We Hardly Knew Ye? “General Principles” as a Source of International Law

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.[1] 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!”[2]

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…

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What Should Happen to an Economic or Social Right When a State Cannot Afford to Fulfill It?

Social rights – which traditionally include circumscribed rights to healthcare, education, social security and housing – amount to a tall order for States. Even residents’ right to ‘healthcare services’ can, on its own, amount to an impressive demand on any State’s financial resources. To limit the ambit of what social rights require of any State, the International Covenant on Economic, Social and Cultural Rights only obliges State Parties to undertake steps “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized”.[1] The manner in which we understand how financial constraints affect human rights will influence how we perceive social rights, States’ obligations to fulfill them, and a Court’s role in enforcing them. To set the stage, this note returns to the South African Constitutional Court’s foundational decision, Soobramoney v. Minister of Health (Kwazulu-Natal).[2]

Where Rights Are Limited by Financial Constraints

The appellant, one Thiagrag Soobramoney, had entered the final stages of chronic renal failure. His life could have been prolonged by means of regular renal dialysis. He was, however, denied this treatment by local health authorities. In brief, the hospital had adopted a policy of only affording renal dialysis treatment to patients who suffered from acute renal failure, which could be remedied by renal dialysis, or to patients who were eligible and waiting for a kidney transplant.…

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Is the Pedestal-ing of the “Rule of Law” Cause for Concern?

The “rule of law” has been put on a pedestal in international political and development discourse. No other “idea” (I am not quite sure what it is) shares its privileged place in our legal imagination. No other idea, Brian Tamanaha says, has achieved such a “global endorsement”.[1] Thomas Carothers laments that:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world’s troubles.[2]

More mental energies need be expended to put the “rule of law” in its place. Internal tensions and ignored controversies need to be better exposed. To begin, we should adopt the most formal, ‘thinnest’ understanding of the rule of law: that laws ought to be prescribed, forward looking, written and made public, relatively clear, non-conflicting, and that adjudicative forums ought to be accessible and impartial.

Understood that way, the ‘rule of law’ is an end-point. It is not a contained principle but a set of general prescriptions that are desirable because of what they do and afford to legal subjects. A legal system that adheres to formal rule of law prescriptions affords individuals the ability to make proper self-regarding decisions, because the consequences of potential courses of action are more ascertainable. Firms don’t make hallowed “life choices”, but that same certainty and stability may induce firms to invest or transact where…

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Fragmented Laws, but Estranged? Belligerent Occupation, International Human Rights Law and Legislative Reform

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