General Principles of International Law
Effects of Domestic Law on International Law
In Brief
International law both influences and has independent status in domestic legal systems, and (conversely) domestic law affects international law. In fact, international law is substantially influenced by domestic law. This influence can be seen by the reference to general principles of national law “recognized by civilized nations” as a source of international legal obligation.
In Theory
International law assumes that its obligations will be implemented through domestic law and legal institutions. But the international legal system is indifferent as to how international legal obligations are carried out by a particular state, provided they are effectively implemented.
Two distinct traditions have developed with respect to the incorporation of international law into domestic law, and scholars continue to debate the merits of each.
The monist approach, in essence, is based on the idea that international law and domestic law are parts of the same legal system, but that international law is higher in prescriptive value than national law.
A dualist approach, by contrast, assumes that international law and domestic law are separate and distinct legal systems that operate on different levels, and that international law can only be enforced in national law if it is incorporated or transformed.
As used in Article 38 of the International Court of Justice Statute“general principles of law” refers to principles of domestic law (sometimes called “municipal law”), as recognized in the legal systems of “civilized nations.”
The process by which a principle is “elevated” from various domestic legal systems to the realm of international law is subtle and complex. The very language of Article 38 is suggestive that a principle would have to be “recognized” not just in one legal system, but rather, in most of the world’s legal cultures.
The reference in Article 38 to “civilized nations” is generally construed as referring to jurisdictions embracing the common law tradition (the United Kingdom and its former colonies, as well as the United States), the civil law derived from ancient Roman law (prevalent in all of continental Europe, Latin America, and most of Africa and Asia), significant religious legal cultures (including Islamic law), and ideological legal systems (including socialist law as practiced in China and elsewhere).
There is a bit of a paradox in the incorporation of general principles as international legal rules. The more abstract the principle, the greater consensus of legal systems, but also the less useful the rule.
Some general principles of this sort include a rule of good faith in international obligations (known as pacta sunt servanda) and the doctrines of necessity and self-defense.
These are useful doctrines, but they are short on specifics. On the other hand, the less abstract (and more concrete) the principle, the more useful it is, but also the more difficult it is to find a consensus among domestic legal systems.
In Practice
A good example of this paradox at work is the rather prosaic principle that there should be a period of repose (i.e. a statute of limitations) for international claims. Almost all domestic legal systems have a similar principle.
In 1903, an international arbitral tribunal ruled that there was sufficient consensus to make it a rule of international claims practice (and thus to bar a nearly 30-year-old claim). But the tribunal could not say definitively whether the international statute of limitations was 10 years, 30 years, or 50 years.1 The abstract principle of prescription was thus recognized, but no specific rule or time limit.
Learn More
International Law: A Handbook for Judges, David J. Bederman with Christopher J. Borgen and David A. Martin, (2003)
International Law and the Role of Domestic Legal Systems, B. Conforti (1993)
The Relationship between International and Domestic Law, C. Economides (1993)
International Law and Municipal
Law (G.I Tunkin & R.Wolfrum eds., 1988).
This text has been from excerpted and adapted from International Law: A Handbook for Judges, ©2003 American Society of International Law.
1 Gentini (Italy) Claim (Venezuelan Mixed Cl. Comm’n 1903) in Jackson Ralston, Venezuelan Arbitrations of 1903, at 720 (1904)
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