In any system of law, a situation may very well arise where the court in considering a case before it realizes that there is no law covering exactly that point, neither parliamentary statute nor judicial precedent. In such instances the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ was inserted into Article 38(1)(c) of the Statute of the ICJ as a source of law.
MEANING OF TERM
The term ‘general principles of law recognized by civilized nations’ has very wide and vague meaning. Some writers regard it as an affirmation of Natural Law concepts, which are deemed to underline the system of International law and constitute the method for testing the validity of the positive (man-made) rules. Other writers, particularly positivists , treat it as a sub-heading under treaty and customary law and incapable of adding anything new to international law unless it reflects the consent of States.
Between these two approaches, most writers are prepared to accept that the general principles do constitute a separate source of law but of fairly limited scope, and this is reflected in the decisions of the PCIJ and the ICJ.
Nothing is clear, but what could be said is that general principles are those which are common to the major legal systems of the world.
STATUS OF GENERAL PRINCIPLES OF LAW
The question arises whether general principles of law are a distinct source of international law. Soviet and other writers maintain that Article 38(1)(c) does not envisage a separate source of international law, nor any separate means of creation of international norms. The argument that ‘general principles of Law’ are not a distinct source of international law is based on the following grounds:
- If a given principle is affirmed constantly in international judicial decisions and accepted in the practice of States, it acquires the status of custom. It matters little if the principle has been originally borrowed form municipal law.
- ‘General principle of law’ means general principle of international law and not the principles common to the municipal legal systems. There are no such general principle except those established by international agreement as part of international law.
- Positive claim that customs and treaties were the only sources of international law, as according to them international law is a body of rules on which the states have given their consent.
Oppenheim said: ‘General Principles of law’ enables rule of law which might otherwise be left by the operation of custom and treaty, and provides a background of legal principles in the light of which custom and treaties have to be applied and has much it may operate to modify their application.