International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
Jul/Aug 2007, Volume 2, Issue 2

General Principles of International Law

What are General Principles of International Law?

When there is no provision in an international treaty or statute nor any recognized customary principle of international law available for application in an international dispute, the general principles of law can be used to “fill the gap.”

A most common way of resolving disputes under the rule of law is by reference to, and application of, the language of applicable multilateral or bilateral treaties or statutes, or some other writing which provides evidence of the relationship and past positions of the parties to a dispute. Another method is by reference to custom, the practice of nations in a particular area (customary international law) and principles of law derived from such. But what happens when there is no such guiding authority for the benefit of those involved in resolving the dispute? Such gaps are inevitable in any legal system, including the international one, because treaties (contracts), statutes, and rules derived from custom cannot be designed to cover all situations which give rise to disputes. International law provides an answer to that question for the resolution of international disputes: general principles of law may used to fill the void or “gap.” These may be referred to, as one authority did, as “nonconsensual” sources of international law.

In the municipal law systems of countries with a common law tradition, judges very often look to the decisions from outside sources to fill in the “gaps” of the law to be applied in the resolution of a particular case. As an example, state courts in the United States very often cite the decisions of other state courts in the course of an opinion in a case, where a needed legal rule of the deciding state is absent or unclear. As a corollary, some justices of the Supreme Court of the United States have recently adopted the practice of using the decisions of courts of other countries and international courts for their persuasive value in clarifying unclear rules to be applied in a case.

In civil law countries, as Professor Mark Janis of the University of Connecticut Law School notes in his An Introduction to International Law:

[L]awyers and judges in the civil law tradition are familiar with the problem of lacunae, gaps in the law, a concept based on the premise that only formal legislative institutions are empowered to make legal rules.

Thus, judges in civil law countries need statutory authority to “fill in the gaps” of the legislatively created legal rules. Must the civil law judge merely look at the statutes or decisions of courts in foreign jurisdictions for a “fill in the gaps” principle, or must the judge find explicit statutory authority for such practice, i.e. to find “explicit authorization permitting courts to fill the legislative vacuum?”

Fortunately for the international judge or the domestic judge faced with applying international law in a particular cause, the answer can be found in Article 38(1) of the Statute of the International Court of Justice. This provision specifically authorizes in listing the sources of law to be applied by the Court, treaties, customs and “the general principles of law recognized by civilized nations.” Professor Janis comments on this provision:

The basic notion is that a general principle of international law is some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law.

An example cited among others by Professor Janis is the International Court of Justice decision in 1949 in the Corfu Channel case, which addressed the question of Albanian civil liability for the mining of the Corfu Channel and subsequent damage to two British naval vessels that resulted from striking mines. In discussing whether the United Kingdom could establish the knowledge and responsibility of Albania for the laying of the mines, the Court’s opinion stated:

[T[he fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion. (Emphasis added)

The existence of a body of legal principles and rules that are common to all, or almost all legal systems, is supported by some observations made by a British barrister, C. Wilfred Jenks, in his book The Common Law of Mankind, published under the auspices of the London Institute of World Affairs in 1958. In a section of the book titled “Extent of the Influence of the Common and the Civil Law,” Jenks observes that virtually all of the legal systems of the world, including those in Latin America, Islamic countries, African countries, countries within the former Soviet block, India, China, and Japan have been profoundly influenced in the course of their development by either the civil law or the common law. The result is that many principles of law are common to these legal systems. One only has to examine, for example, the law of contracts or torts or the criminal law relating to murder in these legal systems to understand the truth of this assertion. Thus the common law and the civil law, which by themselves share common principles of law, provide the basic framework that many general principles of law can be derived and used to “fill the gap” when there is no general principle of international law available for application in the resolution of a particular case.

James G. Apple, Co-Editor of the International Judicial Monitor and President, International Judicial Academy

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Editors: James G. Apple, Veronica Onorevole and Andrew Solomon.
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