) of the SICJ, not least
due to the different wording of Article 38(1)(c).29
One question not well addressed in literature concerns the difference
between custom and general principles, being the two unwritten
primary sources of international law. Some argue that the two can and
do at times overlap, others that general principles are a transitory stage
between domestic law principles and custom,30 and there are those who
conceptualise general principles as inchoate custom that does not require
support by state practice.31 For example, the Special Rapporteur of
the ILC on the Identification of Customary International Law implies
that state practice is not a necessary element for the establishment of
general principles, noting that “[t]he International Court itself may have
recourse to general principles of international law in circumstances when

27.
28.

29.
30.
31.

Ibid at 47-49, 57.
Christina Voigt, “The Role of General Principles in International Law and
their Relationship to Treaty Law” (2008) 31 Retfærd: Nordic Journal of
Law and Justice 3 at 8 [emphasis in original].
SICJ, supra note 1, arts 38(1)(b)-(c).
Humphrey Waldock, “General Course on Public International Law”
(1962) 106 Rec des Cours 39 at 62.
Giorgio Gaja, “General Principles of Law” in Max Plank Encyclopedia of
International Law by Rüdiger Wolfrum (Oxford: Oxford University Press,
2016) at para 16, online: Oxford Public International Law <www.mpepil.
com>; see also Cassese, supra note 22 at 160-61.

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the criteria for customary international law are not present”.32 While
acknowledging that it may be difficult to distinguish between general
principles and custom in practice, Sir Michael Wood stresses the need to
differentiate the rules that by their nature do not need to be grounded
in state practice.33 The first view is preferable as general principles can
overlap with custom when the latter has the requisite degree of generality,
as will be seen in the practice of the ICJ referring to the same norm at
some times as custom and at others, as a general principle.
Overall, disagreement persists among the eminent scholars of
international law with respect to the legal character of the general
principles of law, be they principles of international law, those common
to the municipal legal systems or both, as well as with respect to the
methodologies for their ascertainment.

B.

The Distinction Between Principles and Rules

Scholars also disagree on how to distinguish between principles and rules.
According to Sir Gerald Fitzmaurice:
[b]y a principle, or a general principle, as opposed to a rule, even a general
rule, of law is meant chiefly something which is not itself a rule, but which
underlines a rule, and explains or provides the reason for it. A rule answers the
question ‘what’: a principle in effect answers the question ‘why’.34

Herczegh distinguishes principles from rules based on their level of
generality, noting that “a principle of law is a norm of general content
which manifests itself in a group or system of legal rules which are
associated with one another”.35 Dworkin opines that “both sets of
standards point to particular decisions about legal obligation in particular
circumstances, but they differ in the character of the direction they give”

32.

33.
34.
35.

Michael Wood, First Report on Formation and Evidence of Customary
International Law, International Law Commission OR, 65th Sess, UN
Doc A/CN.4/663 (2013) at para 36.
Ibid.
Gerald Fitzmaurice, “The Principles of International Law Considered
from the Standpoint of the Rule of Law” (1957) 92 Rec des Cours 7 at 7.
Herczegh, supra note 13 at 122.

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as rules apply in “an all-or-nothing fashion”,36 whereas principles have the
dimensions of weight and importance and must be taken into account
by decision makers as suggesting a given direction without necessitating
a particular decision.37 In his reply to Dworkin’s criticisms, Hart defines
principles as an aspect of legal reasoning and judicial decision-making38
due to being “broad, general or unspecific … because they refer more or
less explicitly to some purpose, goal, entitlement or value”.39
Kolb sees principles as “neither simple ‘rules’ nor simple ‘vague ideas’”
but rather “norm-sources” as a type of source that “does not essentially
deal with the fixed meaning of rules to be applied, but with the adaptation
of the rules to some constitutional necessities, to new developments and
needs, to conformity with basic value-ideas”.40 There are also those who
deny the meaningfulness of the distinction between rules and principles,
arguing that both can be a direct source of rights and obligations.41
Most scholars seem to distinguish between rules and principles based
on their level of generality. This is in line with the ordinary meaning
of the term “principle”, deriving from the Latin “principium”, meaning
origin, source or basis,42 as well as with the wording of the SICJ stressing
the element of generality in the principles of law recognized by civilized
nations.
36.
37.
38.
39.
40.
41.

42.

Ronald Dworkin, Taking Rights Seriously (Cambridge MA: Harvard
University Press, 1978) at 24.
Ibid at 28.
Herbert Lionel Adolphus Hart, The Concept of Law, 2d (Oxford: Oxford
University Press, 1997) at 263.
Ibid at 260.
Robert Kolb, “Principles as Sources of International Law” (2006) 53
Netherlands International Law Review 1 at 9 [emphasis in original].
Sienho Yee, “Article 38 of the ICJ Statute and Applicable Law: Selected
Issues in Recent Cases” (2016) 7 Journal of International Dispute
Settlement 472 at 488; Committee on Formation of Customary (General)
International Law, “Statement of Principles Applicable to the Formation
of General Customary International Law” (Report delivered at the
International Law Association London Conference, 2000) at 10-11,
online: International Law Association <www.ila-hq.org/download.cfm/
docid/A709CDEB-92D6-4CFA-A61C4CA30217F376>.
The Oxford English Dictionary, 2016, sub verbo “principium”.

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279

The Function of General Principles

Scholars put different emphasis on the function of general principles in
the system of international law. The views range from understanding
general principles as gap-fillers to seeing them as the backbone of the
international legal system. Verdross focuses on their interpretative
function to conclude that both conventional and customary international
law should be interpreted and applied in light of the general principles
of law.43
McNair on the other side emphasises the role of general principles
in investment contracts between states and corporations, reasoning that:
“those contracts which, though not interstate contracts and therefore not
governed by public international law stricto sensu, can more effectively
be regulated by general principles of law than by the special rules of any
territorial system”.44 Clearly, in contrast to Verdross, McNair had in mind
the general principles of private law whose function is to regulate private
as opposed to inter-state relations.
For Koskenniemi, the key function of general principles is that of
constructivist thinking in legal argumentation,45 requiring “constructive
activity from the judge who must provide a set of arguments in light
of which the decision seems coherent with [the community’s] goals and
values”.46 Parry reasons in a similar vein that the general principles are
“not so much a source as a method [for the judge] of applying other
sources”.47 In contrast, others, including Allott, adopt a ‘constitutionalist’
43.
44.

45.

46.
47.

Alfred Verdross, “Les Principes Généraux du Droit dans la Jurisprudence
Internationale” (1935) 52 Rec des Cours 191 at 227.
Arnold McNair, “The General Principles of Law Recognized by Civilized
Nations” (1957) 33 British Yearbook of International Law 1 at 15
[emphasis in original]; see also Wolfgang Friedmann, “The Uses of
‘General Principles’ in the Development of International Law” (1963) 57
American Journal of International Law 279 at 281.
Martti Koskenniemi, “General Principles: Reflections on Constructivist
Thinking in International Law” in Martti Koskenniemi, ed, Sources of
International Law (Burlington VT: Ashgate Publishing, 2000) 359 at 361.
Ibid at 375.
Parry, supra note 5 at 84.

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view observing that it is the ‘generic principles’ that systemize the
interacting sub-systems of society, organise their functioning relationship
to each other and constitute an instance of a system shared by all
societies.48 Cassese too sees the general principles of law as ‘constitutional
principles’ forming the “pinnacle of the legal system”.49 Similarly, Kolb
identifies eight constitutional functions of general principles including:
the unification of the legal system; its ‘flexibilizaton’; a value-catalysis
function; a dynamic and evolutionary function; a guide to interpretation
and corrective function; an autonomous source of law function; a
necessary complement to a series of legal rules and finally; the function
of facilitating legal compromise.50 According to Besson, “principles
ensure guidance and coherence in legal interpretation by reference to a
set of values, but also dynamism through teleological interpretation”.51
Cheng identifies three more practically-oriented functions fulfilled by the
general principles of law: as a source of rules; as “guiding principles of the
juridical order according to which the interpretation and application of
the rules of law are oriented”; and thirdly, as a gap-filler “wherever there
is no formulated rule governing the matter”.52
Overall, there is little accord in doctrine on the meaning, function
and methodology for the identification of general principles as a source
of international law. The only shared understandings seems to be that
general principles are more abstract than other rules and that they play an
important role in the interpretation of international norms. If anything,
scholars seem to add to rather than to resolve the underlying controversy.
48.

49.
50.
51.

52.

Phillip Allott, Eunomia: New Order for a New World (Oxford: Oxford
University Press, 1990) at 167-68; see also Malgosia Fitzmaurice, “History
of Article 38 of the Statute of the International Court of Justice” in
Samatha Besson & Jean d’Aspremont, eds, The Oxford Handbook of
Sources of International Law (Oxford: Oxford University Press: 2017)
[forthcoming in 2017] at 24.
Cassese, supra note 22 at 46, 188.
Kolb, supra note 40 at 27-35.
Samantha Besson, “General Principles in International Law – Whose
Principles?” in Samantha Besson & Pascal Pichonnaz, eds, Les Principes en
Droit Européen (Zurich: Schultess Verlag, 2011) 19 at 32.
Cheng, supra note 5 at 390.

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Accordingly, it is difficult to use scholarly writings as a subsidiary source
for the identification of general principles of law or indeed for the
interpretation of Article 38(1)(c) of the SICJ, so recourse will be had
instead to the preparatory works of the provision and to the subsequent
practice of the ICJ in its application.

III.

Interpreting Article 38(1)(c) of the SICJ

This section now turns to the interpretation of the provision establishing
that “the general principles of law recognized by civilized nations” are one
of the sources of international law to be applied by the ICJ.53 Article 31
of the Vienna Convention on the Law of Treaties54 (“Vienna Convention”)
sets out the general rule of interpretation providing that treaties are to be
interpreted in good faith and in accordance with the ordinary meaning
of their terms. The ordinary meaning of “principle” could be derived, for
example, from the Oxford Dictionary which defines the term as either
“[a] fundamental truth or proposition that serves as the foundation for
a system of behaviour”, as “[a] general law that has numerous special
applications across a wide field”, or “[a] fundamental source or basis
of something”.55 In a similar way, the Institut de Droit International
identifies different meanings of what constitutes a “principle” including
“a norm of a higher or highest order”; “a norm that generates specific
rules”; “a purpose to be achieved, a guiding idea”; or “rules or standards
of interpretation”.56 Accordingly, the ordinary meaning of the term
‘principle’ is quite ambiguous and open to varying interpretations.
The requirement that principles be ‘general’ is also far from clear. It
could refer either to their level of abstraction or indeed to the recognition
53.
54.
55.
56.

SICJ, supra note 1, art 38(1)(c).
23 May 1969, 1155 UNTS 331 art 31 (entered into force 27 January
1980) [Vienna Convention].
The Oxford English Dictionary, 2016, sub verbo “principle”.
Krzysztof Skubiszewski, “The Elaboration of General Multilateral
Conventions and of Non-Contractual Instruments Having a Normative
Function or Objective” (Report delivered at the Session of Cairo, 1987)
online: The Institute of International Law <www.justitiaetpace.org/idiE/
resolutionsE/1987_caire_02_en.PDF>.

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necessary for their formation. The fact that the general principles of law
ought to be “recognized by civilized nations” is underlined by openendedness too. First, the term “recognize” is different from the expression
“accepted as law”, which is the subjective element of custom set out in
Article 38(1)(b).57 Yet, scholars have argued that recognition has more in
common with the subjective attitude of states than with their practice.58
The ICJ seems to confer a subjective meaning on “general recognition” as
well as defining it as an indication that a rule of law or a legal obligation
is involved.59 Second, it is not clear whether all, or a representative
majority of nations, ought to recognise the general principles. The latter
interpretation is supported by the International Law Association, which
is a professional body consisting of eminent international jurists from
different states, arguing that the general principles ought to be recognised
“by a prevailing – or at least a significant – number of nations within each
legal culture”.60 Finally, it is also not obvious why Article 38(1)(c) of the
SICJ requires the recognition of general principles by ‘nations’ whereas
Article 38(1)(a) refers to the recognition of treaty rules by ‘States’ and
whether any difference should be drawn between the two.61 If anything,
it seems that it might be easier to ascertain the acceptance of a rule by
states as legal entities than the recognition of principles by nations, seen
as communities of people. The reference to ‘civilized nations’ could also
be understood as pointing to the international community of states as a
whole.
57.
58.

59.
60.

61.

SICJ, supra note 1, arts 38(1)(b)-(c).
Waldock, supra note 30 at 49; Rein Müllerson, “The Interplay of
Objective and Subjective Elements in Customary Law” in Karl Wellens,
ed, International Law: Theory and Practice – Essays in Honour of Eric Suy
(The Hague: Martinus Nijhoff, 1998) 161 at 163.
North Sea Continental Shelf (Germany v Denmark; Germany v Netherlands),
[1969] ICJ Rep 3 at para 74 [North Sea Cases].
Maurice H Mendelson et al, “The Use of Domestic Law Principles in
the Development of International Law Study Group” (Report delivered
at the Johannesburg Conference, 2016) at 57, online: International
Law Association <www.ila-hq.org/en/committees/study_groups.cfm/
cid/1033>.
SICJ, supra note 1, arts 38(1)(a), (c).

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Given the ambiguities that persist after applying the general rule of
treaty interpretation to Article 38(1)(c) of the SICJ, recourse should be
had to the subsequent practice of states as to its interpretation, as well
as to the preparatory works of the provision as a supplementary means
for ascertaining its meaning in accordance with Article 32 of the Vienna
Convention.62

A.

State Practice on the Interpretation of General
Principles of Law

The subsequent practice of states as to the interpretation and application
of the provision on general principles is difficult to establish, given that
Article 38 of the SICJ is an applicable law clause addressed to the ICJ.63
However, one could resort to indirect evidence of the position of states
with respect to the definition and identification of the general principles
of law.
For example, the Restatement (Third) of Foreign Relations Law64
evidences the US understanding of this source as a form of inchoate
custom derived through a comparative law methodology whose functions
include the development of international law, the administration of
justice and providing rules of reason:
[g]eneral principles common to systems of national law may be resorted to
as an independent source of law. That source of law may be important when
there has not been practice by states sufficient to give the particular principle
status as customary law and the principle has not been legislated by general
international agreement.65

Another source of evidence for the attitudes of states towards general
principles can be found in the replies received in response to the
ILC questionnaire on the Formation and Evidence of Customary

62.
63.
64.
65.

Vienna Convention, supra note 54, art 32.
SICJ, supra note 1, art 38.
Restatement (Third) of Foreign Relations Law, (Philadelphia: American Law
Institute, 1987) §102.
Ibid.

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International Law.66 For instance, the Czech Republic stated that many
of its treaties with states of the former Soviet Union refer to “principles
of international law”, indicating an international law-based approach
towards general principles in its treaty practice, as well as that of states
from the former Soviet Union.67 In a similar manner, El Salvador
affirmed the understanding espoused by its Constitutional Court that the
resolutions of international organisations, even though not themselves
binding, contribute significantly to the formation of the other sources
of international law, including the general principles.68 Ireland referred
to Article 29(3) of its Constitution affirming that “Ireland accepts the
generally recognised principles of international law as its rule of conduct
in its relations with other states”.69 It also relied on a judgment by its
High Court holding that “[t]he most compelling evidence of whether
any principle is generally recognised is the conduct of other states”,
as well as international conventions.70 A narrower international lawbased approach is reflected in Russia’s reply to the ILC, quoting an
interpretative decision of its Constitutional Court holding that “the
66.

67.

68.

69.
70.

Michael Wood, Fourth Report on Formation and Evidence of Customary
International Law, International Law Commission OR, 68th Sess, UN
Doc A/CN.4/695 (2016) at 4-12.
International Law Commission, Czech Republic, Comments of the Czech
Republic on the Specific Issues Raised in Chapter III of the Report of the
International Law Commission on the Work of its 65th Session, No 26/2014,
31 January 2014, at para B-II online: International Law Commission
<legal.un.org/ilc/sessions/66/pdfs/english/ pat_czech_republic.pdf>.
Supreme Court of El Salvador, Judgment No. 26-2006, 12 March
2007, cited in El Salvador, Identificación del Derecho Internacional
Consuetudinario, Informe de la República de El Salvador at 3, online:
International Law Commission <legal.un.org/docs/?path=../ilc/
sessions/66/pdfs/spanish/icil/_el_salvador.pdf&lang=S>.
Permanent Mission of Ireland to the United Nations, Reply on the
Formation and Evidence of Customary International Law, at 127.
Horgan v Ireland, [2003] 2 IR 468 (HC) at 496, cited in International
Law Commission, Ireland, Decisions of National Courts of Ireland Relating
to the Formation and Evidence of Customary International Law, online:
<legal.un.org/docs/?path=../ilc/sessions/66/pdfs/english/icil_ireland.
pdf&lang=E>.

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general principles of international law denote the fundamental imperative
norms of international law, recognised and accepted by the international
community of States as a whole from which no derogation is permitted”.71
Other states adduced practice in support of the comparative lawbased approach to general principles. Germany, for instance, adopted
the definition of its Federal Constitutional Court stating that the general
principles of law are “accepted legal principles, which are consistently
applied in the different domestic legal systems and which can be
transferred to interstate relations”.72 Similarly, Switzerland quoted the
definition of general principles of law adopted by its Federal Council as
“de normes dotées d’une validité universelle car connues de tous les grands
systèmes juridiques dans le monde”.73 Notably, however, Switzerland
noted that its authorities also refer expressly to the general principles
of international customary law or the general principles of international
law as an autonomous source.74 Accordingly, the practice of Switzerland
is most in line with the hybrid approach to the general principles of law.
Overall, the practice of states in the interpretation of the general
principles of law recognised by civilised nations is difficult to establish
and is no less divided than the opinions of eminent scholars. It can be
concluded that the available state practice does not seem to offer any
conclusive evidence of a dominant approach towards the definition or
the identification of the general principles of law.

71.

72.

73.

74.

Russian Federation, Formation and Evidence of Customary International
Law, at 1-2 [translated by author] (referring to Interpretative Decision of
the Plenary of the Constitutional Court No. 5 of 10 October 2003).
Bundesverfassungsgericht (Federal Constitutional Court), Decision of the
Second Chamber of the Second Senate of 4 September 2008, 2 BvR 1475/07
(Germany) at para 20.
Switzerland, La Pratique Suisse Relative à la Détermination du Droit
International Coutumier, at 12, (Quoting FF2010, Conseil federal,
Rapport additionnel au Rapport du 5 mars 2010 sur la relation entre droit
international et droit interne, 30 mars 2011, FF 2011 3401, at 3412).
Ibid.

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B.

Preparatory Works of Article 38(1)(c) of the SICJ

The preparatory works of the SICJ seem to raise more questions than they
answer. Not surprisingly, the preparatory works confirm that the general
principles of law were the most controversial source during the drafting
of Article 38.
The Advisory Committee of Jurists (“ACJ”) appointed by the League
of Nations in 1920 prepared the draft of the SPCIJ, which later became
the SICJ with minor modifications.
The idea of principles forming part of the applicable law was already
present in the early governmental proposals which led the League of
Nations to form the ACJ assigning to it the preparation of the draft
SPCIJ. The Brazilian jurist Clóvis Beviláqua presented a draft on the
organisation of the future court raising the issue as to the law to be
applied in the absence of jus scriptum. He suggested that the tribunal
would fill the lacuna in positive law “guided by the high principles, which
constitute the basis of international judicial order … by abstracting it
directly from the prevailing juridical conception, in which such definitely
secured principles are embodied”.75
Opinions as to the sources to be applied by the Permanent Court
of International Justice (“PCIJ”) in the absence of treaty provisions
varied during the ACJ proceedings. The Five Neutral Powers proposed
that the PCIJ should apply: “recognised rules of international law”; the
International Law Union favoured “the principles of justice”; Switzerland
suggested “the principles of the law of nations”; and Germany advocated
“international customary law and … general principles of law and

75.

Clovis Bevilaqua, “Explanatory Notes on the Draft Concerning the
Organisation of a Permanent Tribunal of International Justice” (Delivered
to The Committee Relating to the Existing Plans for the Establishment
of a Permanent Court of International Justice, 1920) at 371, online:
International Court of Justice <www.icj-cij.org/pcij/serie_D/D_
documents_to_comm_existing_plans.pdf>.

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equity”.76
The first proposed formula on general principles was introduced by the
President of the ACJ – the Belgian jurist Baron Descamps – and referred
to: “the rules of international law as recognized by the legal conscience
of civilized nations”.77 This provision raised the most questions in the
drafting of Article 38 of the SICJ, reflecting the divide on the function
of the Court as la bouche de la loi or as a motor in the development
of international law. The US delegate, Root, did not understand the
meaning of the clause and whether it referred to “something which had
been recognized but nevertheless had not the character of a definite rule of
law”.78 He cautioned that this article “constituted an enlargement of the
jurisdiction of the Court which threatened to destroy it”.79 Similarly, the
British representative, Lord Phillimore was concerned that the provision
on general principles either came within the limits of the provision on
custom or “gave the Court a legislative power”, suggesting instead a
reference to “rules of international law … from whatever source they may
be derived”.80 The Dutch jurist Loder disagreed with these perspectives,
reasoning that general principles referred to “[r]ules recognised and
respected by the whole world” and that “it was precisely the Court’s duty
to develop law, to ‘ripen’ customs and principles universally recognised,
and to crystallise them into positive rules”.81
In response to these criticisms, Baron Descamps elaborated that,
“[t]he principles which must guide the judge, in the solution of the
disputes submitted to him are of vital importance”,82 giving as examples
other instruments containing rules illustrating the ‘legal conscience of
civilized nations’, including Article 7 of the Convention Relative to the
76.

77.
78.
79.
80.
81.
82.

Permanent Court of International Justice, Advisory Committee of Jurists,
Procès-Verbaux of the Proceedings of the Committee June 16 - July 24 1920
with Annexes (The Hague: Van Langenhuysen Brothers, 1920) at 89-91
[Procès-Verbaux].
Ibid at 306.
Ibid at 293-94.
Ibid at 294.
Ibid at 295.
Ibid at 294.
Ibid at 322.

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Yotova, “General Principles of Law Recognized by Civilized Nations”

Creation of an International Prize Court with its reference to “the general
principles of justice and equity”,83 as well as the preamble of the 1899
Hague Convention IV Respecting the Laws and Customs of War on Land84
referring to “the principles of the law of nations, as they result from the
usages established among civilised peoples, from the laws of humanity,
and the dictates of public conscience”.85 Descamps accordingly concluded
that “it is impossible to disregard a fundamental principle of justice in the
application of law, if this principle clearly indicates certain rules, necessary
for the system of international relations, and applicable to the various
circumstances arising in international affairs”.86 This statement indicates
the understanding that the principles referred to in the draft statute were
those applicable on the international plane, which was reinforced in the
debates that followed.
In response, Root confirmed his acceptance of the jurisdiction of
a court applying universally recognised rules of international law but
stressed that he was not disposed to accept legislation through the
application of “general principles, which are interpreted differently in
different countries”.87 Descamps replied that this was a misunderstanding
as the principles varying from country to country were rules of secondary
importance whereas the provision referred to “the fundamental law of
justice and injustice deeply engraved on the heart of every human being
and which is given its highest and most authoritative expression in the
legal conscience of civilized nations”.88 Descamps opined that rather
than giving more discretion to judges, general principles in fact limited
their liberty89 as the solution that the judge was justified to apply had to
be “approved by universal public opinion”.90 The Italian representative,
Ricci-Busatti, gave as examples of such principles the rule that what is
83.
84.
85.
86.
87.
88.
89.
90.

18 October 1907, 205 Cons TS 381 art 7 (not ratified).
18 October 1907, 36 Stat 2277 (entered into force 26 January 1910).
Ibid, preamble.
Procès-Verbaux, supra note 76 at 324 [emphasis added].
Ibid at 309.
Ibid at 310-11.
Ibid at 311.
Ibid at 318.

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not forbidden between states is allowed, the prohibition against abuse of
rights and res judicata.91 Lord Phillimore took the view that the serious
differences of opinion on general principles “arose from the continental
idea of justice” giving too much freedom to the judges.92 He also pointed
out, with notable ethnocentricity, that “all the principles of common law
are applicable to international affairs”93 giving as examples the principle
of res judicata as applied in the Pious Fund Case (United States of America v
Mexico),94 as well as the principle onus probandi incumbit actori.95 Notably,
Lord Phillimore was in the minority advocating for the transposition of
principles of national law on the international plane.
Following these debates, Root presented a draft of the provision
on general principles of law, which was prepared in collaboration with
Lord Phillimore and became the current text of Article 38(1)(c) of the
SICJ.96 The French representative, De Lapradelle asked how were general
principles to be obtained if not from custom unless it was from judicial
decisions and writers.97 Lord Phillimore replied to that question with a
much quoted remark, stating that “the general principles referred to in
point 3 were these which were accepted by all nations in foro domestico,
such as certain principles of procedure, the principle of good faith,
and the principle of res judicata”, adding also the “maxims of law”.98
De Lapradelle admitted that “the principles which formed the bases of
national law, were also sources of international law”, but stressed that
“the only generally recognised principles which exist, however, are those
which have obtained unanimous or quasi-unanimous support”.99 He
accordingly concluded that it was preferable to keep the formula open
“without indicating exactly the sources from which these principles
91.
92.
93.
94.
95.
96.
97.
98.
99.

Ibid at 314-15.
Ibid at 315.
Ibid at 316.
(1902) 9 Reports of International Arbitral Awards 1 (Permanent Court of
Arbitration).
Procès-Verbaux, supra note 76.
Ibid at 331, 334.
Ibid at 335.
Ibid [emphasis in original].
Ibid.

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Yotova, “General Principles of Law Recognized by Civilized Nations”

should be derived”.100 The representative of Brazil, Clovis Bevilaqua,
took the middle ground opining that the reference in the draft was to
“those principles of international law which, before the dispute, were
not rejected by the legal traditions of one of the States concerned in
the dispute”.101 Accordingly, the question as to the source of the general
principles of law was deliberately left open as was their relationship with
customary international law.
During the final vote on Article 38 of the SICJ, De Lapradelle did
not vote as he preferred that the provision referred to “general principles
of law recognised by civilized Nations as interpreted by judicial decisions
and by the teaching of the most highly qualified publicists of the various
countries”; but he knew that his preference for this formula would not
be shared.102 The draft was adopted by a majority vote with the French
and the Norwegian representatives abstaining and the Italian delegate
against.103
The preparatory works of Article 38(1)(c) of the SICJ indicate that
the provision was underlined by a lack of accord. It raised three major
concerns among the ACJ. The first concern was the scope it left for
judicial discretion, which was seen as law-making by the common law
representatives from the US and the UK and as a normal exercise of
judicial reasoning by the civil lawyers. Second, it was unclear throughout
what methodology was to be applied for identifying general principles of
law. Some opined that general principles were to be derived necessarily
from custom, others favoured basing them upon judicial decisions and
the writings of scholars as representative of the consciousness of their
nations and finally the British representative opined that these were
to be distinguished from custom as being rooted in the principles
applied in foro domestico, a view that found limited support by other
ACJ members. It should be noted in this context that the author of the
final version of the provision himself, Elihu Root, expressly rejected the
possibility of deriving general principles from domestic ones as they were
100.
101.
102.
103.

Ibid at 336.
Ibid at 346.
Ibid at 649.
Ibid.

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applied differently in different states. Accordingly, adopting such an
interpretation of the provision he drafted must be somewhat tenuous.
Thirdly, there was disagreement as to whether general principles were
rooted in international law, the majority of the members of the ACJ,
including the President, stressed repeatedly that this was the case. It can
be concluded that the formula “general principles of law recognised by
civilized nations” was left open on purpose for two reasons, one shortterm, the other long-term: namely the underlying lack of agreement
within the ACJ, but also in order to enable the judges to exercise a certain
amount of discretion in deriving general principles from custom, treaties
or the maxims common to most or all legal orders. What the committee
seemed to agree on, however, was that general principles ought to be
generally recognised by most states and that they should be only those
capable of international application.
Another aspect of the preparatory work of Article 38, which has not
attracted much attention, is the single modification to it made when it
became the SICJ, namely the addition in paragraph 1 pursuant to the
second modified proposal of the Chilean delegate, providing that the
Court’s function is “to decide [disputes] in accordance with international
law”.104 Chile’s original proposal was to modify the wording of the
paragraph on general principles to ‘principles of international law’.105
Interestingly, this was dismissed as unnecessary as the majority of the
delegates found it already implicit.106 Accordingly the specification was
added to the paragraph as a whole.
This drafting episode is remarkable in two ways – first, because the
proposal’s original aim was to clarify the provision as referring to the
general principles inherent in the system of international law, and further,
because in effect the second proposal, which was eventually incorporated
in the SICJ, achieved the object of the original one – it clarified that
the reference in paragraph 3 is to principles (capable of international
application) of international law. This interpretation is based on a
104.
105.
106.

UNCIO, Vol. XIII, Doc. 240. (1945), at 164.
Ibid.
Ibid.

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Yotova, “General Principles of Law Recognized by Civilized Nations”

systematic and grammatical reading of Article 38 of the SICJ as a whole,
showing that paragraph 1 of Article 38 applies to all its sub-paragraphs.
In conclusion, the preparatory works of Article 38(1)(c) of the
SICJ indicate that the general principles of law have to be applicable
on the international plane, arguably compatible with international law’s
structure, even if drawn from the principles common to national systems
and that the main criteria for their crystallisation on the international
plane is general recognition by nations which can be illustrated inter alia
through judicial decisions. The general principles of international law
should be read as implicit in Article 38(1)(c) of the SICJ alongside the
general principles derived from domestic laws.

IV.

The Approach of the International Court and its
Predecessor Towards General Principles of Law

Since Article 38 of the SICJ is an applicable law clause addressed to the
ICJ, the methodology used by the ICJ in its interpretation and application
ought to provide the most valuable guidance as to its meaning. Yet,
somewhat disappointingly, the International Court of Justice: Handbook107
updated regularly by the Registry does not address at all the general
principles of law even though it tackles all the other primary and some
of the secondary sources of international law.108 It is useful to assess the
key cases in which the ICJ resorted to general principles of law so as
to establish the process of their distillation. As cautioned by Talmon,
however, methodology is not the strength of the ICJ.109
While the Court has never based a judgment explicitly on the
general principles of law recognised by civilised nations, it arguably
relied implicitly on general principles of international law to decide the
Corfu Channel Case (United Kingdom v Albania)110 (“Corfu Channel”)
107.
108.
109.

110.

International Court of Justice: Handbook, 6d (New York: United Nations
Publications, 2013).
Ibid at 95-99.
Stefan Talmon, “Determining Customary International Law: The ICJ’s
Methodology Between Induction, Deduction and Assertion” (2015) 26
European Journal of International Law 417 at 418.
[1949] ICJ Rep 4 [Corfu Channel].

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discussed below. Notably, the Court relied recently on a general principle
of international law in its Order of Provisional Measures in Questions
Relating to the Seizure and Detention of Certain Documents and Data
(Timor-Leste v Australia)111 (“Timor-Leste v Australia”). This case arose
from the seizure and detention by Australia of certain documents and data
belonging to Timor-Leste. The Applicant argued that the confidentiality
of communications between a lawyer and a client is covered by legal
professional privilege as a general principle of law.112 The ICJ, however,
relied instead on the principle of sovereign equality of states as “one
of the fundamental principles of the international legal order” set out
in the Charter of the United Nations (“Charter”) to conclude that the
rights relied upon by the applicant are plausible.113 This rare instance
where the ICJ had to resort to general principles of law in the absence
of customary or treaty rules to address the dispute is symptomatic of
the ICJ’s adamant reluctance to decide international cases by applying
general principles of law derived from domestic laws using comparative
law methodology. Despite the fact that the arguments of both parties were
centred on the general principles of law, the ICJ deliberately chose to rely
on established general principles of international law, regrettably, without
explaining this different course of reasoning. In his dissenting opinion,
Judge Greenwood expressed justified doubts as to whether the rights of
confidentiality and of non-interference in communications with legal
advisers relied upon by Timor-Leste could be derived from the Charter
rather than from general principles of law.114 The most problematic aspect
of the order, however, is the ICJ’s silence with respect to the applicant’s
express reliance on Article 38(1)(c) of the SICJ as a basis for its claims,
supported by detailed evidence concerning the general recognition of the

111.
112.
113.
114.

Order of 3 March 2014, [2014] ICJ Rep 147.
Ibid at para 24.
Ibid at para 27.
Questions Relating to the Seizure and Detention of Certain Documents and
Data (Timor-Leste v Australia), Dissenting Opinion of Judge Greenwood,
[2014] ICJ Rep 194 at para 12.

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Yotova, “General Principles of Law Recognized by Civilized Nations”

principle in domestic laws and international decisions.115 The ICJ did
not address Australia’s counter-arguments either, which were focused on
the methodology for ascertaining the existence of general principles, and
in particular on the lack of international applicability of the principle
of legal professional privilege.116 Accordingly, Timor-Leste v Australia
does not shed much light on the proper methodology for ascertaining
general principles of law under Article 38(1)(c) of the SICJ, but does
indicate that the general principles of international law can be derived
from widely ratified international treaties, such as the Charter.
The ICJ has referred to ‘general’, ‘fundamental’ and ‘cardinal’
principles on a number of other occasions too. The references to
principles in the case law of the Permanent Court of International Justice
(“PCIJ”) and the ICJ can be grouped in three main categories: (i) general
principles of international law; (ii) general principles of domestic law;
and (iii) general principles of international procedural law. These will be
tackled in turn with specific focus on the methodology used by the ICJ
in their ascertainment and the function they performed in its reasoning.

A.

General Principles of International Law

1.

The Jurisprudence of the PCIJ

The PCIJ referred to general principles of international law on a few
occasions. It referred to the “elementary principle of international law
that a State is entitled to protect its subjects, when injured by acts contrary
to international law committed by another State” in interpreting whether

115.

116.

Questions Relating to the Seizure and Detention of Certain Documents and
Data (Timor-Leste v Australia), “Memorial of the Democratic Republic of
Timor-Leste” (28 April 2014) at paras 6.2-6.23, online: ICJ <www.icj-cij.
org/docket/index.php?p1=3&p2=3&k=17&case=156&code=tla&p3=1>.
Questions Relating to the Seizure and Detention of Certain Documents and
Data (Timor-Leste v Australia), “Counter Memorial of Australia” (28
July 2014) paras 4.19-4.23, online: ICJ <www.icj-cij.org/docket/index.
php?p1=3&p2=3&k=17&case=156&code=tla&p3=1>.

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it had jurisdiction under Article 26 of the Mandate for Palestine117 in
Mavrommatis Palestine Concessions.118 The PCIJ found that in light of the
international law principle of diplomatic protection, it had jurisdiction
over the dispute which was initially between a private person and a state
but had now entered a new phase in the domain of international law.119
Regrettably, the PCIJ did not elaborate on how it reached its finding of
the principle at hand but merely asserted it as self-evident.
In the Case Concerning Certain German Interests in Polish Upper
Silesia120 the PCIJ referred to the “generally accepted principles of
international law” on the treatment of the private property, rights and
interests of foreigners abroad as informing its interpretation of Head
III on Expropriation of the 1922 Germano-Polish Geneva Convention
Concerning Upper Silesia.121 The PCIJ found that Head III constituted
a derogation from the general principles by allowing expropriation and
accordingly should be construed strictly.122 The PCIJ again did not offer
any methodological guidance as to where it derived the generally accepted
principles of international law on the treatment of foreigners abroad.
However, its holding is a good illustration of the use of general principles
as an interpretative tool informing the assessment of treaty provisions in
the broader context of general international law. This judgment can be
seen as a precursor of the principle of systemic integration which was
incorporated later in Article 31(3)(c) of the Vienna Convention.123
In the Case of the S.S. “Lotus”124 (“Lotus”), the PCIJ had to interpret
the reference to “principles of international law” in Article 15 of the 1923
Treaty of Peace with Turkey Signed at Lausanne,125 which regulated the

117.
118.
119.
120.
121.
122.
123.
124.
125.

The Mavrommatis Palestine Concessions, PCIJ Ser. A, No. 2, Judgment of
30 August 1924, at 12.
Ibid.
Ibid.
(1926), PCIJ (Ser A) No 7 [Polish Upper Silesia].
Ibid at 21.
Ibid.
Vienna Convention, supra note 54, art 31(3)(c).
(1927), PCIJ (Ser A) No 10 [Lotus].
24 July 1923, 28 LNTS 11 (entered into force 6 August 1924).

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Yotova, “General Principles of Law Recognized by Civilized Nations”

question of jurisdiction between Turkey and the other parties.126 The PCIJ
understood the reference as denoting “international law as it is applied
between all nations belonging to the community of States … meaning the
principles which are in force between all independent nations and which
therefore apply equally to all the contracting Parties”.127 In a muchquoted paragraph, the PCIJ underlined that:
[i]nternational law governs relations between independent States. The rules
of law binding upon States therefore emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing principles of
law and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed.128

The PCIJ here derived the general principles of international law from
the usages generally accepted as such, i.e. by a process of induction
from customary international law. In its reasoning, the PCIJ referred
both to the community of states and to its common aims, arguably
implying the systemic function of general principles of international
law in the international legal order. This judgment confirms that general
principles can be distilled from the other primary sources of international
law. Notably, it also indicates the understanding of the PCIJ that the
community of states consists of all nations and that, arguably, general
principles ought to be recognised by the international community as a
whole.
Last but not least, the PCIJ briefly discussed general principles
of international law in the Oscar Chinn Case129 where the British
Government invoked them as an alternative source of obligation for the
Belgian Government in addition to the Convention of Saint-Germain-

126.
127.
128.
129.

Ibid.
Lotus, supra note 124 at 16-17 [emphasis added].
Ibid at 18 [emphasis added].
(1934), PCIJ (Ser A/B) No 63 at 79 [Oscar Chinn].

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en-Laye.130 The PCIJ noted that the UK “relies on the obligation
incumbent upon all States to respect the vested rights of foreigners in
their territories”131 but concluded that this obligation was not breached
under the circumstances.132 While the PCIJ did not apply the protection
of vested rights being unwarranted under the facts, it did not question
its status as a general principle of international law either, implicitly
recognising it as such. The reliance on the principle can be seen as an
instance of state practice in this respect too. In its memorial, the UK
invoked the principles as “embodied in the law of nations, as recognised
by the Court itself ”,133 quoting Polish Upper Silesia.134 Furthermore, the
UK advocated that the treaty “must be [interpreted] with reference to
principles of international law”.135 Notably, this is the second PCIJ case
in which the protection of individual rights abroad was assessed as a
general principle of international law.
In Case Concerning the Factory at Chorzów,136 the PCIJ identified two
general principles, notably by reference to case law. First, it observed that:
[i]t is, moreover, 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.137

Secondly, the PCIJ formulated the so-called ‘factory at Chorzów principle’
130.

131.
132.
133.

134.
135.
136.
137.

Treaty of Peace Between the British Empire, France, Italy, Japan and the
United States (The Principle Allied and Associated Powers) and Belgium,
China, Czechoslovakia, Cuba, Greece, Nicaragua, Panama, Portugal,
Roumania, the Serb-Croat-Slovene State and Siam, and Austria, 10
September 1919, 226 Cons TS 8 (entered into force 16 July 1920).
Oscar Chinn, supra note 129 at 81.
Ibid at 87.
The Oscar Chinn Case, “Case submitted by the Government of Great
Britain and Northern Ireland” (12 May 1934), PCIJ (Series C) No 75, 12
at 40 [Oscar Chinn (Great Britain Submissions)].
Polish Upper Silesia, supra note 120.
Oscar Chinn (Great Britain Submissions), supra note 133 at 45.
(1927), PCIJ (Ser A) No 9.
Ibid at 31 [emphasis added].

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on reparation, reasoning:
[t]he essential principle contained in the actual notion of an illegal act – a
principle which seems to be established by international practice and in particular
by the decisions of arbitral tribunals – is that reparation must, as far as
possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been
committed.138

The PCIJ illustrated the existence of the general principles by reference
to international practice, focusing in particular on the decisions of
international arbitral tribunals, as well as, subsidiarily, on the case law of
municipal courts. It is far from clear, however, whether the PCIJ relied on
the decisions of international tribunals establishing certain principles as
a subsidiary source or as direct evidence of their recognition by civilized
nations.
Overall, it is remarkable that all these cases in which the PCIJ
referred to general principles of law concerned the general principles
of international law. Methodologically, the PCIJ either asserted the
existence of the principles as self-evident or derived them from custom
and arbitral decisions. States relied on the case law of the PCIJ to
illustrate the existence of general principles. It can be concluded that the
PCIJ interpreted Article 38(1)(c) of the SPCIJ as including the general
principles of international law and by using an international law-based
methodology for their ascertainment. Furthermore, both the PCIJ and
the states appearing before it used general principles as a tool for systemic
interpretation of the treaty provisions at hand. Accordingly, general
principles played a predominantly interpretative function.

2.

The ICJ

The ICJ similarly has had the occasion to identify and apply general
principles of (international) law. The ICJ resorted to them in its very first
case, the Corfu Channel.139 In assessing Albania’s obligations with respect
to its territorial waters, the ICJ disagreed with the UK’s argument based
138.
139.

Case Concerning the Factory at Chorzow (Claim for Indemnity), PCIJ (Ser
A) No 17 at 47 [emphasis added].
Corfu Channel, supra note 110.

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on the 1907 Convention Relative to the Laying of Automatic Submarine
Contact Mines140 (“Hague Convention XIII”), as it applied only in time of
war, and instead upheld its alternative argument based on “the general
principles of international law and humanity”.141 The ICJ based its
reasoning “on certain general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace
than in war; the principle of freedom of maritime communication; and
every State’s obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States”.142 Unfortunately, the ICJ
asserted these “general and well-recognized principles” as self-evident,
without further discussion as to their origin or the method it used for
their ascertainment. One can speculate that they could have been derived
from the Hague Convention VIII to which the ICJ referred in the same
sentence, yet only to dismiss its application in times of peace. Notably,
general principles here were used as a direct source of legal rights and
obligations rather than as a tool for interpretation. As such, they were
outcome-determinative for the case.
In the Reservations to the Convention on Genocide Advisory Opinion,143
the ICJ held that “the principles underlying the [Genocide] Convention
are principles which are recognized by civilized nations as binding on
States, even without any conventional obligation”.144 This finding was
based on the origins of the Convention on the Prevention and Punishment
of the Crime of Genocide145 (“Genocide Convention”) and in particular
the intention of the UN to condemn and punish genocide as expressed
in General Assembly Resolution 96(I), The Crime of Genocide146 of 11
December 1946 and the objective for the prohibition to be universal
140.
141.
142.
143.
144.
145.
146.

18 October 1907, 36 Stat 2332 (entered into force 26 January 1910).
Corfu Channel, supra note 110 at 9-10.
Ibid at 22.
Advisory Opinion, [1951] ICJ Rep 15 [Genocide Convention].
Ibid at 23.
Convention on the Prevention and Punishment of the Crime of Genocide, 9
December 1948, 78 UNTS 277 (entered into force 12 January 1951).
The Crime of Genocide, GA Res 96(1), UNGAOR, 1st Sess, UN Doc
A/64/Add.1 (1946) 188 [The Crime of Genocide].

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in scope as evidenced in the unanimously adopted General Assembly
Resolution 197(III), Admission of New Members147 of 8 December 1948.148
The ICJ also took into account the ‘objects’ of the Convention, namely
its “purely humanitarian and civilizing purpose … to safeguard the very
existence of certain human groups and … to confirm and endorse the
most elementary principles of morality”.149
The Court in this opinion distilled the ‘principles recognized by
civilized nations’ by reference to their inclusion in the Genocide Convention
and notably, by the intention of the UN and the contracting parties
for the prohibition to be universal in scope as evidenced by the voting
pattern and wording of the two related General Assembly resolutions, as
well as the Preamble of the Genocide Convention.150 It is arguable that the
ICJ distilled the requisite general recognition from the shared objectives
of state parties to the treaty and the votes for the non-binding General
Assembly resolutions, i.e. via deductive reasoning based on the will of the
international community of states as a whole, rather than by induction
from the attitudes of individual states. The moral and humanitarian
dimensions of the Genocide Convention were also a consideration. The soemployed methodology indicates that general principles can be derived
from treaties.
On a few occasions, the ICJ has resorted to legal maxims as axiomatic
evidence of general principles of law. In the Case Concerning the Temple
of Preah Vihear (Cambodia v Thailand)151 for example, the ICJ based its
finding that Thailand acquiesced the contested maps on the maxim qui
tacet consentire videtur si loqui debuisset ac potuisset.152 The ICJ quoted
the Roman law maxim as self-sufficient evidence of recognition of the
principle, without much further analysis. Notably, the argument of
acquiescence was raised by Cambodia in the second and last rounds of
147.
148.
149.
150.
151.
152.

Admission of New Members, GA Res 197(III), UNGAOR, 3rd Sess, UN
Doc A/900 (1948) 30.
Genocide Convention, supra note 143 at 23.
Ibid.
The Crime of Genocide, supra note 146, preamble.
[1962] ICJ Rep 6.
Ibid at 23.

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oral pleadings and was formulated as one based on a principle of law,
without any reference as to its sources.153 Thailand did not contest the
existence of the principle as such but rather its applicability under the
circumstances.154
Another case where a general principle of law was illustrated merely
by reference to a legal maxim is Gabčíkovo-Nagymaros Project (Hungary
v Slovakia),155 where the ICJ sustained the principle ex injuria non oritur
jus.156 Instead of relying on the plethora of states incorporating the
principle into their domestic legislation, the ICJ established its existence
by referring solely to Roberto Ago’s Report on the Draft Articles on
State Responsibility published in the 1980 Yearbook of the International
Law Commission. The argument was raised during the oral hearings by
Hungary, using the same reference as an illustration.157
The Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v United States of America)158 (“Nicaragua”) sheds more
light on the process of distilling general principles of international law
employed by the ICJ, as well as on their relationship with custom. Due
to the multilateral treaty reservation of the United States, the ICJ had to
apply the unwritten sources of international law in deciding the case and
did so by resorting extensively to both custom and general principles. Its
reasoning on the prohibition against use of force is particularly instructive
in this respect as the ICJ noted that: “both the Charter and the customary
international law flow from a common fundamental principle outlawing
the use of force in international relations”.159
In assessing the legal status of the prohibition, the ICJ took note
of the parties’ agreement that “the fundamental principle in this area is
153.
154.
155.
156.
157.

158.
159.

Temple of Preah Vihear, “Oral Arguments Concerning the Merits” (15
June 1962) (ICJ Pleadings (Vol 2) 120 at 208.
Ibid at 440.
[1997] ICJ Rep 7.
Ibid at paras 57, 133.
Project Gabčikovo-Nagymaros (Hungary v Slovakia), “Public sitting held on
Thursday 6 March 1997, at 10 am at the Peace Palace, President Schwebel
presiding” (6 March 1997), CR 97/5 2 at 68.
[1986] ICJ Rep 14.
Ibid at para 181.

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expressed in the terms employed in Article 2, paragraph 4”160 and went
on to satisfy itself that there existed opinio juris in customary international
law to this effect, deducing it “with all due caution” from:
the attitude of the Parties and the attitude of States towards certain General
Assembly resolutions, and particularly resolution 2525 (XXV) entitled
“Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations”.161

The ICJ also drew on the “United States acceptance of the principle of
the prohibition of the use of force which is contained in the declaration
of principles governing the mutual relations of States participating in
the Conference on Security and Co-Operation in Europe (Helsinki,
1 August 1975)”,162 on the referral to Article 2(4) of the Charter “in
statements by State representatives as being not only a principle of
customary international law but also a fundamental or cardinal principle
of such law”,163 as well as on the reference in the US Counter-Memorial
on jurisdiction and admissibility to the prohibition as a “universally
recognized principle of international law”.164
In distilling the ‘fundamental principle outlawing the use of force’
underlying both the Charter and customary law, the ICJ again relied
heavily on the acceptance of states as manifested in their attitude towards
resolutions on principles adopted by international organisations, as well
as on the statements of states’ officials to this effect. Accordingly, the ICJ
deduced the cardinal principle from both treaty and custom as sources of
international law and placed particular emphasis with respect to the latter
on the subjective element required. Notably, the ICJ’s interchangeable
references to the prohibition of the use of force as both a rule of custom
and as a universally recognised principle of international law indicates
either that the same norm can fall under both Articles 38(1)(b) and (c)
of the SICJ or that the ICJ uses the terms indiscriminately. The former
160.
161.
162.
163.
164.

Ibid at para 188.
Ibid.
Ibid at para 189.
Ibid at para 190.
Ibid (for criticism, see Crawford, supra note 23 at 5).

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view is preferable.
In Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970),165 (“Namibia Opinion”), the ICJ assessed at
length self-determination as a principle of international law. It did so
by starting with Article 73 of the Charter, following its development in
General Assembly Resolution 1514 (XV), Declaration on the Granting of
Independence to Colonial Countries and Peoples of 14 December 1960 and
the resulting birth of new states.166 Based on these considerations, the
ICJ concluded that Article 22 of the League of Nations Covenant ought to
be interpreted not statically but in an evolutionary manner, taking into
consideration new developments of international law through the Charter
and custom, including in particular the principle of self-determination.167
The ICJ stressed that “an international instrument has to be interpreted
and applied within the framework of the entire legal system prevailing at
the time of the interpretation” and that it ought to faithfully discharge
its functions by not ignoring the areas where “the corpus iuris gentium has
been considerably enriched”.168
This case is another good example of the interpretative function
of the general principles of international law in relation to treaties,
particularly by way of systemic integration of their terms in the system of
international law. It also proclaims the so-called principle of evolutionary
interpretation of dynamic concepts, again by reference to the newly
developed principles of international law. Last but not least, it confirms
the ICJ’s approach of giving particular weight to General Assembly
resolutions in the ascertainment of the recognition, content and status
of the general principles of international law. It can be deduced that
the collective acceptance of states expressed in universal treaties such as
the Charter and in certain General Assembly resolutions can constitute
evidence of general recognition by civilised nations under Article 38(1)
(c) of the SICJ.
165.
166.
167.
168.

Advisory Opinion, [1971] ICJ Rep 16 [Namibia Opinion].
Ibid at para 52.
Ibid at para 53.
Ibid [emphasis in original].

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Yotova, “General Principles of Law Recognized by Civilized Nations”

The so-identified approach in distilling general principles of
international law was followed in the Western Sahara Advisory Opinion,169
again in relation to the principle of self-determination.170 The ICJ assessed
the principle by reference to the Charter, to its earlier Namibia Opinion,
to General Assembly Resolutions 1514 (XV) and 1541 (XV) and to the
General Assembly Resolution 2625 (XXV) Declarations on the Principles of
International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations (“Declaration
on Friendly Relations”) Based on this evidence, the ICJ concluded that the
validity of the principle was not affected by instances where the General
Assembly dispensed with the requirement of consulting the inhabitants of
a given territory. Accordingly, the widespread and consistent recognition
of self-determination was sufficient to validate the principle even in the
face of instances of conflicting practice.
In Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada v United States of America),171 a Chamber of the ICJ had to
interpret the applicable law clause in the Special Agreement172 between
Canada and the United States, referring to “the principles and rules of
international law”.173 In doing so, it made important pronouncements
on the distinction between rules and principles, as well as on the
methodologies for the ascertainment of principles of international law.
The Chamber expressly acknowledged that: “‘principles’ clearly means
principles of law, that is, it also includes rules of international law in
whose case the use of the term ‘principles’ may be justified because of
their more general and more fundamental character”,174 putting to rest
the long scholarly debate as to whether the reference to general principles
in Article 38(1)(c) of the SICJ includes or excludes the general principles
of international law.
The Chamber interpreted the applicable law clause in the Special
169.
170.
171.
172.
173.
174.

Western Sahara, Advisory Opinion, [1975] ICJ Rep 12 [Western Sahara].
Ibid at paras 55-60.
[1984] ICJ Rep 246 [Gulf of Maine].
Ibid at Special Agreement.
Ibid at para 79.
Ibid.

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Agreement as referring primarily to rules and principles of customary law.
It stressed that in the context of maritime delimitation, “the practice is
still rather sparse, owing to the relative newness of the question”.175 The
Chamber went on to define its methodology:
[f ]or the purpose of the Chamber at the present stage of its reasoning, which
is to ascertain the principles and rules of international law which in general
govern the subject of maritime delimitation, reference will be made to
conventions (Art. 38, para. 1 (a)) and international custom (para. 1 (b)), to
the definition of which the judicial decisions (para. 1(d)) either of the Court
or of arbitration tribunals have already made a substantial contribution. So
far as conventions are concerned, only “general conventions”, including, inter
alia, the conventions codifying the law of the sea to which the two States are
parties, can be considered … mainly because it is in codifying conventions that
principles and rules of general application can be identified. Such conventions
must, moreover, be seen against the background of customary international
law and interpreted in its light.176

The Chamber considered in particular the 1958 Convention on the
Continental Shelf;177 the United Nations Convention on the Law of the Sea178
(noting in particular the symmetry of their provisions on continental
shelf delimitation); as well as the case law of the ICJ, including the North
Sea Continental Shelf (Germany v Denmark; Germany v Netherlands)179
(“North Sea Continental Shelf”), Continental Shelf (Tunisia/Libyan Arab
Jamahiriya);180 and an arbitral award.181
The methodology for establishing general principles of international
law is fully in line with the PCIJ’s approach in Lotus and the ICJ’s previous
case law. It confirms that such principles can be deduced from the other
sources of international law including custom and, notably, treaties of
general character. Furthermore, it indicates the special authoritative
weight of the previous pronouncements on general principles of the
175.
176.
177.
178.
179.
180.
181.

Ibid at para 83.
Ibid.
29 April 1958, 499 UNTS No 7302 at 312 (entered into force 10 June
1964).
10 December 1982, 397 UNTS No 31363 (entered into force 16
November 1994).
North Sea Cases, supra note 59.
[1981] ICJ Rep 3.
Gulf of Maine, supra note 171 at paras 84-96.

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ICJ itself, as well as of arbitral tribunals treated within the confines of a
subsidiary source rather than as direct evidence of recognition. Finally,
the approach underlines the requirement of generality with respect to the
recognition required.
In Frontier Dispute (Burkina Faso/Republic of Mali),182 another
Chamber of the Court interpreted and applied the principle of uti possidetis
juris. When asked under the Special Agreement183 between Burkina Faso
and Mali to settle the dispute “based in particular on respect for the
principle of intangibility of frontiers inherited from colonization”,184 the
Chamber held it “cannot disregard the principle of uti possidetis juris”,
emphasising “its general scope”.185 The Chamber observed that: “the
principle is not a special rule which pertains solely to one specific system of
international law” but “is a general principle, which is logically connected
with the phenomenon of the obtaining of independence, wherever
it occurs”.186 It illustrated this generality by reference to: “the many
declarations made by African leaders in the dawn of independence”,187 a
1964 resolution of the Organization of African Unity (“OAU”) and “the
numerous solemn affirmations of the intangibility of frontiers existing
at the time of independence of African States, whether made by senior
African statesmen or by organs of the Organization of the African Unity
itself … [that] recognize and confirm an existing principle”.188 The
Chamber did acknowledge that the practice supporting the principle was
limited to Spanish America and Africa,189 but held nonetheless that the
rule was of general scope based on the numerous declarations by states
and international organisations. Accordingly, the Chamber applied the
general principle in deciding the case, even if it was not expressly referred
to under the Special Agreement and despite the objection that the two
182.
183.
184.
185.
186.
187.
188.
189.

[1986] ICJ Rep 554.
Ibid at para 2.
Ibid at para 19.
Ibid at para 20.
Ibid.
Ibid at para 22.
Ibid at paras 21-24.
Ibid at paras 20-21.

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disputing states achieved independence before its proclamation by the
OAU in the 1964 resolution.190
The functional approach of the Chamber is significant as it confirms
the trend of applying general principles of international law by way
of systemic integration, even where the applicable law clause does
not expressly include them. Furthermore, the methodology used in
ascertaining the existence of uti possidetis is coherent with the previous
instances, identifying general principles of international law by focusing
on the existence of general recognition, evidenced by the states’ support to
resolutions of international organisations, as well as by official statements
of senior statesmen and notably, of organs of the OAU. Notably, in this
case, the Chamber seemed to link the requirement of generality to the
scope of application of the principle, rather than to its recognition.
In East Timor (Portugal v Australia)191 (“East Timor”), the ICJ affirmed
that self-determination “is one of the essential principles of contemporary
international law”192 based on its recognition by the Charter and on the
jurisprudence of the ICJ, in particular the Namibia and Western Sahara
Advisory Opinions.193 The ICJ’s reasoning indicates that it is likely to
follow its own case law establishing that a given rule has the character of
a general principle of international law.
Similarly, in the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory Advisory Opinion,194 the ICJ assessed the
legality of the Israeli wall in the occupied Palestinian territory by reference
to the applicable rules and principles of international law, including the
principle of self-determination.195 Following its methodology in East
Timor and previous cases, the ICJ recalled that the principle was set out
in: the Charter; the Declaration on Friendly Relations; and in its previous
case law, including its Namibia Opinion as well as its opinion in East
190.
191.
192.
193.
194.
195.

Ibid at para 26.
[1995] ICJ Rep 90.
Ibid at para 29.
Ibid.
Advisory Opinion, [2004] ICJ Rep 136 [Legal Consequences of the
Construction of a Wall].
Ibid at paras 86-88.

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Timor.196
In the Legality of the Threat or Use of Nuclear Weapons Advisory
Opinion,197 (“Nuclear Weapons”) the ICJ had to identify the principles
and rules of humanitarian law applicable in armed conflict due to the
absence of a conventional or customary rule on the legality of the threat
or use of nuclear weapons.198 It qualified these as “cardinal principles
contained in the texts constituting the fabric of humanitarian law”199
and derived them from the broadly ratified 1899 and 1907 Hague
Conventions, the 1907 Hague Regulations Respecting the Laws and Customs
of War on Land, the 1925 Geneva Protocol to the Hague Convention IV,
the Geneva Conventions of 1864, 1906, 1929 and 1949, including the
Additional Protocols and by reference to the Martens Clause in the
preamble of the Convention (II) With Respect to the Laws and Conventions
of War on Land.The ICJ also recalled its holding in Corfu Channel200 and
the statement of the Nuremberg International Military Tribunal that the
humanitarian rules in the Hague Convention IV “were recognized by all
civilized nations”.201 It took into account as an additional consideration
that the humanitarian law principles are “so fundamental to the respect
of the human person and ‘elementary considerations of humanity’” to
conclude that:
[t]he extensive codification of humanitarian law and the extent of the accession
to the resultant treaties, as well as the fact that the denunciation clauses that
existed in the codification instruments have never been used, have provided
the international community with a corpus of treaty rules the great majority of
which had already become customary and which reflected the most universally
recognized humanitarian principles.202

The ICJ conceptualised the rules of humanitarian law as fundamental
and intransgressible principles of customary law. It established their status
196.
197.
198.
199.
200.
201.
202.

Ibid at para 88.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996]
ICJ Rep 226 [Nuclear Weapons].
Ibid at para 74.
Ibid at para 78.
Ibid at para 79.
Ibid at para 80.
Ibid at para 82 [emphasis added].

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by reference to the wide adherence to the conventions incorporating
them, to international case law, as well as to their moral or humanitarian
dimension. This methodology is arguably more akin to the one used in
establishing general principles of international law rather than custom by
focusing on the opinio juris of states and in this case, on its humanitarian
dimension. This is illustrated by the reliance on the Martens Clause,
which expressly refers to “the principles of international law derived from
established custom … the principles of humanity and … the dictates of
public conscience”.203 However, the ICJ’s reasoning in this case highlights
again the lack of clear boundaries between custom and general principles.
Another “basic principle” that the ICJ applied in this case is good faith.
It identified it by reference to seven sources: Article 2(2) of the Charter;
the Declaration on Friendly Relations; Security-Council Resolution 984
(1995); the Final Act of the Conference on Security and Co-Operation in
Europe; the final document of the Review and Extension Conference of
the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons;
the Vienna Convention; and its Nuclear Tests case. Again, the ICJ’s
methodology focused on the incorporation of the principle in universal
conventions, in resolutions expressing general recognition as well as on
its own case law as a subsidiary source.
In conclusion, general principles were used by the ICJ and its
predecessor where specifically mandated by the applicable law clause and
by way of systemic integration in order to offer an interpretation that
took into account new developments of the international legal system, as
well as gap-fillers in the absence of crystallised custom i.e. in Lotus and
the Nuclear Weapons opinion. The function of general principles most
commonly informed the interpretation of treaties by way of systemic
integration and evolutionary interpretation. However, in a few instances
such as the Corfu Channel, Nicaragua and Timor-Leste v Australia,
the general principles of international law served as a direct source of
international obligations.
203.

Ibid at para 78, citing Convention (II) with Respect to the Law and
Customs of War on Land and its annex: Regulations concerning the Laws and
Customs of War on Land, 29 July 1899, 32 Stat 1803 (entered into force 4
September 1900).

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The methodology used by the ICJ for the ascertainment of general
principles is somewhat inconsistent but has developed considerably over
time. While the PCIJ asserted general principles as self-evident legal
axioms, the ICJ gradually developed a more coherent methodology for
their identification. A few common trends should be highlighted: first,
the ICJ gives decisive weight to the recognition of the principles by
the international community of states as a whole, expressed in voting
patterns in general and regional international organisations; in official
statements; as well as the wide participation of states in general treaties.
Notably, the ICJ ascertains general recognition by deductive reasoning
rather than by looking for evidence of recognition on a state-by-state
basis. Such general recognition has at times outweighed practice to the
contrary effect. Secondly, the ICJ has deduced general principles from
the other main sources of international law, namely treaties and custom,
underlying the former’s more general or fundamental character. However,
it is clear from the case law of the ICJ that the same norm can fall under
both categories. Thirdly, the ICJ assigns special authoritative weight to
the findings of general principles in its own case law and at times in the
case law of other courts and arbitral tribunals used as a subsidiary means
for the identification of general principles.

B.

General Principles of Private Law

On even fewer occasions, the ICJ and its predecessor resorted directly
to general principles of domestic law. This occurred when faced with
questions of domestic rather than international law.
In Mavrommatis Jerusalem Concessions (Greek Republic v His Britannic
Majesty’s Government),204 the ICJ briefly referred to the British argument
based on “those principles which seem to be generally accepted in regard
to contracts” in assessing the validity of the concession contract in light
of the purported error regarding Mavrommatis’s nationality, noted as
Ottoman in the contract but actually Greek.205 Following these principles,

204.
205.

(1925), PCIJ (Ser A) No 5.
Ibid at 30.

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however, the ICJ found that the contract was valid.206 It is notable that
the UK did not rely on Turkish law, which was the proper law of the
contract, but on the general principles of contract law instead.207
In Barcelona Traction and Power Company, Limited (Belgium v
Spain),208 the ICJ not only took cognizance but also referred “to rules
generally accepted by municipal legal systems which recognize the
limited company whose capital is represented by shares, and not to the
municipal law of a particular State”.209 This holding was in response to
Spain’s invocation in its Counter-Memorial of the general principle of
separation of the legal personality of the corporation from its shareholders
recognised “dans la genéralité des systèmes juridiques, il est fait abstraction
de l’idée d’autonomie de la personnalité morale”.210 Belgium objected
that Spain: “ne peut étre purement et simplement déduire d’institutions
du droit prive interne”, cautioning against such an unacceptable method
of transposing private law constructs to the international plane without
taking into account the specificities of inter-state relations.211 The ICJ,
however, followed Spain’s approach.
It can be observed that the ICJ and its predecessor have considered
and applied general principles of law common to the domestic laws of
‘civilized’ nations in the areas of contract and company law, but only
when invoked by the parties and solely with respect to matters regulated
by domestic law. The PCIJ and the ICJ referred to those principles
206.
207.

208.
209.
210.

211.

Ibid.
Ibid (stating: “The British Government does not contend that, in Turkish
law, the Ottoman nationality of the beneficiary was a condition essential
to the validity of concessions; moreover, no law nor any document in
this sense regarding the practice of the courts or competent authorities in
Turkey has been produced” at 29).
Second Phase Judgment, [1970] ICJ Rep 3.
Ibid at para 50.
Barcelona Traction, Light and Power Company Limited (Belgium v Spain),
“Pleadings, Oral Arguments, Documents” (19 June 1962) [1962] ICJ
Pleadings (Vol 4) 5 at para 103.
Barcelona Traction, Light and Power Company Limited (Belgium v Spain),
“Pleadings, Oral Arguments, Documents” (19 June 1962) [1962] ICJ
Pleadings (Vol 5) 1 at 641.

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specifically as rules of domestic law, rather than as general principles
of law under the SPCIJ and the SICJ, leaving it open to interpretation
whether it qualified them as such. The methodology used by the ICJ for
the ascertainment of these domestic principles seems to be more one of
assertion than of comprehensive comparative law study. It can also be
inferred that in practice, the burden of proving those principles has lain
on the parties rather than the ICJ.
In contrast, in cases where principles of municipal law have been
invoked before the ICJ to inform the application of international law, the
ICJ has declined to apply them. This could arguably be due to the fact
that the purported ‘general principles’ were not capable of international
application.
In the Case Concerning Right of Passage over Indian Territory (Portugal
v India),212 Portugal argued that “the municipal laws of the civilized
nations are unanimous in recognizing that the holder of enclaved land
has the right, for purposes of access to it, to pass through adjoining
land” and that “it is rare to find a principle more clearly emerging from
the universal practice of States in foro domestico and more perfectly
meeting the requirements of Article 38, paragraph I(c), of the Statute
of the Court”.213 In support of this proposition, Portugal appended a
legal opinion by Professor Max Rheinstein surveying the national laws
of 64 states containing the right to access to enclaved land.214 The ICJ,
however, based its conclusions on the established practice between the
British and Indian authorities and Portugal, observing that it did “not
consider it necessary to examine whether general international custom
or the general principles of law recognized by civilized nations may lead
to the same result”,215 and noted that “[s]uch a particular practice must
prevail over any general rules”.216
In South West Africa, Second Phase (Ethiopia v South Africa; Liberia
212.
213.
214.
215.
216.

[1960] ICJ Rep 6 [Passage over Indian Territory].
Ibid at 43.
Right to Passage over Indian Territory (Portugal v India), (July 1958) ICJ
Pleadings (Vol 1) 397 at 543ff, 858ff.
Passage over Indian Territory, supra note 212 at 43.
Ibid at 44.

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v South Africa),217 (“South West Africa”) the ICJ refused the application
of actio popularis as a general principle of law common to the national
systems of most nations explicitly due to its inapplicability to international
law at the time, noting:
the argument amounts 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 Article 38, paragraph
1 (c), of its Statute.218

In North Sea Continental Shelf, Germany argued that, “the principle of
the just and equitable share was one of the recognized general principles
of law which, by virtue of paragraph 1(c) of the same Article, the ICJ was
entitled to apply as a matter of the justitia distributiva which entered into
all legal systems”.219 The ICJ dismissed this argument as being “wholly at
variance with what the Court entertains no doubt is the most fundamental
of all the rules of law relating to the continental shelf, enshrined in Article
2 of the 1958 Geneva Convention [on the Continental Shelf ]” – that is
to say that the rights of the coastal state over the continental shelf exist
ipso facto by virtue of its sovereignty over the land.220 This case illustrates
an additional limitation to the application of general principles derived
from domestic law on the international plane, namely, that they cannot
apply where in conflict with a rule of international law as the latter always
prevails.
Mexico argued in Avena and Other Mexican Nationals (Mexico v
United States of America)221 that the “exclusionary rule” was a general
principle of law under Article 38(1)(c) of the SICJ.222 The ICJ refused
to uphold this submission on the basis that it related to a question it
already discussed sufficiently, reasoning further: “this question is one
217.
218.
219.
220.
221.
222.

Second Phase Judgment, [1966] ICJ Rep 6 [South West Africa].
Ibid at para 88.
North Sea Cases, supra note 59 at para 17.
Ibid at para 19.
[2004] ICJ Rep 12.
Ibid at para 127.

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which has to be examined under the concrete circumstances of each case
by the United States courts concerned in the process of their review and
reconsideration”.223
Overall, the ICJ has been very reluctant to address and uphold rights
and obligations based on ‘general principles’ derived from an inductive
comparative law analysis of domestic legal systems. Notably, the ICJ itself
has never resorted to a comparative law methodology in identifying a
general principle applicable to international disputes.

C.

General Principles of Procedural Law

The general principles of (international) procedural law are seemingly the
most resorted to and coherently identified category of general principles
in the case law of the ICJ and its predecessor. Accordingly, it is important
to identify the proper methodology for their ascertainment.
In some cases, the ICJ gave methodological guidance as to the
evidence it used for the general recognition of principles of procedural
law, including treaties, international decisions and even domestic laws, in
line with the hybrid theory of general principles. In Electricity Company
of Sofia and Bulgaria (Belgium v Bulgaria),224 (“Electricity Company”) the
PCIJ affirmed that the provision of the SPCIJ on provisional measures
“applies the principle universally accepted by international tribunals and
likewise laid down in many conventions to which Bulgaria has been a party
– to the effect that the parties to a case must abstain from any measure
capable of exercising a prejudicial effect in regard to the execution of the
decision to be given”.225
In Corfu Channel, the ICJ held that “indirect evidence is admitted in
all systems of law, and its use is recognized by international decisions”.226
Based on this principle, it allowed the United Kingdom a “more liberal
recourse to inferences of fact and circumstantial evidence”.227

223.
224.
225.
226.
227.

Ibid.
Order of 4 April 1939, PCIJ (Ser A/B) No 79.
Ibid at 199 [emphasis added].
Corfu Channel, supra note 110 at 18.
Ibid.

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In LaGrand (Germany v United States of America),228 the ICJ for
the first time formulated expressly the binding character of its orders
for provisional measures, giving particular weight to “the existence of
a principle which has already been recognized by the Permanent Court
of International Justice”229 in the Electricity Company case. The ICJ also
recalled its own previous case law indicating provisional measures to
stop the aggravation or extension of disputes as an illustration of the
principle.230 It used the so-established principle to interpret as binding
the character of orders under Article 41 of the SICJ. The ICJ followed
a similar approach in identifying general principles of procedural law in
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia v Singapore),231 holding that “[i]t is a general principle
of law, confirmed by the jurisprudence of this Court, that a party which
advances a point of fact in support of its claim must establish that fact”.232
In a number of cases, the ICJ asserted general principles of procedural
law as self-evident, without much methodological guidance. In the Effect
of Awards of Compensation Made by the UN Administrative Tribunal
Advisory Opinion,233 the ICJ recalled the “well-established and generally
recognized principle of law, [that] a judgment rendered by such a judicial
body is res judicata and has binding force between the parties to the
dispute”.234 In the Application for Review of Judgment No. 158 of the UN
Administrative Tribunal, the ICJ noted that:
[g]eneral principles of law … 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.235

228.
229.
230.
231.
232.
233.
234.
235.

[2001] ICJ Rep 446.
Ibid at para 103.
Ibid.
[2008] ICJ Rep 12.
Ibid at para 45.
Advisory Opinion, [1954] ICJ Rep 47.
Ibid at 53.
Application for Review of Judgment No 158 of the United Nations
Administrative Tribunal, Advisory Opinion, [1973] ICJ Rep 166 at para
36.

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In Difference Relating to Immunity from Legal Process of a Special Rapporteur
of the Commission on Human Rights,236 the Cumarasawamy opinion, the
ICJ held that Malaysia was under an obligation to respect “a generally
recognized principle of procedural law” that “questions of immunity
are … preliminary issues which must be expeditiously decided in limine
litis”.237 In Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras),238 the Chamber of the ICJ in according permission for the
first time under Article 62 of the SICJ observed that, “the intervening
State does not become party to the proceedings, and does not acquire the
rights, or become subject to the obligations, which attach to the status of
a party, under the Statute and Rules of Court, or the general principles of
procedural law”.239 As observed by Rosenne, the formulation of “‘general
principles of procedural law’ is new to the lexicon of the International
Court and its implications are not self evident”.240 In South West Africa,
the ICJ, again axiomatically, recalled the “universal and necessary, but yet
almost elementary principle of procedural law that a distinction has to
be made between, on the one hand, the right to activate a court and the
right of the court to examine the merits of the claim, and, on the other,
the plaintiff party’s legal right in respect of the subject-matter of that
which it claims”.241
It can be observed that the ICJ resorts to general principles of
procedural law with some regularity, either asserting them as longstanding legal axioms arguably typical for all legal systems, deriving them
from international treaties or from comparating domestic laws. The ICJ
also commonly resorts to international judicial and arbitral decisions,
arguably as a subsidiary source for the ascertainment of general principles
of procedural law or as a short cut. This approach is not fully consistent
236.
237.
238.
239.
240.

241.

Advisory Opinion, [1999] ICJ Rep 62.
Ibid at para 63.
Judgment of 13 September 1990, [1990] ICJ Rep 92.
Ibid at para 102 [emphasis added].
Shabtai Rosenne, The Law and Practice of the International Court 19202005, 4d , vol 3 (Leiden/Boston: Martinus Nijhoff Publishers, 2006) at
1023.
South West Africa, supra note 217 at para 64.

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with the ICJ’s methodology used in ascertaining general principles of
international law given its readiness to resort to comparative law on
matters of procedure.242 This could be explained by the easier adaptability
and applicability of domestic procedural principles to the international
legal process, given the inherent similarities between the two. However,
it would be desirable for the ICJ to be more explicit in elaborating its
methodology and justifying the differences in ascertaining general
principles of substantive and of procedural law.

D.

General Principles in Separate and Dissenting
Opinions

General principles of law featured in a number of the individual opinions
of the judges of the PCIJ and the ICJ. While some judges advocated
importing general principles on the basis of a comparative law study
of domestic laws, others conceptualised them as natural law constructs
penetrating the international legal order, invariably linked to the
protection of human dignity.

1.

General Principles as Private Law Analogies

Most judges who relied on general principles in their individual or
dissenting opinions adopted a comparative law methodology, arguing
for their transposability on the international plane by way of private
law analogy. Judge Anzilotti relied on principles of civil procedure
in his dissent in Chorzów Factory,243 to argue that the principle of res
judicata should cover and preclude an action for indemnity based upon a
declaratory judgment deciding it as a preliminary issue.244 Judge Anzilotti
reasoned that, “if there be a case in which it is legitimate to have recourse,
in the absence of conventions and custom, to ‘the general principles of
law recognized by civilized nations’, mentioned in No. 3 of Article 38 of
the Statute, that case is assuredly the present one”.245
242.
243.
244.
245.

Corfu Channel, supra note 110 at 18.
(1927), PCIJ (Ser A) No 13.
Ibid at 27.
Ibid.

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Judge Hudson discussed the exceptio non adimpleti contractus as a
general principle in a much-quoted Individual Opinion in Diversion
of Water From the Meuse (Netherlands v Belgium).246 He derived it from
the Anglo-American legal maxims of equity, supported by references to
Roman law and the German civil code.247 Judge Hudson did caution
however that “[t]he general principle is one of which an international
tribunal should make a very sparing application” in suggesting its
application by analogy to international treaties.248
In his Separate Opinion in International Status of South-West Africa,249
Judge McNair addressed South Africa’s argument that the Mandate
System under the League of Nations should be interpreted based on an
analogy of the contract of mandate from private law.250 Judge McNair
cautioned, fully in line with the case law of the Court, that:
[t]he way in which international law borrows from this source is not by means
of importing private law institutions ‘lock, stock and barrel’, ready made and
fully equipped with a set of rules. It would be difficult to reconcile such a
process with the application of “the general principles of law”. In my opinion,
the true view of the duty of international tribunals in this matter is to regard
any features or terminology which are reminiscent of the rules and institutions
of private law as an indication of policy and principles rather than as directly
importing these rules and institutions.251

While acknowledging that Anglo-American trust law, as well as the
case law of the two Mandatories, South Africa and Australia, contained
a confirmation of principle akin to the Mandate System,252 McNair
stressed the public interest and the principle of ‘sacred trust of civilization’
underlying the new Mandate regime to conclude that it had more than
a purely contractual basis and accordingly to reject the analogy.253
Judge McNair’s approach is convincing in confirming that principles of
municipal law could inspire the future development of similar institutions
246.
247.
248.
249.
250.
251.
252.
253.

(1937), PCIJ (Ser A/B) No 70 at 73.
Ibid at 77.
Ibid.
Advisory Opinion, [1950] ICJ Rep 128.
Ibid at 146.
Ibid at 148.
Ibid at 149-50.
Ibid at 154-55.

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of international law while stressing that private law remains an analogy,
rather than a direct source of international law.
Judge Lauterpacht has argued that the principle of severance could
be applied as a general principle of law “as developed in municipal
law” to treat as invalid part of the French declaration accepting as
compulsory the jurisdiction of the ICJ under Article 36(2) of the SICJ.254
In proposing this private law analogy, Judge Lauterpacht admitted that
“[i]nternational practice on the subject is not sufficiently abundant to
permit a confident attempt at generalization” on this question.255 Indeed,
it was over 50 years later in 2011 that the ILC finished its work on the
Guide to Practice on Reservations to Treaties that incorporated the principle
at hand with some qualifications.256
Judge Ammoun too resorted to municipal law reasoning in arguing
that the principle of equity should be applied in North Sea Continental
Shelf.257 He referred to the legal systems of Western Europe, Latin America,
China, Asian and African countries, Muslim law, Hindu law and Soviet
law, to conclude that: “[a] general principle of law has consequently
become established, which the law of nations could not refrain from
accepting, and which founds legal relations between nations on equity
and justice”.258 In addition, Judge Ammoun felt the need to illustrate
that the so-established general principle was ‘translated’ in international
practice, recalling the Truman Proclamation and the statements of various
Arab states.259
Two judges relied on general principles derived from comparative
law in interpreting the joint responsibility of states. In Certain Phosphate
Lands in Nauru (Nauru v Australia),260 Judge Shahabudeen invoked the
254.
255.
256.

257.
258.
259.
260.

Case of Certain Norwegian Loans (France v Norway), [1957] ICJ Rep 9 at
56-57.
Ibid at 56.
International Law Commission, Report of the International Law
Commission, 63rd Sess, UNGAOR, 66th Sess, Supp No 10, UN Doc
A/66/10/Add 1 (2011).
North Sea Cases, supra note 59 at 139.
Ibid at 140.
Ibid.
[1992] ICJ Rep 240.

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“principles of the law of trust in English law” to argue that the joint and
several responsibility of Australia, New Zealand and the United Kingdom
was preferable to their exclusively joint responsibility triggering the
principle of necessary third party.261 In Oil Platforms (Islamic Republic of
Iran v United States of America),262 Judge Simma undertook a comparative
law analysis in support of his argument that “the principle of joint-andseveral liability common to the jurisdictions … considered can properly
be regarded as a ‘general principle of law’ within the meaning of Article
38, paragraph 1(c), of the Court’s Statute”.263 He referred in particular to
cases from the US and Canada, to French, Swiss and German tort law,
noting that: “the question has been taken up and solved by these legal
systems with a consistency that is striking”.264 Notably, Judge Simma
did not stop at the municipal law analogy but adopted the qualified
approach by also referring to the principles set out in the ILC Articles on
Responsibility of States for Internationally Wrongful Acts as “an authoritative
source addressing the issue”.265
It can be observed that only a few judges have relied solely on
comparative law as evidence for the recognition of general principles of
law. A number of judges cautioned against the direct transposition of
private law principles on the international plane and a few have illustrated
the international applicability of the identified principles by reference to
international practice. The approaches of qualified transposition and of
going beyond mere private law analogies by reference to international
practice are preferable.

2.

General Principles as Natural Law

Fewer judges have conceptualised general principles as deriving from
natural law. Two of the strongest proponents of this approach are Judges
Tanaka and Cançado Trindade. In his Dissenting Opinion in South West

261.
262.
263.
264.
265.

Ibid at 285.
[2003] ICJ Rep 161 [Oil Platforms].
Ibid at 324.
Ibid at 354-57.
Ibid at 358.

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Africa,266 Judge Tanaka stated that: “the concept of human rights and
of their protection is included in the general principles” mentioned in
Article 38(1)(c) of the SICJ.267 He reasoned that natural law elements
were inherent in the provision giving it “supra-national and suprapositive character”.268 With respect to the methodology for establishing
general principles, Judge Tanaka noted that “recognition is of a very
elastic nature”, adducing as evidence the fact that human rights are “an
integral part of the constitutions of most of the civilized countries in the
world”.269 He noted further that recognition can also be manifested by
“the attitude of delegations of member States in cases of participation in
resolutions, declarations, etc. … adopted by the organs of the League
of Nations, the United Nations and other organizations”, as well as in
custom and international conventions.270
In Pulp Mills on the River Uruguay (Argentina v Uruguay),271 Judge
Cançado Trindade conceptualised general principles of law “as an
indication of the status conscientiae of the members of the international
community as a whole”, “ensuing from the idea of an objective justice,
and guiding the interpretation and application of legal norms and
rules”.272 He criticised the ICJ for overlooking the general principles of
law and argued that both principles of domestic and of international law
fall under the scope of Article 38(1)(c) of the SICJ due to their universal
axiological dimension.273 Judge Cançado Trindade focused on ascertaining
the existence of the environmental law principles of prevention and the
precautionary principle, by reference to the Declaration of the United
Nations Conference on the Human Environment and the Rio Declaration
on Environment and Development, the General Assembly resolution
containing the World Charter for Nature, a number of universal and
266.
267.
268.
269.
270.
271.
272.
273.

South West Africa, supra note 217.
Ibid at 298.
Ibid.
Ibid at 299.
Ibid at 300.
[2010] ICJ Rep 14 [Pulp Mills].
Ibid at 214.
Ibid at 137, 155.

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regional environmental treaties, as well as the case law of the ICJ itself.274
In conclusion, despite the difference in natural as opposed to positive
law perspective on general principles, the methodology suggested by
Judges Tanaka and Cançado Trindade is surprisingly similar to that
adopted by the ICJ itself ascertaining the general recognition of the
international community of states as a whole as evidenced in international
treaties and declarations.

V.

Methodological Conclusions

The case law of the PCIJ and the ICJ indicates a nuanced approach
towards the interpretation and identification of the ‘general principles
of law recognized by civilized nations’, pointing to three categories of
such principles, namely: general principles of international law; general
principles of domestic law; and general principles of international
procedural law. Under the rubric of general principles of international
law, the ICJ has applied ‘general’ and ‘fundamental’ or ‘cardinal’
principles of international law deriving their recognition from universal
treaties; custom; widely supported General Assembly resolutions; other
non-binding statements of international organisations; Security Council
resolutions; the case law of the ICJ itself; and of arbitral tribunals.
Accordingly, in the identification of general principles, the subjective
attitudes of the majority of states would compensate for a less-thangeneral state practice. The methodology of the ICJ in ascertaining the
existence of general principles of international law is mostly deductive,
which leaves it open to criticism for being too liberal in its approach.
The ICJ resorted to general principles of domestic law on rare
occasions, largely limited to the interpretation of questions regulated by
domestic law. It has done so by identifying principles common to the
‘generality’ of legal systems, mostly in the areas of contract and company
law. While such general principles have limited significance in the case
law of the ICJ due to the types of disputes it has jurisdiction over,
their use has grown considerably in the context of mixed arbitrations
involving a state and a non-state entity, and in particular in investment
274.

Ibid at 157-70.

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treaty arbitration. This is underlined by the fact that quite a few bilateral
investment treaties and investment contracts designate ‘general principles
of law’ as applicable alongside national law and that tribunals have
interpreted this formula to apply general principles of contract and
other areas of private law instead of the designated national law. The
methodology of the ICJ in ascertaining general principles of domestic
law is primarily an inductive one, though heavily reliant on the evidence
presented by the parties.
The ICJ also identified a number of principles of international
procedural law, using a combination of inductive and deductive
methodology by relying on international treaties, domestic laws, and
international case law.
The different methodologies adopted by the ICJ with respect to the
different categories of general principles can be justified theoretically but
are also open to criticism for being inconsistent. It can be hoped that the
ICJ will use future cases to set out more explicitly its interpretation of
Article 38(1)(c) of the SICJ and a clear methodology for its application
in practice.