Priyanka Preet*

Understanding General Principles of Law

Dame Rosalyn Higgins opines, ‘International law is not rules. It is a normative system.’ She claims that to strengthen International Law, common values such as freedom, justice, equality, equity ‘require a normative system.’ For this, law requires constant revisitation, fresh interpretation and newer norms which align with the objectives sought to be achieved. It is majorly due to these normative principles that International Law does not transcend into a body of black letter law and sustains as an ongoing process.

General Principles of Law are amongst the primary sources of International Law. They were referred to in Article 38(1)(3) of the PCIJ Statute and are currently acknowledged under Article 38(1)(c) of the ICJ Statute, which reads as follows:

“(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: …  c. the general principles of law recognized by civilized nations; ….”

While the term ‘civilized nations’ raised questions as to which nations were ‘civilized’, it is now fairly settled that all United Nations Member States are ‘civilized.’ However, the definition and scope of General Principles continue to puzzle jurists and adjudicators alike. Byers describes General Principles as ‘principles of jurisdiction, personality, reciprocity and legitimate expectation…are too general in character to impose specific normative requirements on States, they nevertheless constitute a firmly established framework within which other, more precise customary rules may develop, exist and change.’ These Principles thus function as ‘integrative tools’ by bridging gaps in potential legal rules and lex lata and lex ferenda, the law as it exists and the future law. The PCIJ and ICJ have not applied General Principles explicitly, though principles like nemo judex in re sua, restitution in integrum, res judicata have been invaluable while adjudicating cases before international tribunals.

General Principles and Treaty Law

General Principles are indeterminate in their scope. Their generality allows them to be used to fill gaps left open by Treaty and Customary Law. For instance, the principles of pacta sunt servanda, sovereignty, equality of States, good faith have moulded Treaty Law and have ensured their orderly functioning.  According to J Pauwelyn, General Principles infuse an element of potency in International Treaty Law by leaving enough room for adjustment to tackle modern challenges. While certain principles like Article 31 of the Vienna Convention on the Law of Treaties (VCLT) are the solid brick stones of Treaty Law, there are certain open-textured principles which sieve out the outdated elements in Treaties. A classic instance of this approach can be seen in the seminal decision of the International Court of Justice in the Gabcikovo-Nagymaros case where the Court resorted to the Principle of Sustainable Development to conserve the fragile ecosystem of the river Danube. The parties were directed to revisit their contractual obligations to build dams over the river in keeping with the principle of sustainability.

Treaty Law can often be conflicting and overlapping and can make the legal system brittle and fragile. Right to Food versus Right to Environment, Human Rights versus Free and Liberal trade are areas of conflicts which the Sates cannot easily resolve. In Gabcikovo-Nagymaros, the conflict between a contractual obligation and the Principle of Sustainability was resolved by taking recourse to General Principles. Thus, General Principles serve as  the ‘glue between treaties’ because of their open-textured characteristic and their ability to conciliate lacunae.

General Principles and Customary International Law

Till now, the ICJ has drawn no distinction between Customary Law and General Principles and has used these terms interchangeably or has collectively referred them to as ‘general international law.’ Even in modern times, both are increasingly being deemed as synonymous owing to the gradual erosion of ‘practice over time’ as a requirement of Customary Law. The ICJ’s interpretation in the North Sea Continental Shelf Cases is a pertinent example. In the said case, the Court laid the foundations for recognition of  ‘Instant Custom’ or short-term State Practice amounting to customary international law. Another noteworthy example is the practice of torture. Many believe that torture is not prohibited by customary law since some States do indulge in it and have even justified the expansion of the practice, but General Principle forbid torture. The erosion of the requirement of State Practice has caused a merger between custom and General Principles, resulting in torture being regarded as a gross violation of both Customary Law and General Principles.

This however, does not imply that there is no distinction between the two. General Principles encompass abstract norms, values and rules which carry ‘persuasive authority’ and not ‘binding authority.’ This lack of ‘binding authority’ does not establish any hierarchy between General Principles and Customary Law and hence, certain Customary Rules emanating from general principles of municipal law might be buttressed by State Practice and yet continue to be regarded as ‘principles.’ The principle of equity and estoppel are well-defined in International Law due to ‘frequent invocation’ and yet they prevail as General Principles akin to their ‘municipal law counterparts.’ Customary Rules may also be deduced or recognized through General Principles thus providing an underlying sense of cohesion between the two. This is of invaluable help when rules are unclear, contradictory, overlapping or undergoing development.

The Sixth Committee on the International Law Commission in 2017 recognized a compelling need to differentiate General Principles from other concepts and norms. India, however, painted all the sources with the same brush and labeled them as ‘essentially the same things.’ The ILC Report of the Sixty Ninth Session even suggested that general principles form the basis of jus cogens, while pointing to Article 53 of the VCLT. During this deliberation, many divergent views emerged which contended that the indeterminate feature of these principles was the reason that they were cast aside during the drafting of Article 53 and hence the ILC should not even refer to them while considering jus cogens norms. While India’s observation that all these sources are identical is not entirely incorrect, the degree of practice required, distinguishes them from each other and this distinction cannot be downplayed.

General Principles and Judicial Decisions

General Principles were included as a primary source in the Statute of the Permanent Court of International Justice. While positivists have insisted that Judges should only abide by ‘recognized rules’ and should adjudicate non liquet, others proposed that General Principles serve as the legal conscience of the civilized people and hence should be resorted to in the absence of law. The current version of Article 38(1)(c) is a compromise between the Positivists and Naturalists.

Despite several ambiguities, the Courts have recognized these principles as autonomous and have applied them, albeit with caution. The ICJ referred to the ‘principles underlying the Genocide Convention’ as ‘principles which are recognized by civilized nations as binding on States.’ In The East Timor case, it further reiterated the significance of General Principles while expounding on the Principle of Self Determination. General Principles have not only been employed by the ICJ, but also by the International Criminal Court and tribunals. The doctrine of proportionality of punishment, duress as a mitigating factor for sentencing, burden of proof on the accuser have been invoked innumerable times through Article 21(b) of the Rome Statute.

General Principles do pose a problem for adjudicators at times. Courts have limited the use of these principles by applying only those principles which emanate from municipal laws rather than the amorphous category of ‘international legal conscience’. However, this means that Courts have failed in identifying which norms are widely accepted and whether  norms are indeed General Principle or merely a product of domestic laws.

Conclusion

One may ask whether the indeterminate character of General Principles is problematic or a boon for States and adjudicators. As ‘fall-back principles’, General Principles are potent tools in integrating gaps left behind in Treaty Law. Courts and tribunals can, similarly, rely on these principles in the absence of legislation in a particular field without risking the administration of justice. Antonio Cassesse has remarked that they are indeed the foundation stones, the ‘disparate cogs and wheels of the normative framework of the international community.’

Yet, it is essential to spell out rules of recognizing these principles and distinguishing them from the other sources and this is a daunting task for the Law Commission and adjudicators. The Commission should clarify the status of General Principles within the given framework by assessing them independently and consequently in comparison with the other sources. The fluid nature of these norms has changed their roles and functions over time and this requires re-visitation to chart their future course. The Right to Passage Case and the Fabiani Case are good examples of the tendency of Judges and Arbitrators to take recourse to a comparative study of prevailing domestic laws. This does not give sufficient clarity regarding the identification and nature of General Principles.

Owing to globalization, there will only be an increased reliance on International Law. Issues pertaining to ‘Human Rights, the Environment, Economic Development and Transnational Criminality’ will come to the fore. Interestingly, all these areas lack a crystallized framework of Customary Law and hence General Principles will become the last resort for States and adjudicators alike. Considering the chequered history of these principles and their frequent application, the Commission and Courts have an uphill task of clearing the ambiguity in this domain.


*Priyanka is a BA LLB student at Dr. Ram Manohar Lohiya National Law University, Lucknow.