GENERAL

PRINCIPLES OF LAW
RECOGNISED BY
CIVILISED STATES
Dr Navjeet Sidhu Kundal
INTRODUCTION
⦿ The general principles of law recognised by civilised nations” is one of
three primary sources of international law along with treaties and
customary international law. Article 38(1)(c) of the International Court
of Justice Statute lists general principles of law recognized by civilized
nations (i.e. general principles of fairness and justice which are
applied universally in legal systems around the world) as one of the
source of international law.
⦿ Essentially, it is the “principles” that make up the body of municipal
law.
⦿ The provision was designed to meet the possibility of a non-liquet –
the possibility that a case could not be decided because of a gap in
the law.
⦿ The need for such a provision is obvious in the case of a decentralised
legal system where there may be no relevant customary law or treaty
obligations to apply
⦿ General principles recognised in national law constitute a reservoir of
principles which an international judge is authorised by Article 38 to
apply in an international dispute, if their application appears relevant
and appropriate in the different context of inter-State relations..
INTRODUCTION CONTINUED....
The instances in which the court had a resort
to paragraph (c) can be divided into two broad
categories.
1. The first is where the principles relate to
procedural matters, for example audi alteram
partem , nemo judex debet esse in proprio
sua causa , res judicata , circumstantial
evidence, the power of a body possessing
jurisdictional powers to determine initially
its own jurisdiction.
2. The second concerns more substantive
principles such as estoppel, acquiescence or
preclusion , good faith or abuse of rights,
the effect of error and an obligation to
make reparation for wrongs
IMPORTANT PRINCIPLES AND CASES
RELATING TO THEIR APPLICATION BY PCIJ
AND ICJ

1. Reparations: Every Violation of an engagement

involves obligation to make reparation The Chorzow Factory
Case PCIJ (1927)
⦿ After the First World War due to a bipartite agreement between
Germany and Poland; Germany agreed to transfer the control of
Upper Silesia area to Poland. On an agreement that Poland
would not forfeit any property of Germany, but thereafter
Poland forfeited two of German Companies situated in that area.
⦿ Question before the court was Whether there was any
international obligation on Poland due to the breach of bipartite
agreement between Germany and Poland?
⦿ Court held that Poland would be liable to repair any loss
suffered by the Germany due to the forfeiture of the two
companies as they violated the international agreement.
⦿ Court adopted the municipal law principle of Restitution and
Damages and held that every violation of an engagement
involves an obligation to make reparation.
2. CIRCUMSTANTIAL EVIDENCE
2. Circumstantial Evidence: The Corfu Chanel Case 1949
ICJ
⦿ The United Kingdom brought the case against Albania,
claiming that Albania was responsible for the mines
present in the Corfu Channel, which was a strait
between Albania and Greece.
⦿ As British warships passed through the Channel in
October, 1946, two ships struck mines and were
damaged. 
⦿  To prove that Albania was aware of the presence of
mines, indirect evidence was relied upon.
⦿ It was concluded by the Court that Albania kept a close
watch on its waters and could observe mine-laying from
the coast. Therefore, there was a violation of
international law by Albania as it failed to warn the
United Kingdom about the presence of mines. 
3.RES-JUDICATA
⦿ Res-Judicata : It is a well-established and
generally recognized principle of law that a
judgment rendered by a judicial body has
binding force between the parties to the
dispute
⦿ In the case of Advisory Opinion on the
effect of awards of compensation made by
the UN Administrative Tribunal ICJ relied
upon the ‘well-established and generally
recognized principle of law that a judgment
rendered by a judicial body has binding force
between the parties to the dispute.
4. ESTOPPEL
⦿ Estoppel :Estoppel in International law means that a state party
to International litigations is bound by its previous acts or
attitude when they are in contradiction with its claim in the
litigation.
⦿ In the Temple of Preah Vihear Case 1962 ICJ reports : ICJ was
asked to rule that Cambodia and not Thailand had Sovereignty
over the Temple of Preah Vihear. In 1904 the boundary between
Cambodia( then a French Protectorate) and Thailand (then Siam)
was determined by a treaty between France and Siam under
which a Map was prepared which placed the Temple in Cambodia
. The Siamese recieved and accepted the map without protest. In
1930 Siamese Prince paid a state visit to the Disputed area
where he was officially received by the French authorities.
⦿ Court with reference to the facts of the case stated that it would
consider in the light of the subsequent course of events that
Thailand is now precluded by her conduct from accepting that
she didnot accept it.
5.PRESCRIPTION
⦿ Prescription: A Claim to a right founded upon
enjoyment of sovereignty over a territory
through continuous and undisputed exercise of
sovereignty over it.
⦿ Island of Palmas Case 1928 2 RIAA
A controversy arose between U.S.A and
Netherlands concerning the sovereignty over
Island Of Palmas , Netherlands Claimed to have
exercised a prolonged and undisputed authority
over the Island .
Arbiter decided the case in favour of the
Netherlands on the basis of unchallenged acts of
peaceful display of sovereignty by Netherlands
spread over a period from 1700 to 1906.
6. EQUITY
⦿ Equity refers to General principles of justice as
distinguished from any particular system of jurisprudence
or the municipal law of any State
⦿ Concept of equity finds a pride of place in jurisprudence
of International Law and in UN documents and General
Assembly resolutions.
⦿ ICJ has increasingly referred to equity in its
pronouncements.
⦿ In the North Sea Continental Shelf Cases the court
rejected Netherlands and Denmark’s contention for the
application of the ‘equidistance’ rule as the only
appropriate principle for delimitation of continental shelf
with the Federal Republic of Germany .
⦿ The court held that it would lead to unreasonable
consequences because of the peculiar coastline of
Germany which is Conclave in nature. It emphasised on
the rule of equity to achieve an equitable result.
⦿ The court is not always confined to drawing of analogies
from municipal law under the rubric of general principles
but sometimes resorts to rules and institutions which are
entirely the creation of municipal law.
⦿ 7. Corporate Personality
⦿ In the case Barcelona Traction Power and Light co.case
ICJ Rep 1970 the court had to decide whether Belgium
could exercise diplomatic protection in respect of its
nationals, who were shareholders in the company,
registered in Canada and operating in Spain, who declared
it bankrupt and took certain other measures injurious to
the company .
⦿ The court applying the municipal law doctrine of
corporate personality held that alleged wrongful acts were
committed against the company and though shareholders
suffered indirectly, Belgium had no cause of action.
⦿ Corporate personality is distinct from shareholders under
municipal law and separation of property rights was an
important manifestation of this corporate personality.
 CRITICISM:
⦿ The normative force behind general principles appears to be of
limited importance for three different reasons:
⦿ Firstly, international courts and tribunals have remained
reluctant in their use and reference to general principles,
⦿ Secondly, general principles as such have limited use as
independent formulations of enforceable obligations and have
rarely been referred to as a basis for a legal claim, and,
⦿ Thirdly, legal scholars have contributed with their criticism to
mark general principles a rather ambiguous source of law.
⦿ There are significant differences in the application of general
principles by the International court and Municipal courts.
Although general principles are referred but till now there is no
majority judgments based upon a general principle of law.
Moreover in international law general principles perform a gap
filling function i.e. the competent court could not be confined
to make judgments in accordance with Customs & conventions
only but it should be designated to give free rein to law-making
activity of courts by applying the general principles of law.
CONTINUED...
⦿ Subject to these important qualifications,
general principles of law accepted by municipal
legal systems are a valuable and available source
of legal principles which can be applied by
international tribunals. They are potentially a
great resource. To modify slightly the metaphor
employed by Waldock, the international judge is
likely to find that the general principles of
national law can be a very useful quarry in
which to go digging.
⦿ In the absence of general principles,
international law would be nothing but the law
of consent and auto-limitation of States.