The source of law recognized in article 38(1)(c) of the Statute of the International Court of Justice, the so-called “general principles of law recognized by civilized nations”, occupies a place at the margins of international law. Some have argued that these general principles do not constitute an independent source of binding legal norms. Others recognize the source’s formal independence, but simply claim that it is of little practical significance; Professor Mark Janis has bluntly claimed of these general principles – perhaps with some regret – that “you can be an effective, card-carrying international lawyer and not believe in them!”
And yet “general principles” are striking, for they are not grounded in express state consent – as are treaty-based obligations – or in state acquiescence – as are custom-based obligations. They present an opportunity to ground the aspirations of international jurists in formal, positive law, without resorting to (too moralizing) “natural law”. Resort to “general principles” in fora of international law – whether in the classroom, the International Court of Justice, or the United Nations’ cafeteria – may signal the extent to which jurists and state officials accede to and are prepared to recognize a body of international norms not strictly generated by state consent.
In spite of their theoretical interest, there remain some disagreements over what may constitute a “general principle of law recognized by civilized nations”. Turning to the travaux preparatoires for the relevant provision offers little assistance. The source of law evidenced in those proceedings was born from a desire to simultaneously preclude an envisioned Permanent Court of International Justice from ruling non liquet, while at the same time constraining judges from acting as a free-handed, creative legislator when deciding cases in which there was no readily applicable law. Representatives at the 1920 Committee sought to constrain those judges’ freedom by limiting them to those maxims of law “which were accepted by all nations in foro domestico”.
That articulation, however, is hardly satisfying. Clearly not all maxims of law accepted by nations in foro domestico could be transplanted, lock stock and barrel, into an international legal system. Moreover, there are other maxims that would constitute “general principles of law recognized by civilized nations” that are not included in foro domestico, or, rather, states’ recognition of these general principles are not evidenced in foro domestico, but by states’ adherence to these maxims of law in discrete rules in other inter-state treaties.
At a traditionally-accepted minimum, “general principles” have acted as a source for rules that are both recognized in a large sample of different legal systems and that are appropriate for application in international law. Less conventionally, “general principles” may posit maxims of law consistently reflected in international treaties, some standards of natural law, rules or principles derived from “the very nature of man as a rational and social being”, or rules or principles derived from the nature of the international community.Interestingly, such a potentially important source of law has remained under-developed and un-clarified.
Their full contribution to international law remains largely uncharted. To date, while most observe a relatively marginal role played by this source of norms, others stress the significant contributions made in the realms of evidentiary and procedural rules at a myriad of international tribunals. Perhaps, then, their most significant independent contributions will forever be as “gap-fillers” for notoriously under-elaborated, treaty-generated legal regimes.
 Professor Mark Janis, “Introduction to International Law”, at Oxford University’s Continuing Education Summer International Human Rights Programme, July 11th, 2010.
Permanent Court of International Justice, Advisory Committee of Jurists, Proces Verbaux of the Proceedings of the Committee, June 16th-July 24th 1920, with Annexes (The Hague, 1920) at p. 335.
M. Koskenniemi, “General Principles: reflections on constructivist thinking in international law” in Sources of International Law, M. Koskenniemi, ed. (Dartmouth: Ashgate Publisher, 2000) p. 363.
See Oscar Schacter, International Law in Theory and Practice(Dordrecht: Martinus Nijhoff Publishers, 1991) at p. 91.
J. Lammers, “General Principles of Law Recognized by Civilied Natons” in Essays on the Development of the International Legal Order,F. Kalshoven, eds., (Alphen aan den Rijn, 1980) p. 70-74.