General Principles of Law and a Source-Based Approach to the Regulation of International Security Institutions

Abstract

This chapter explores an idea of the international rule of law that restrains institutional responses to contemporary security issues with the focus on the general principles of law provided in Article 38(1)(c) of the Statute of the International Court of Justice. The application of the general principles of law has the potential to extend the idea of the rule of law to the conduct of international security institutions, by virtue of its ability to derive binding norms of international law through analogy from domestic legal principles of a horizontal generality across different legal systems, including public law principles. On that basis, this chapter considers three aspects of public law principles – the principle of formal legality, constitutional interpretive principles, and certain administrative principles such as due process, access to remedies, accountability, transparency and judicial review – as potential candidates of the general principles of law in order to examine their applicability to international security institutions. It concludes by arguing that the use of these public law principles can and will confer legitimacy on the conduct of international security institutions that conform to those requirements.