6 General Principals of law

Prof. Nitin Gomber

General Principles of Law

As noted earlier, “general principles of law recognised by civilised nations” primarily mean general principles of law recognized by legal systems of different countries. Now, the question arises why recognize them as a formal source of international law? Well, the answer to this lies in the fact that international law and to be specific, international human rights law is susceptible to gaps: the international legal regime lacks a supreme legislative authority, suffers from imperfect law making procedures, and often relies on broadly defined laws that are more akin to standards rather than rules. Accordingly, no system of law can consist solely of specific rules covering every situation that could possibly arise. Unforeseen cases are bound to be encountered, and in that case the judge would have to exercise discretion and adjudicate a case on the basis of general principles of law recognized by a majority of nations around the world.

Historical background

Article 38 of the Statute of the International Court of Justice has been borrowed from the Statute of the old Permanent Court of International Justice (PCIJ)2. Now, within the Advisory Committee of Jurists entrusted with the drafting of the Statute of the PCIJ, there was a lot of debate pertaining to the material content of general principles of law as a formal source of international law. Originally, one of the proposals was to incorporate the wording, “the rules of international law as recognised by the legal conscience of civilised nations.” After a lot of debate, this was however changed to “general principles of law recognised by civilised nations” as it stands now.

Now, prior to the adoption of how the provision stands today, President Edward Descamps (one of the members of the Advisory Committee of Jurists) eloquently defended his view of the existence of an ‘objective justice’ in the following way, “Concerning Mr. Root’s statement that the principles of justice varied from country to country, that might be partly true as to certain rules of secondary importance. But it is no longer true when it concerns 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 civilised nations. ” The President added that far from giving too much liberty to the judges’ decision, it would impose on the judges a duty which would prevent them from relying too much on their own substantive opinion; it would be incumbent on them to consider whether the dictates of their conscience were in agreement with the conception of justice of civilised nations. Few other members of the Committee also supported the express reference to general principles so as to satisfy a need of the judge in order to base his sentences on in the absence of a rule not being governed by a treaty or a custom.

From the foregoing observations, it wouldn’t be wrong to conclude that the members of the Committee were concerned that in the future the Court might be faced with a situation where neither a treaty provision nor a customary rule of international law was applicable. Accordingly, it was thought undesirable, and possible inappropriate in principle, that the Court should be obliged to declare what is known as a non liquet. This is a judicial finding that a particular claim can neither be upheld nor rejected, for lack of any existing applicable rule of law. Therefore, it could reasonably be presumed that the concept of general principles was thought of to fill the gaps in the existing law.

Fast forward to 1945, at the time of the adoption of the Statute of the ICJ, it was agreed by the participating delegations that the corresponding Article 38 of the new Statute would not undergo a general revision and was incorporated as such. However, the Article 38 of the Statute of the International Court of Justice opened with the words, “The Court, whose function is to decide in accordance with international law, such disputes as are submitted to it, shall apply…”

Importance of General Principles to Human Rights

It is clear from the previous section that general principles were added as a formal source of law to fill the gaps. However, in the field of human rights, these general principles have played a significant role in the development of jurisprudence. Here are the reasons of why general principles have created a space for themselves in the realm of human rights jurisprudence: Firstly, we are far from having achieved a universal ratification of all human rights treaties. In fact, given the number of regional treaties and agreements cropping up at all times, the regime for international human rights has become more and more fragmented and to some extent conflicting. This necessitates the existence of some universal general principles to which all States abide by. Secondly, as has been noted previously, there are times when a State at the time of expressing its consent to be bound by a treaty, also expresses its reservation to certain provisions laid down therein. This possibly could only be circumvented by recognising universal principles to which all nations must adhere to. Thirdly, it is increasingly recognised that States are not the only subjects of international human rights law. As subjects of international law, international organizations are bound by general international law, and some authors believe this could be extended to transnational corporations. Therefore, in order to impose human rights obligations on such private non-State actors, these obligations must have their source elsewhere than in treaties, which as a rule only States may ratify.

How to discover general principles of law

The International Court of Justice has also resorted to general principles of law in judgments and advisory opinions. However, on those occasions, it did not always clear that it was applying Article 38, paragraph 1 (c) of its Statute. The Court, it must be admitted, has shown restraint in its recourse to ‘general principles’ as authority for its pronouncements. Even when relying on general principles of law, the Court has not infrequently either also referred to customary international law or left it ambiguous as to whether it was speaking of a general principle or some other rule.

For that reason, and given that both customary rules and general principles of law are unwritten legal norms, it is sometimes difficult to ascertain whether the ICJ applied the former or the latter. It is possible to discover general principles of law in the judgments by taking into account some signs of their application. For example, use of particular terms, such as ‘established principle’ or ‘general concept of law’ or ‘fundamental principles’ or ‘well-recognized principles’ or ‘essential principle’ or ‘principles generally accepted’ or ‘well-known rule’ among others.

The question that now arises is that what basic conditions must be satisfied before a principle qualifies to be considered ‘a general principle of law recognized by civilized nations.’ Given the number of independent States over the past few decades has balooned to almost 200, does this mean that today a general principle has to pass the test of a hundred legal systems before it could be construed as a ‘general principle of law recognized by civilised nations’? Possibly not. It was never intended under paragraph (c) of Article 38 that proof should be furnished of the manifestation of a principle in every known legal system considered to be civilised; and certainly it has never been the practice of the ICJ or other tribunals to insist upon proof of widespread manifestations of a principle or to indulge in elaborate comparative studies of legal systems of the world.

In this regard, it is to be noted that the ICJ in pronouncing its judgments does refer to general principles of law to settle the cases at issue, but does so without elaborating further on such principles. In fact, there is hardly any instance where the ICJ has delved deep into an analysis of laws to extract a general principle of law. However, as matter of generality, it appears that given Article 38, paragraph 1(c) of the ICJ Statute does not refer to ‘general principles of international law’ but to ‘general principles of law’, general principles of law would be legal principles common to national legal systems or prevalent in international law. Accordingly, the courts may either have recourse to decisions of international courts/tribunals or a comparative research to determine if a given principle is a general principle of law. This latter study could possibly involve the study of legal rules from national legal systems, to begin with, and thereafter making sure that such derived principle is generally recognised by nations. If a good majority of the nations recognise a particular principle, it could be argued that it is a general principle of law recognised by civilised nations. This assessment, however, is subjective and totally at the discretion of the court, the matter is before.

Recourse to General Principles by the ICJ

The International Court of Justice often takes recourse to general principles in the realm of human rights. However, matters dealing with human rights violations have usually formed a small part of its docket. Nevertheless, here are a few observations made by the International Court of Justice in invoking the general principles clause in its Statute:

In Corfu Channel Case (United Kingdom of Great Britain v. People’s Republic of Albania), the Court observed, “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations… are based on certain general and well-recognized principles, namely, elementary considerations of humanity, even more exacting in peace than in war.” (I.C.J. Reports 1949, four at 22)

This case arose out of an incident that occurred in the Albanian territorial waters of the Corfu Channel where two British warships were struck by mines and incurred heavy damage and loss to human life.

In the Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court held, “The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations. The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation… The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope…” (I.C.J. Reports 1951, 19)

This was a matter which was referred to the ICJ for its advisory opinion by the General Assembly of the United Nations. The basic idea of this advisory opinion was to pin point the effect of a reservation put in by a State at the time of expressing consent to be bound by the Convention on the Prevention and Punishment of the Crime of Genocide.

In the Case concerning the Barcelona Traction, Light and Power Company, Limited, (Belgium v. Spain) the Court observed, “By their very nature [the obligations of a State towards the international community as a whole] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts or aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi-universal character”. (Second Phase, I.C.J. Reports 1970, three at p. 32)

In the United States Diplomatic and Consular Staff in Tehran (the United States v. Iran), the International Court of Justice observed, “Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.” (I.C.J. Reports 1980, at 42)

This case was brought to the ICJ by the United States of America against Iran in response to the Iran hostage crisis, where United States diplomatic offices and personnel were seized by militant revolutionaries.

In the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court held, “The Court considers that there is an obligation on the United States Government, in terms of Article 1 of the Geneva Conventions to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’, since such an obligation does not derive only from the Conventions themselves but from the general principles of humanitarian law to which the Conventions merely give specific expression.” (I.C.J. Reports 1986, 14, at 113-14)

This was a case brought to the ICJ by Nicaragua alleging that the United States was encouraging, supporting and aiding direct military and paramilitary actions in and against Nicaragua.

In the Case concerning East Timor (Portugal v. Australia), it was held by the Court “In the Court’s view… The right of peoples to self-determination, as it evolved from the Charter and United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples… Is one of the essential principles of contemporary international law.” (I.C.J. Reports 1995, 90, at 102 (para. 29))

In this case, Portugal, the administering power for the territory of East Timor, instituted proceedings against Australia alleging that by its conduct failed to observe the right of the people of East Timor to self-determination and other related rights.

In the Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons, the Court held, “It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ as the Court put in its Judgement of 9 April 1949 in the Corfu Channel Case that the Hague and Geneve Conventions have enjoyed a broad accession. Further, these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” (I.C.J. Reports 1996, 226, at 257 (para. 79))

This case came about when a large group of non-nuclear countries took the initiative of asking the ICJ for an advisory opinion on the legality of the threat or use of nuclear weapons.

Reference

1. HERSCH LAUTERPACHT, 1 INTERNATIONAL LAW 69-70 (1970).
2. The Oxford Handbook of International Human Rights Law, edited by Dinah Shelton, OUP.