General Principles of Law and where to Find Them

Image downloaded from: http://www.gbeye.com/fantastic-beasts-and-where-to-find-them-street-maxi-poster

Introduction

In the movie Fantastic Beasts and Where to Find Them, Newt Scamander and his colleagues must find magical creatures scattered around New York. Otherwise chaos would happen. Similarly, there are so many general principles of law and they are scattered all over the world. Without general principles of law, there would be no rule that close the gap that might be left uncovered in international law, potentially also leading to chaos.

“It is for such a reason that the provision of ‘the general principles of law recognised by civilised nations’ was inserted into article 38 as a source of law, to close the gap that might be uncovered in international law and solve this problem which is known legally as non liquet.” – Malcolm Shaw

Hence, this post will talk about what is a general principles of law and where to find them, of course, in the judgments of ICJ and its predecessor – PCIJ.

“General Principles of Law recognized by Civilized Nations”

Academy of International Law distinguished five different basis for authority and validity as law of a general principle.

1. The principles of municipal law “recognized by civilized nations”

2. General principles of law “derived from the specific nature of the international community”

3. Principles “intrinsic to the idea of law and basic to all legal systems”

4. Principles “valid through all kinds of societies in relationships of hierarchy and co-ordination”

5. Principles of justice founded on “the very nature of man as a rational and social being”

Article 38(1)(c) of ICJ Statute clearly stipulates general principles as “general principles recognized by civilised nations”. What does the requirement of “general principles recognized by civilised nations” mean? And to what kind of principles that ICJ meant?

The kind of principles that ICJ considers as a source of international law refers to general principles of international law and general principles of national law. In regards to where to find them, we will discuss later on. The first question is the real deal. To what extent do we consider a ‘principle’ to be ‘general’? To qualify as a “general principle”, Gutteridge describes the element of generality as follows.

“If any real meaning is to be given to the words ‘general’ or ‘universal’ and the like, the correct test would seem to be that and international judge before taking over a principle from private law must satisfy himself that it is recognized in substance by all the main systems of law, and that in applying it he will not be doing violence to the fundamental concepts of any of those systems.”

Here, we can see that generality of a principle is to be determined by how all the main systems of law recognized it. It can be inferred that “recognized by civilized nations”, in this sense, serves as a tool to determine the ‘generality’ of a principle.

In finding general principles within national law, J.G. Lammers stated that comparative study of national legal systems on a particular point of law is needed. J.G. Lammers further elaborated that adequate research on the generality of a principle in many national legal systems may influence the formation of customary international, in that they inspire the draftmens of treaties and/or initiators of certain practice of States.

Case concerning Right of Passage over Indian Territory

(Portugal v. India)

In 1953 until 1954 there was an uprising led by a movement known as the United Front of Goans in the Indian enclave of Darda and Nagar Haveli. Based on the Treaty of Poona and Sanads, Portugal had sovereignty over Darda and Nagar Haveli. At the time this insurrection took place, Portugal wanted to maintain effective control and maintain order in the area. However, according to Portugal, India hampered its access to this enclave.

India's actions that made it difficult for Portugal to access the Dardan and Nagar-Haveli areas began with giving barriers. Later, Portugal declared that India had done nothing against the uprising by Goans that disrupted Portuguese sovereignty. Moreover, Portugal also twice asked India to be allowed access to deliver armed forces to maintain order. However, the request was rejected by India. This, according to Portugal, prevented and troubles Portugal in defending its sovereignty in the Dardan and Nagar-Haveli.

These actions, considered by Portugal as a violation of the rights of passage owned by Portugal under customary international law and the principle of common law in implementing its sovereignty. On the other hand, India declared that the Court has no jurisdiction over this case because the Indian declaration states that things that still enter into Indian jurisdiction are not resolved by the Court. India further stated that the rights of passage does not fall under international law, but concerns India's jurisdiction.

ICJ held that Portugal had rights of passage in the transport of private persons, government officials and goods. However, ICJ did not agree that the right of passage shall apply in the case of armed forces transportation. For such transportation, Portugal needed permission. In relation to the rights of passage status, ICJ stated that:

"Having arrived at the conclusion that the course of the dealings between the British and the Parties, by virtue of which Portugal had acquired a right of passage in respect of private persons, civil servants and goods in general, the Court does not consider it necessary to examine the general principles of law recognized by civilized nations may lead to the same result.”

This is due to the fact that rights of passage in regards to transportation of armed forces relied on reciprocity.

In this dispute, one of the main contention of India regarding general principles of law was the difficulty of transposing a general principle that is found on national plane into international law. Although ICJ did not deal with this issue in its judgement, Judge Wellington Koo rebutted India’s contention.

"The existence of two conflicting rights, however, is not an uncommon phenomenon in international law. In the complexities of intercourse between nations such a situation is often unavoidable. It is, however, not an intractable problem; its solution only calls for mutual adaptation and adjustment. By reference to, and application of, the general principles of law as stipulated in Article 38, 1, (c), of the Statute, as well as to customary international law, similar situations have found solutions in the past. In municipal law, as disclosed by a comparative study by Professor Max Rheinstein, the right of access to enclaved property is always sanctioned. Admittedly, there are important distinctions between a right of passage of an international enclave and that of an enclaved land owned by a private individual. But in whatever mould municipal law may be cast, in whatever technical framework it may be installed, in harmony with national tradition or out of preference for a particular legal fiction, the underlying principle of recognition of such a right, in its essence, is the same. It is the principle of justice founded on reason."

South West Africa (Advisory Opinion, ICJ, 1950)

The main concern in this advisory was South Africa's desire to include the South West Africa region, or what is now known as Namibia, into its territory. In keeping with the Mandate of the League of Nations post World War I, South Africa was in charge of administering Namibia to ensure its prosperity and development. But with the dissolution of League of Nations, South Africa considered that the Mandate wass no longer applicable and intended to integrate South West Africa into its territory. The successor of League of Nations, the United Nations, rejected this and advised South Africa to put Namibia in a trusteeship. However, South Africa did not follow suit. As a result, this advisory opinion is asked to question the international status of South West Africa.

The important note I would like to highlight is how Judge McNair found a general principle governing a mandate. He carefully examined the nature of the Mandate itself. The Mandate was governed by Article 22 of the League of Nations Charter, which stated that the Mandate granted by the League of Nations obliged to States that are given the Mandate to represent the League of Nations in managing the territory that is not yet self-sufficient. Judge McNair later stated that there is a general principle governing the Mandate and can be applied in international law as a source of law in accordance with Article 38 of the Statute of the Court. Judge McNair stated that with regard to the mandate, there are three general principles governing it:

1. That the control of the party holding the mandate to the property mandated to him is limited.

2. That the party given the mandate is under an obligation to carry out the mission or task assigned to it.

3. That any attempt to take over property by a party authorized to make such property is illegal.

Judge McNair also stated that the root of this principle comes from private law. The existence of this principle can also be seen in the practices of South Africa and Australia, such as the judges' ruling in Rex v. Christian and Ffrost v. Stevenson.

Conclusion

General principles of law recognized by civilized nations are used to fill in the gaps in international law. As contested by India in Rights of Passage, transposing a general principle found within national law to international is considered as difficult. However, specifically referring to rights of passage, as long as the essence is the same, there shall be no difficulty. In South West Africa, we see that the opinions of both J.G. Lammers and Gutteridge are supported as Judge McNair, in finding a principle, referred to judgments in national courts.