INTRODUCTION

International law is not rules. It is a normative system. A normative system, however, consists of
norms which interlink and take account of the humanitarian, moral, political and social purposes
of law. "General principles of law recognized by civilized nations" or more appropriate: the
community of nations or by almost all the states are a manifestation of international law.
General principle are said to be those general preposition of law from which concrete rules are
derived1. They connote the principles which are unwritten and the court derive them from the
specific rules or from the legal system as a whole.

General principles of law are recognized as one of the authoritative sources of international law,
having been codified as a source of international law in the Statute of the International Court of
Justice. It is accepted that the sources of international law are listed in the Article 38(1) of the
Statute of the International Court of Justice, which provides that the Court shall apply:

a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b) International custom, as evidence of a general practice accepted as law;

c) The general principles of law recognized by civilized nations;

d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.

Article 38(1)(c) of the International Court of Justice Statute lists general principles of law
recognized by civilized nations (i.e. general principles of fairness and justice which are applied
universally in legal systems around the world) as one of the source of international law. This is
the most difficult source to research because it is documented in such a wide variety of materials
(e.g., state papers, diplomatic correspondence, executive decisions, judicial decisions, etc.)2
General principles of law are usually used when no treaty provision or clear rule of customary

1
Oxford dictionary of law ( second edn.,1989) entry 5a.
2
CustomaryInternationalLaw: Research Guides & Background Information (http://law.duke.edu/ilrt/cust_law_1.htm)
last accessed on 11th September 2013
law exists. Thus a principle will not be recognized as general principle of law within the meaning
of Ar-38(1) (c) of the statute unless it is adopted consistently as a solution to specific problems
by various systems of municipal laws.3

This source helps the international law to adapt itself with the changing time & circumstances.
These principles also provide a strong argument for certain solutions, they may even raise
presumptions, but they rarely dictate results in themselves.

The normative force behind general principles appears to be limited of importance for three
different reasons:

Firstly, international courts and tribunals have remained reluctant in their use and reference to
general principles,

Secondly, general principles as such have limited use as independent formulations of enforceable
obligations and have rarely been referred to as a basis for a legal claim, and,

Thirdly, legal scholars have contributed with their criticism to mark general principles a rather
ambiguous source of law.

There are significant differences in the application of general principles by the International
court and Municipal courts. Although general principles are referred but till now there is no
majority judgments based upon a general principle of law. Moreover in international law general
principles perform a gap filling function i.e. the competent court could not be confined to make
judgments in accordance with Customs & conventions only but it should be designated to give
free rein to law-making activity of courts by applying the general principles of law.

Examples of these general principles of law are good faith, res judicata, Balance of Probability,
Double Jeopardy, the impartiality of judges etc. International tribunals rely on these principles
when they cannot find authority in other sources of international law covering the same point,
neither any parliamentary statute nor any judicial precedents. In such situations Judges Deduce a
rule that will be relevant by analogy from the already existing rules arising out of Justice &
Equity of public policy. One crucial general principle of international law is that of pacta sunt
servanda, or the idea that international agreements are binding.
3
Woodspring District Council v Bakers of Nailsea Ltd.[1997] ECR I- 1847, para-17
LEGITIMACY & VALIDITY OF GENERAL PRINCIPLES:

A general principle of law recognized by Domestic law of large number of states doesnt become
principle of international law; it becomes international law when it is recognized by the
International Court. When classifying general principles as a supplement to treaty and custom,
they are seen as a category of norms which usually comes after those depending more
immediately on the consent of states.4 This conception implies that courts and tribunals can have
recourse to general principles even though States have not given their express consent.
According to the dissenting opinion of Judge Tanaka in the South West African cases observed
that general principles extend the concept of the sources of international law beyond the limit of
legal positivism, according to which the States are bound only by their own will'.5
In the absence of general principles, international law would be nothing but the law of consent
and auto-limitation of States. According to Justice Chagla, "principles of international law can be
taken from the Municipal Law if they have received universal acceptance and are not
inconsistent with any rule of International Law".
There are two major ways to legitimize the use of general principles:
Firstly, they can be induced from domestic legal systems which mean general principles are
those which can be derived from a comparison of municipal legal systems.
Secondly, they can be deduced from international legal logic directly.6 This suggests that
general principles are primarily or as even exclusively principles of international legal logic.
For example, in the Right of Passage over Indian Territory case, Portugal argued that its right to
passage from the coast to certain Portuguese enclaves on Indian territory was supported by the
general principle of rights of way of necessity. Here the International courts, relied on the use
of general principle, more often than not took resort without reflecting extensively on domestic
law analogies.
Thus been said that general principles are norms recognized by the international community,
whether the norm is derived from municipal law or not. They are norms of general validity

4
I. Brownlie, Principles of International Law, 6th ed. (Oxford: Oxford University Press, 2003),
15
5
Dissenting opinion, Judge Tanaka, South West African cases (Second Phase) ICJ Reports 1966,
298.
6
AF CHRISTINA VOIGT, (The Role of General Principles in International Law and their Relationship to Treaty
Law) 31 2008 NR. 2/121 pg- 7
which is manifested not in a single statutory provision, but usually by a group of mutually
interdependent legal rules or their system.

NATURE OF GENERAL PRINCIPLES OF LAW

Firstly, the nature of general principles is inherently linked to their generality and abstractness.
Their main function is of filling the gaps left open by treaty and custom and the function as a
guide to law makers.
Secondly, they give significant discretion to judges and law makers. General principles are a
source of arguments in situations where other sources fail. Thus, when they are put into practice
and are applied by the judge, principles like the principle of good faith, the rule of law, or human
dignity, provide a means of finding an answer to a legal question where no law or colliding rules
exist.
And lastly, they provide a welcome and necessary means by which courts and tribunals can
construe the law in a dynamic fashion that is responsive to todays problems.
Some writers regard it as an affirmation of Natural Law concepts, which are deemed to underlie
the system of international law and constitute the method for testing the validity of the positive
(i.e. man-made) rules.7

CASES:
In Barcelona Traction Case8

Issue raised was that whether Belgium was having Locus Standi to file the case in ICJ or not.

The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders
in Canadian company with respect to measures taken against that company in Spain. Court had
applied the principle of Estoppel since the locus standi of Belgium was not proved. Court said
that for the reasons of Equity a state in certain case might take up the protection of its national
share-holders in the company which had been the victim of violation of International law but it
would create leniency i.e an atmosphere of insecurity in the international economic relation.

7
The Common Law of Mankind, London, 1958, p. 169
8
I.C.J. Rep. (1964).p.6
In the Chorzow Factory case in 19289, Court had applied the principle of res judicata.
International Justice declared that it is a general conception of law that every violation of an
engagement involves an obligation to make reparation.

In Bosnia and Herzegovina v. Serbia and Montenegro10 the question of res judicata was
discussed. The Court emphasized that the principle signifies that the decisions of the Court are
not only binding on the parties, but are final, in the sense that they cannot be reopened by the
parties as regards the issues that have been determined.

In R v Keyn11 court held that International law is based upon Justice, Equity & conscience
which is accepted by long practice of civilized states.

In U.K v Albania (1949) court had applied the principle of res judicata.

CONCLUSION

General principles provide an important dynamic element of international law by preventing

treaty law from being outdated and irrelevant. Treaties are not set in stone and general
principles are an important supplement and corrective to treaty law. International law to fully
address the problem of fragmentation, the technique of applying general principles needs to be
revived. They constitute both the backbone of the body of law governing international dealings
and the potent cement that binds together the various and often disparate cogs and wheels of the
normative framework of the international community. And last, but not least, like a living city,
international law is a continuing process; principles can evolve into conventional or customary
rules, but principles will always remain unfinished. As such, they allow international law to
grow and to respond to modern challenges.

9
PCIJ, Series A, No. 17,
10
ICJ Reports, 2007, para. 113.
11
(1876) Ex. D. 63
International law is the name of a body of rules which regulate the conduct of the States in their
intercourse with one another.[1] Sources of international law include treaties, international customs,
general principles of law as recognized by civilized nations, the decisions of national and lower
courts, and scholarly writings. They are the materials and processes out of which the rules and
principles regulating theinternational community are developed. They have been influenced by a
range of political and legal theories.

General principles of law[edit]

The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is
unclear and controversial but may include such legal principles that are common to a large number
of systems ofmunicipal law. Given the limits of treaties or custom as sources of international law,
Article 38(1) may be looked upon as a directive to the Court to fill any gap in the law and prevent
a non liquet by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from municipal
law. In the 19th century, legal positivists rejected the idea that international law could come from any
source that did not involve state will or consent, but were prepared to allow for the application of
general principles of law, provided that they had in some way been accepted by states as part of the
legal order. Thus Article 38(1)(c), for example, speaks of general principles "recognised" by states.
An area that demonstrates the adoption of municipal approaches is the law applied to the
relationship between international officials and their employing organizations,[25] although today the
principles are regarded as established international law.
The significance of general principles has undoubtedly been lessened by the increased intensity of
treaty and institutional relations between states. Nevertheless, the concepts
of estoppel and equity have been employed in the adjudication of international disputes. For
example, a state that has, by its conduct, encouraged another state to believe in the existence of a
certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a
contrary situation in its dealings.[26] The principle of good faith was said by the ICJ to be "[o]ne of the
basic principles governing the creation and performance of legal obligations".[27] Similarly, there have
been frequent references to equity.[28] It is generally agreed that equity cannot be employed to
subvert legal rules (that is, operate contra legem).[29] This "equity as law" perception is reinforced by
references to equitable principles in the text of the United Nations Convention on the Law of the
Sea 1982, though this may be little more than an admission as to the existence, and legitimation, of
the discretion of the adjudicator.
However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify that, if
rules were to be adapted from municipal law, they should be at a sufficient level of generality to
encompass similar rules existing in many municipal systems. Principles of municipal law should be
regarded as sources of inspiration rather than as sources of rules of direct application.[30]
Unit 1 Background, development and sources

3.3 General principles of law recognised by

civilised nations

As is true of other aspect of international law, the question of general

principles of law is a subject of disagreement. Even the drafting materials,
the travaux prparatoires of the drafting committee reveals different views.
The American member of the drafting committee, Elihu Root appeared to have
in mind principles recognised in national legal systems. Article 38(1)(c) of the
Statute of the ICJ (UN 1945) refers to the general principles of law recognised
by civilised nations, not general principles of international law. However, there
is reserve about inferring international law from municipal law especially if
'Civilised Nations' was intended to mean western nations. A reason for the
inclusion of this source of international law is to assist in making decisions
where there are gaps in the law. This may allow an international court to avoid
declaring the matter is legally unclear, non liquet, and thus decline to resolve
the dispute in question. Some basic principles of law commonly cited include:
The principle of good faith, which is being faithful to a sense of obligation; the
bar against a party raising a claim again after it has been settled by judicial
decision (res judicata); and the bar that precludes taking a position which is
contrary to a position already established either by previous admission or
action and legally determined as being true (estoppel).