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General principles of international law and customary international law

What do we mean by general principles of international law and customary international law?


General principles of law are a source of international law, identified as such by virtue of Art 38 of the UN Charter as ‘the general principles of law recognised by civilised nations’. General principles of law are discovered by looking at the laws of municipal systems and trying to detect common bonds. This does not require an appreciation of all systems, but a common theme in the various legal orders. For example, Anglo-American common law has influenced many states and Afro-Asian states have lent from the Western European systems.

General principles of law play an important ‘gap filling’ function. International law is a relatively undeveloped area of law, and unlike municipal law, cannot call on as rich a body of case law when deciding cases through the application of legal principles. Where a case involves unique circumstances or a unique issue (a situation known as non liquet), the ICJ will use these general principles to help guide and inform their decisions.

Case law indicates a series of examples of general principles being used. In the German Settlors in Poland case, the ICJ held that private rights acquired under existing law are not extinguished by virtue of change in sovereignty. In the Nuclear Tests cases the court established the principle of good faith as a general principle of international law. However, the court narrowed the application of the principle by holding that it applied to existing legal obligations only. In the Texaco Arbitration case, Libya attempted to nationalise oil production. The key issues was whether the principle of administrative contracts had become a general principle of law. The arbitrator held that while the principle was adopted in French law it was ‘unknown in many other legal systems’ and therefore there was not enough of a common pattern.




Question 2

Unlike treaties and customary international law, General Assembly resolutions are not sources of law. Under the UN Charter, these resolutions are meant to be recommendations only and consequently do not bind States. However, it would be wrong to dismiss them as having no legal effect at all. In some circumstances resolutions have had a great impact in affecting international law. The importance of resolutions was captured by the ICJ in their 1996 Advisor Opinion on nuclear weapons. The court held that resolutions may ‘have normative value’ even though they are not legally binding. The court asserted that they can provide evidence which helps establish the existence of a rule or the emergence of an opinio juris. However, the court tempered this conclusion by indicating that it would very much depend on the content of the resolution and the conditions of adoption. It is also essential to see whether an opino juris exists as to the normative character of the resolution. This requirement was highlighted in the Nicaragua case where the ICJ held that opinio juris could be deduced from ‘the attitude of States towards certain General Assembly resolutions’. However, some commentators suggest that resolutions in such circumstances have only ‘accessory value’ as an opinio juris still requires that the objective and subjective tests are satisfied. Therefore, resolutions can facilitate the law-making process but not independently.

Resolutions may also be an important ‘stepping stone on the way to adopting a treaty’. For example, the 1963 Declaration of Legal Principles governing the Activities of States in the Exploration and Use of Outer Space was used as a basis for the 1967 Outer Space Treaty.

Resolutions are not legally binding but this does not mean that they are legally irrelevant. Resolutions may be important in practice so that they sometimes function as if they were legally binding.


List of Cases and Statutes

Cases

Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States) ICJ Reports 1986
German Settlors in Poland PCIJ Series A No 17 1928
Legality of the Threat or Use of Nuclear Weapons ICJ Reports 1996
Nuclear Tests ICJ Reports 1974
Texaco v Libya Ad Hoc Award of 19 January 1977, 17 ILM 1 (1978)


Assembly Resolutions

Declaration of Legal Principles governing the Activities of States in the Exploration and Use of Outer Space, General Assembly Resolution 1962 (XVIII) UN GAOR, 18th Session, 1280th Plenary Meeting (United Nations Document A/RES/1962)


Bibliography

Rieu-Clarke A, International Law and Sustainable Development (IWA Publishing 2005)
Shaw M, International Law (6th edn, Cambridge University Press 2008)
Vos J, The Function of Public International Law (Springer 2013)


Malcolm Shaw, International Law (6th edn, Cambridge University Press 2008) 98
ibid 99
Shaw (n 1)
ibid
PCIJ Series A No 17 1928
ICJ Reports 1974
ibid
Texaco v Libya Ad Hoc Award of 19 January 1977, 17 ILM 1 (1978) [54-56]
ibid
Legality of the Threat or Use of Nuclear Weapons ICJ Reports 1996
ibid [70]
ibid
ibid
ibid
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States) ICJ Reports 1986
ibid [188]
Jan Anne Vos, The Function of Public International Law (Springer 2013) 193
Alistair Rieu-Clarke, International Law and Sustainable Development (IWA Publishing 2005) 26
Declaration of Legal Principles governing the Activities of States in the Exploration and Use of Outer Space, General Assembly Resolution 1962 (XVIII) UN GAOR, 18th Session, 1280th Plenary Meeting (United Nations Document A/RES/1962)

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Article published 25/05/2017

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