Reassessment of the ‘General Principles of Law’ Referred to in Article 38(1)(c) of the ICJ Statute
| Author | Hye-Ryon Son,Son-Gyong Jong,Won-U Kang,Myong-Il Ri,Yun-Chol Ko,Hui-Chol Pak |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/00208817221100912 |
https://doi.org/10.1177/00208817221100912
International Studies
59(2) 144 –162, 2022
© 2022 Jawaharlal Nehru University
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DOI: 10.1177/00208817221100912
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Research Article
Reassessment of the
‘General Principles of
Law’ Referred to in
Article 38(1)(c) of the
ICJ Statute
Hye-Ryon Son1, Son-Gyong Jong1, Won-U Kang1,
Myong-Il Ri1, Yun-Chol Ko1 and Hui-Chol Pak1,2
Abstract
Currently, there exist several academic and legal questions on which common
perception is not established among states. One of them concerns the
interpretation of ‘general principles of law’ mentioned in Article 38(1)(c) of the
Statute of the International Court of Justice. Variance in the interpretation of
‘general principles of law’ manifests itself mainly in controversies over whether
they are principles of domestic law or international law and over the implication
of ‘civilized nations’ that qualifies ‘general principles of law’. The article aims at
analysing such divergent views surrounding ‘general principles of law’ and voicing
the authors’ view on the matter. By examining the principles in comparison with
international conventions and custom, and in terms of wordings employed in
the relevant provisions, the article attempts to demonstrate that they must be
viewed as principles shared by national law systems of certain states. It also
argues that in view of the essential characteristics of international law, and in
terms of the meaning of the term ‘civilized nations’, ‘general principles of law’
cannot be deemed a universal source of international law, and in particular, that
since the phrase ‘civilized nations’ was not intended to include all states in the
world, it is necessary to amend the relevant wording.
Keywords
‘general principles of law’, civilized nations, international treaty, international
custom, International Court of Justice, International Law Commission
2 Korean International Trade Arbitration Committee, Pyongyang, DPR Korea
1 Department of International Law, Faculty of Law, Kim Il Sung University, Pyongyang, DPR Korea
Corresponding author:
Hui-Chol Pak, Kim Il Sung University, Pyongyang, DPR Korea,
E-mail: hc.pak0101@ryongnam.edu.kp
Son et al. 145
Introduction
The 1920 Statute of the Permanent Court of International Justice (PCIJ Statute)
was the first international instrument incorporating the term ‘general principles of
law’. In international judicial practice, however, concepts similar to ‘general
principles of law’ had been in use from the late 19th century until the early 20th
century. Concepts like ‘general principles’, ‘principles of natural justice’, ‘general
principles of law of nations’ or ‘generally recognized principles’ were employed
in cases where there were no applicable treaty provisions or when existing rules
provided no clear answer. For example, in a 1912 case regarding the interest
payment between Russia and Turkey, the Arbitration Court decided according to
the general principles of national laws as no relevant treaties or customs existed.
Such domestic general principles included principles of interest payment in the
event of delayed debt and force majeure, estoppel etc. (Ge, 2017, p. 43).
Concepts similar to the ‘general principles of law’ were used in both substantive
and procedural issues (Arakas (The Georgios) Case, 1927, pp. 43–45). Although
such concepts were used in dispute resolutions at times, they have caused
controversy in the international legal scholarship ever since it was introduced.
Debates surrounding them were initiated and intensified with the establishment
of the League of Nations. Shortly after it was established, the organization decided
to establish an international judicial organ whose function would be to settle
disputes among states and, to that end, organized, in 1920, the Advisory Committee
of Jurists (ACJ) composed of publicists of various states to draft the PCIJ Statute.
The then ACJ President, Belgian jurist Baron Descamps, proposed a formula
on general principles that besides treaties and generally accepted customs, ‘the
rules of international law as recognised by the legal conscience of civilised
nations’ should be applied by the PCIJ (Cheng, 2012; Degan, 1997, pp. 41–53;
PCIJ, Advisory Committee of Jurists, 1920, p. 306; Pellet, 2002). His view, which
seemed to be rooted in natural law, did not find majority support in the ACJ. Some
jurists in the ACJ, who had a positivist position, contended the ‘general principles
of law’ should be distilled from positive law but not from natural law, considering
that concepts of natural law are not in harmony with international rules. Lord
Phillimore, who worked as a member of the ACJ, supported the application of
positive law in the PCIJ, explaining that ‘general principles of law’ referred to
‘maxims of law, or principles accepted by all nations in foro domestico’ (Parry,
1965, p. 83) and maintaining that all common law principles can be applied to
international matters and are therefore part of international law (Gaja, 2016, p.
371). In fact, such argument was motivated by political self-interest to give a
semblance of ‘general principles of law’ to the British common law by describing
them as universal ones that all states must observe.
A US delegate, Elihu Root, argued that judges could only apply ‘recognised
rules’ to reach decisions and if no such rules exist, they ‘should pronounce non-
liquet’ (League of Nations, 1920, p. 385; PCIJ, Advisory Committee of Jurists,
1920, pp. 306, 333), emphasizing that states would not trust courts that enforce
legal conscience. He cautioned that the concept proposed by Baron Descamps
‘constituted an enlargement of the jurisdiction of the Court which threatened to
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