Chapter III

Foundations of International Law:

The Role and Importance of Its Basic
Principles

I. Introduction
One cannot study International Law making abstraction of its foundations, oth-
erwise it would be reduced to an instrumental of the establishment of interna-
tional order. International Law goes much further than that, in the quest of hu-
mankind for the realization of justice at both national and international levels.
Nor can one study the foundations of International Law making abstraction of its
basic principles, which form the substratum of the legal order itself. It is indeed
the principles of International Law which, permeating the corpus juris of the dis-
cipline, render it a truly normative system. Without those principles, the norms
and rules of International Law would not have evolved, by their implementation,
into a legal system.1 Those principles inspire the evolving jus gentium, in which
basic considerations of humanity have an important role to play.2
Those principles are a manifestation of the international juridical con-
science, they reflect the status conscientiae of the subjects of International Law.3
Although such principles (as those listed in Article 2 of the U.N. Charter) may
be open, given their generality, to distinct interpretations,4 they retain their im-
portance for the proper application of the norms and rules, and for guiding the
evolution of the entire legal system,5 so that this latter may readjust to the chang-

1 P.G. Vallindas, “General Principles of Law and the Hierarchy of the Sources of Inter-
national Law”, in Grundprobleme für internationalen Rechts – Festschrift für Jean
Spiropoulos, Bonn, Schimmelbusch & Co., 1957, pp. 426 and 430-431.
2 Cf. chapters XVI to XXIII, infra.
3 A. Verdross, “Les principes généraux de Droit dans le système des sources du Droit
international public”, in Recueil d’études de Droit international en hommage à Paul
Guggenheim, Genève, IUHEI, 1968, p. 525.
4 Cf., e.g., G. Tunkin, “‘General Principles of Law’ in International Law”, in Interna-
tionale Festschrift für A. Verdross (eds. R. Marcic et alii), München/Salzburg, W.
Fink Verlag, 1971, pp. 525-532.
5 M. Virally, “Le rôle des ‘principes’ dans le développement du Droit international”,
in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève,
IUHEI, 1968, pp. 543, 546-547 and 553-554.
56 Chapter III

ing circumstances of international life, respond to the changing needs of the in-
ternational community, and contribute to fulfil the aspirations of humankind.

II. The Position and Role of the General Principles of Law

Every legal system has fundamental principles, which inspire, inform and con-
form their norms. It is the principles (derived ethmologically from the Latin prin-
cipium) that, evoking the first causes, sources or origins of the norms and rules,
confer cohesion, coherence and legitimacy upon the legal norms and the legal
system as a whole. It is the general principles of law (prima principia) which con-
fer to the legal order (both national and international) its ineluctable axiological
dimension; it is they that reveal the values which inspire the whole legal order
and which, ultimately, provide its foundations themselves.6 This is how I conceive
the presence and the position of the principles in any legal order, and their role in
the conceptual universe of Law.
The general principles of law entered into the legal culture, with histori-
cal roots which go back, e.g., to Roman law, and came to be linked to the very
conception of the democratic State under the rule of law, mainly as from the
influence of the enlightenment thinking (pensée illuministe). Despite the appar-
ent indifference with which they were treated by legal positivism (always seeking
to demonstrate a “recognition” of such principles in positive legal order), and
despite the lesser attention dispensed to them by the reductionist legal doctrine
of our days, yet one will never be able to prescind from them. From the prima
principia the norms and rules emanate, which in them find their meaning. The
principles are thus present in the origins of Law itself, and disclose the legitimate
ends to seek: the common good (of all human beings, and not of an abstract col-
lectivity), the realization of justice (at both national and international levels), the
necessary primacy of law over force, the preservation of peace. Contrary to those
who attempt – in my view in vain – to minimize them, I understand that, if there
are no principles, nor is there truly a legal system.
The identification of the basic principles has accompanied pari passu the
emergence and consolidation of all the domains of Law, and all its branches (con-
stitutional, civil, civil procedural, criminal, criminal procedural, administrative,
and so forth). This is so with Public International Law (cf. infra), with the In-
ternational Law of Human Rights,7 with International Humanitarian Law,8 with

6 Cf., to this effect, Inter-American Court of Human Rights [IACtHR], Advisory

Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Mi-
grants, of 17.09.2003, Concurring Opinion of Judge A.A. Cançado Trindade, pars.
44-58.
7 Principles of the dignity of the human person, of the universality and indivisibility
of human rights, of the inalienability of human rights.
8 Principles of humanity, of proportionality, of distinction (between combatants and
the civil population), principle whereby the election of methods or means of combat
is not unlimited.