3 General Principles of Law

General Principles of Law (“Recognized by Civilized Nations”, as originally drafted) is a rather controversial source of law. The reasons for this status are the degree of ambiguity about this source as well as its’ potentially great scope that would limit states’ sovereignty. The contentious issue is battled by legal positivists on the one hand, who deny that any law should have other source than one involving state consent. Other normative theorists of international order base their reasoning in deontological or a priori principles of conduct inherently necessary to be a part of any recognized set of international rules (as would be the case of the human rights regime, for example). The focus in general principles is to summon legal principles common to almost all municipal legal systems. A subsidiary function why these are included as a source of law in Art. 38 is the possibility of filling any gaps of non liquet situations in the workings of the World Court (this is, cases where no treaty stipulations nor custom are applicable). Classical international law literature identifies these generally accepted principles in particular: circumstantial evidence, estoppel, good faith, equity, res judicata, and the obligation to make reparations (Barker 2000: 68). Circumstantial evidence refers to the logical necessity of a certain stand based on indirect physical proofs. Related is the principle of estoppel, which embodies a rule of non-contradiction in state behavior: states are not allowed to claim one position and behave in a different way, or hold one position today and a different tomorrow, and demand justice based on one of these positions. The assumption of good faith in signing treaties has been mentioned earlier in this paper. Equity has been invoked in many instances; it is agreed, however, that is cannot operate contra legem (against already established legal rules). The significance of general principles, similarly to that of customary law, has been lessened by the increased codification of international law by treaties (for example, of good faith in the Vienna Convention on the Law of Treaties of 1969), and they serve more or less as sources of inspiration often invoked rather than sources of law proper (this agreement in, for example, Cheng 1953 in Dekker & Werner 2003: 13).

4 Judicial Decisions, Influential Writings

In its decisions, the International Court of Justice may apply it’s own or other judicial decisions and influential writings as a subsidiary means for the determination of applying principles when deciding a particular case (on the workings of the World Court see below). This power is limited in its application by Art. 58 of the Statute, which reads that in this case, “the decision of the Court has no binding force except between the parties and in respect of that particular case (see Appendix below). Wallace (2002: 27) mentions the decisions of the US Supreme Court and the English Prize Courts as the most highly-regarded by the ICJ. Teachings of important figures in international law have been used repeatingly, as in the case of the “freedom of the seas” (Hugo Grotius) or the law of treaties (Lord McNair). Barker (2000) supplements this observation with a claim that only when practiced do these judicial decisions or writings acquire a binding power of a customary law. 2.5 Article 38 and the Workings of the International Court of Justice.

At this point, it would be suitable to elaborate more on the decision-making process of the World Court when settling disputes among states. International Court of Justice (the World Court, or just ICJ) is the principal judicial organ of the United Nations Organization, established in 1945-46 by the United Nations Charter. Its headquarters are in The Hague, The Netherlands. English and French are the its two official languages. The court decides by majority voting out of fifteen judges elected by the UN General Assembly and the Security Council for a nine year term. Today’s judges come from countries as diverse as the United Kingdom (president of the court Rosalyn Higgins), Jordan, Madagascar, Venezuela, Germany, Slovakia, New Zealand, or Russia (there are no two or more judges from the same UN member state). Article 38 belongs to Chapter II: Competences of the Court of the Court’s Statute, and prescribes the ICJ to arrive at its decisions according to the above-mentioned law-creating processes (treaties, custom, general principles, judicial decisions, authoritative writings). De facto, thus, the Art. 38 by delineating the means for the determination of rules of law also stipulates the forms of legalization recognized by the world community – that is; what is regarded as law. Moreover, since there is no code-book of international law, the Court can be said to be based partly also on the precedent principle: Under Art. 38 §1d, the Court in its decision-making may consider its own previous decisions. In reality, the ICJ indeed rarely departs from its own previous decisions and treats them as precedent in a way similar to courts in common law systems. If the parties agree, they may also grant the Court the freedom to decide ex aequo et bono (“in justice and fairness”), providing it with the freedom to make an equitable decision based on what is fair under the circumstances. The Court operating under ex aequo et bono would act in some ways similar to a private arbitrator in national jurisdictions. However, this provision has not yet been used in the Court’s history (according to Wikipedia 2006).