Challenges in the Identification of the ‘General Principles of Law Recognized by Civilized Nations’: The Approach of the International Court

49 Pages Posted: 19 Aug 2017

See all articles by Rumiana Yotova

Rumiana Yotova

Faculty of Law, University of Cambridge; University of Cambridge - Lauterpacht Centre for International Law

Date Written: August 1, 2017

Abstract

This article reassesses the legal character of ‘the general principles of law recognized by civilized nations’, being one of the two unwritten sources of international law. The general principles of law are, however, the most controversial source of international law and have continued to divide the opinions of scholars and judges alike since their inception. Some view them as private law analogies, others as emanations of natural law and there are those who conflate them with custom. This article it seeks to identify the appropriate methodology for ascertaining the existence of the controversial ‘general principles of law’. It does so by going back to the preparatory works of Article 38(1)(c) of the Statute of the ICJ and then critically assessing the practice of states and the case law of the Court on identifying general principles. It will be argued that general principles of law are an important source of international law in their own right with a systemic function in the international legal order and a distinct methodology for their ascertainment. Three categories of general principles will be distinguished based on the nuanced methodologies for their ascertainment applied by the ICJ and its predecessor, namely, general principles of international law, general principles of domestic law and general principles of procedural law.

Keywords: Sources of International Law, General Principles, International Court of Justice, Methodology, Interpretation, Identification

Suggested Citation

Yotova, Rumiana, Challenges in the Identification of the ‘General Principles of Law Recognized by Civilized Nations’: The Approach of the International Court (August 1, 2017). University of Cambridge Faculty of Law Research Paper No. 38/2017, Available at SSRN: https://ssrn.com/abstract=3020190 or http://dx.doi.org/10.2139/ssrn.3020190

Rumiana Yotova (Contact Author)

Faculty of Law, University of Cambridge ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://https://www.law.cam.ac.uk/people/academic/rv-yotova/4096

University of Cambridge - Lauterpacht Centre for International Law ( email )

Lauterpacht Centre for International Law
5 Cranmer Centre
Cambridge, CB3 9BL
United Kingdom

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