General principles of law – judicial theory or everyday practice of international courts?
United Nations Headquarters, New York
26 October 2016
Identification and definition of general principles of law
Remarks of Dr. Marija Đorđeska
I would like to thank the Permanent Mission of the Republic of Poland to the United Nations
in New York and the Ministry of Foreign Affairs of the Republic of Poland for organizing this
panel and for inviting me to speak on the topic of general principles of law.
Introduction
The year 2020 will mark one century since the adoption of the Permanent Court of International
Justice (PCIJ) Statute, which first classified the sources of international law. But scholars have
not yet come to a consensus on what general principles of law are. No comprehensive research
has been done on general principles as applied by the international courts and tribunals –
especially within the jurisprudence of the International Court of Justice (ICJ) in the last 70 years.
The 100-year-old challenge has inspired me to dedicate my doctoral work to the survey of the
entire jurisprudence of the PCIJ, ICJ, and the International Criminal Tribunal for the former
Yugoslavia (ICTY). This laborious but interesting process led me to the definition of what
general principles of law are.
During this presentation I will focus only on the identification and the definition of general
principles, within the meaning of Article 38, paragraph 1(c) of the ICJ Statute. My doctoral
findings included also how international courts and tribunals apply general principles and what is
the position of these principles among the sources of international law. I am currently working
on a digest of all general principles that I identified in the decisions that I analyzed.
Definition
My definition of general principles of law is the following: they are judicially made binding
rules of international law that fill in the absence of a uniform international legislator and are
applicable to the entire international community, equally and universally.
How did I come to this definition when no international tribunal said it out loud? I determined it
after I inductively analyzed 229 decisions of ICJ, PCIJ and ICTY, and after thoroughly
reviewing the drafting history of the PCIJ Statute. I did not rely on any scholarly work
in analyzing the results because the scholarship provides many conflicting views (hence, not
consensus yet) and because the drafting history pointed to the international courts as the main
source of information on what general principles could be.
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Drafting history
The drafting history indicated that general principles of law are judicially-made and that they
are actually rules. The PCIJ Statute was drafted by ten prominent international lawyers in 1920 –
the Advisory Committee of Jurists (ACJ).
First as to the finding that general principles are judicially-made: the ACJ was in agreement for
whom the third source was being drafted – that is for international courts and tribunals (and for
the PCIJ in particular). The purpose of the adoption of this source was not to expand but to limit
the international law-making authority of the international courts and tribunals. The ACJ wanted
to limit the PCIJ in rendering arbitrary decisions. The Committee envisioned general principles
as tools for courts (not States) in solving international disputes. In ACJ’s proposal, later reflected
in Article 38 of the ICJ’s Statute, States do not identify this source of international law – only
international courts and tribunals do.
As to the finding that general principles are rules, we can also look at the drafting history of the
PCIJ Statute. Here I want to note that the ACJ had only 3 days in 1920 to discuss the sources of
international law. The committee members presented two proposals for the third source of
international law. The second suggestion is well-known now, because it is the current
formulation in Article 38, paragraph 1(c). However, the first formulation was “rules of
international law recognized by the legal conscience of the civilized nations”.
The change from “rules” to “principles” was never explained. The first proposal never
warranted a connection to “principles” in the ordinary sense of the word as they may have been
referred to by the early scholars. The minutes of ACJ meetings also do not provide any proof that
the second formulation also intended to change the paragraph’s content. This source was still
representing rules of international law because of the chapeau of Article 38. Hence, general
principles are rules, not principles in the ordinary sense of the word. The formulation of “general
principles” is therefore a misnomer.
Examples
By analyzing 229 decisions I identified 220 general principles. They are all rules of international
law, and majority of them were not part of international law until the court identified them. I will
provide two examples of what has been referred to in the international jurisprudence as
principles within the meaning of Article 38.
The first is of the principle of lex mitior. The principle of lex mitior was identified by the ICTY
in the Dragan Nikolic case (who was a commander of a detention camp, convicted of crimes
against humanity). This general principle provides the rule that a more lenient law should be
applied if international law changed from the time the defendant committed the crime, to the
time of his sentencing. The ICTY did not apply this general principle (because the international
law did not change since the time the crime had been committed). However, should this rule
would have been applied, it could have had a major impact on how many years the defendant
would spend in jail. Nikolic was sentenced to 20 years’ imprisonment. If this rule would apply in
his case, he might have been sentenced for much less. It is worth noting that the European Court
of Human Rights adopted a variant of this principle (rule) – the “most favourable law principle”.
It changed the entire jurisprudence of the ECtHR.
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The second example I want to give you is that of the principle of diplomatic protection.
Diplomatic protection is largely viewed today as a field of international law and not as a specific
rule. The International Law Commission drafted 19 draft articles with commentaries on the
subject. However, it all started with the court adopting a general principle. In 1924, the PCIJ
identified in Mavrommatis case that Greece had the right to institute proceedings against the UK
because of the harm done by the UK to its national. The PCIJ referred to the “elementary
principle of diplomatic protection”. In identifying it, the court did not rely on any treaty,
domestic law, or other jurisprudence. In many subsequent decisions, the PCIJ referred to it as to
a rule, and a right, and when adopted in the ICJ jurisprudence, this rule lost its prefix
of a “principle” altogether. Although international judges may consider this as part of customary
international law, it all began as a general principle, identified by the PCIJ.
The “cube”
The above given are only two examples among many. All 220 general principles that I identified
have something in common: one content-related and one or more underpinning-related
characteristics.
On the content side, a general principle of law can be either substantive, procedural or
interpretative. These three distinctions tell which subjects are being regulated and in what
setting. Substantive general principles, for example, regulate the conduct of states and other
members of the international community. Procedural general principles regulate both states
and the international tribunals, but only during the proceedings before the court. Such general
principle is the principle of diplomatic protection. Applying this rule outside the court
proceedings does not make sense. The third category are the interpretative general principles,
which are rules that only apply to international tribunals, and not to States; and they do not
represent the applicable law as such. Such is the principle of lex mitior, which guided the ICTY
in finding the applicable law.
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On the underpinning side, there are also three possible underpinnings: international, domestic
and judicial. Most associated with the general principles is the domestic underpinning – this is
when the international courts identify a general principle in States’ domestic legislation. I would
like to note here that although a court identifies a general principle in domestic legislation, that
rule becomes a rule of international law, and ceases its existence at the domestic level-at least for
the international court. But domestic underpinning is not the only one (and it is the most rarely
used one).
Another possible underpinning of general principles is international underpinning. That means
that international courts and tribunals identify a general principle in the other two sources of
international law (either treaties or customary international law). In that case, a rule is part of
more sources of international law at the same time.
Lastly, a general principle can be also identified without the court relying on any other basis.
I named these instances “judicial underpinning”, because the court relies only on its inherent
authority to decide in identifying those rules. For example, the principle of diplomatic protection
is a general principle with a judicial underpinning. In fact, most of the general principles
identified by the ICJ had a “judicial underpinning”, while the PCIJ identified a lot of general
principles with an international underpinning.
Reformulation of the third source of international law in Article 38
In conclusion, I would like to suggest a reformulation of the third source of international law
based on my findings (the current being: “general principles of law recognized by civilized
nations”). This will help practitioners and scholars adopting a more coherent approach to general
principles in the future and actually use them in their work, as the third subset of rules of
international law.
I suggest removing the words “of law”, as they are not needed (all rules used by international
tribunals are rules of law). I would also remove the reference to “civilized nations”. This is an
archaic term, that was most likely meant to stand for what we know today as “the international
community”. In addition, I would add the reference to “recognized by international courts and
tribunals”, as general principles have been drafted for their use and identification. The final
version would thus read: “general principles recognized by the international courts and tribunals,
and applicable to the entire international community”.
If we want to strengthen the application of international law we need to know inter alia what are
the legal tools at our disposal. Clarifying the third source of international law will give us an
opportunity to rely on a completely new subset of rules to which we did not have access before.
Basing our scholarly findings on a more scientific and objective research based on induction will
be a positive step in this direction.
I hope that my presentation explained how general principles form part of the building blocks of
international law. I also hope that when the 100th anniversary of the adoption of the PCIJ Statute
arrives, we will celebrate it by having clearer idea of what all sources of international law are and
how can we, while recognizing them, build a better future for international law.
Thank you.
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