[Music] let us turn now to general principles as a source of international law you may remember that among the sources of international law listed by article 38 of the icj statute paragraph 1 C refers to I quote the general principles of law recognized by civil ized Nations this sentence is taken from the statute of the permanent Court of international Justice and as you know that statute was drafted in 1920 and this explains the reference to civilized Nations which sounds very eurocentric and pretty outdated by now since all nations are today presumed to be equally civilized
back in 1920 about the centur ago international law was not as much developed as it is today and therefore the problem that the drafters of the PC statute were facing was the issue of non-liquid that is the situation where the court would be asked to decide a case but would not find any treaty nor any rule of C international law to be applied to the fact of the dispute and a court of law cannot simply say I have jurisdiction but I cannot judge this case because there is no law to be applied so the concept
of general principles of law was introduced to fill the gaps as it were the gaps that could be left in case there would be no relevant treaty or custom instead of leaving the court the possibility of inventing new rules the drafters directed the court to look at general principles of law recognized by civiliz civilized Nations what does that mean well it is very clear that in 1920 the drafters of the PCI statute meant to refer to rules of domestic law that are common to the main legal systems of the world civil law common law Chinese
law Etc in other words the legal principles that are common to domestic legal systems are because they are common considered to be rules of international law and as you can see consent serves again as the foundation of international law true there is no formal consent as with treaties and neither is there implicit consent nor acquiescence as with customary rules but consent exists nevertheless because of the convergence of domestic laws if States want the same rule for themselves article 38 paragraph 1 C somehow presumes they do not object that such rule common to their respective domestic
legal systems be considered by the court as a rule of international law in the form of a general principle of law at the same time general principles transcend the issue of consent understood in a very narrow and positivistic way indeed if similar rulle rules are to be found in domestic legal systems all over the world is it not because they somehow derive from and express some essential requirements of law which do not depend on voluntarism in that sense general principles of law would be close to natural law reflecting legal Necessities stemming from the common conscience
of mankind wherever in other words through general principles of law the drafters of the pcrj statute managed to reconcile two opposite schools of Juris prudence and legal Theory positivism and naturalism this being said if one wants to go beyond some very Elementary Common rules making general principles the problem with such construction is that it would require the court to embark on some lengthy comparative law exercises this could prove very difficult due to the increase uh in the number of states and of the domestic legal systems that would have to be taken into account and compared
moreover it would consider considerably slow down the procedure if conducted in a very rigor rigorous uh uh manner well hopefully and because general principles were conceived as having a subsidiary character and apply in the absence of treaty or custom the extraordinary development of international law through treaties and through customary rules has limited the need to rely on general principles within the meaning of article 38 to find rules filling the gaps as it were in the system of international law however if you read carefully judgments of international courts and tribunals notably those of the international court
of justice you will notice that the word general principles are very often used but most of the time by those words the courts actually refer to C international law and instead of referring to general principles of law as in article 38 the judgments very often refer to general principles of international law by this it is the importance or the wellestablished character of the kmir rule at stake that is emphasized different words are are used but they point to rules having the nature of custom international law by the same token Article 2 of the UN Charter
for instance lists principles According to which the UN must act and those principles include CI rules also the United Nations generally ass General Assembly adopted in 1970 a declaration on principles of international law concerning friendly relations and cooperations among states which the international court of justice has considered to reflect customary international law the court has notably said so first in the Nicaragua versus the United States case and then in the advisory opinion on the unilateral Declaration of Independence in respect of Kosovo so there is nothing problematic in using the words principles or general principles when
actually speaking about custom sometimes the words general principles of international law are used to refer to an axiomatic principle of international law a principle without which international law would not be what it is for instance the equal sovereignty of states or pakasa Etc But there again such basic principles have also a customary character in The Following readings you will see uh how the words general principles are used in various icj cases and this will serve to illustrate this video [Music]
