In This Article General Principles of Law

  • Introduction
  • History
  • Definitions
  • Emergence
  • Criticisms

International Law General Principles of Law
by
Marcelo Kohen, Bérénice Schramm
  • LAST MODIFIED: 26 August 2013
  • DOI: 10.1093/obo/9780199796953-0063

Introduction

General principles of law are basic rules whose content is very general and abstract, sometimes reducible to a maxim or a simple concept. Unlike other types of rules such as enacted law or agreements, general principles of law have not been “posited” according to the formal sources of law. Yet, general principles of law are considered to be part of positive law, even if they are only used as subsidiary tools. They constitute necessary rules for the very functioning of the system and, as such, are inducted from the legal reasoning of those entitled to take legal decisions in the process of applying the law, notably the judiciary. They also constitute integrative tools of the system as they fill actual or potential legal gaps. In international law, general principles of law have been the object of much doctrinal debate based on the different meanings attributed to the notion and the theoretical problems that they pose. Much confusion derives from the use of the expression “fundamental principles of international law” that is at the top of the legal system and originates in treaty or custom (e.g., the principle of sovereign equality of states or the principle of the prohibition of the threat or the use of force) and that will not be dealt with here. Given the wording established in Article 38, paragraph 1(c) of the Statute of the International Court of Justice (“general principles of law as recognized by civilized nations”), the question of the origin of general principles of law as applied at the international level has also been a matter of controversy. The common perception is that these principles find their origin in the domestic legal systems. Once there is the conviction that some of these general tools are commonly shared principles that can be found in the domestic systems, they can also be applied in international law. They are logic inferences that can be found in any legal system: the principle of reparation for caused damage, the principles of interpretation of rules, or those used for the resolution of conflicts of rules—many of them known through Latin maxims—are good examples. The judiciary has also developed a number of general principles of law, such as audiatur et altera pars, actori incumbit onus probandi, or the fact that the judge of merits is also judge of the incidental jurisdiction. However, they are also logic inferences that are related to particular areas of international law, giving room for the emergence of general principles specifically applicable in the realm of international law, for example the principle of humanity in international humanitarian law. Given the definitional problems that the notion poses, the first references will be to works and jurisprudence on the topic so as to set the field under scrutiny. Likewise, the various histories that have been recounted about the notion’s emergence will be dealt with before engaging with definitions and other more substantial matters.

Reference Works

In spite of what many authors of standard manuals of international law have stated in introduction to their own theories, there is a surprising dearth of literature, given the importance and difficulty of the topic—and compared to the literature dedicated to treaty and custom law. Also, much of the literature usually addresses the general principles in an encompassing manner, dealing with all the aspects of the topic, be they its history, its definition, its illustrations, and so forth. Given these two specific features, much of this literature can therefore be considered referential. Another interesting feature lies in the fact that this general literature is quite time-bound, with obvious waves of works having been published at certain periods of time, such as during the years following the entry into force of the Permanent Court of International Justice (PCIJ) and International Court of Justice (ICJ) Statutes, or during the 1960s. More recent works have also been written on the topic, yet without diminishing the intellectual aura those earlier works still possess. In view of the number of works, they are classified into three categories: the first category addresses the historical and longer pieces on the topic; the second category references encyclopedic entries; and the third category, shorter and more recent (and/or less classical), opuses. On a last linguistic note, the majority of the literature, especially the renowned historical part of it, is either in English or in French.

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