GENERAL PRINCIPLES OF LAW

(Source of International Law)

• The International Law Commission decided in
2018 to move the topic of ‘general principles of
law’ onto its current programme of work and
appointed as special rapporteur Marcelo Vázquez-
Bermúdez (Ecuador).
• The Commission's work in this regard relates to
the source of law enumerated in Article 38(1)(c) of
the Statute of the International Court of Justice
(ICJ): ‘the general principles of law recognized by
civilized nations’.
 general principles
• Article 38 of the Statute of the Permanent Court of
International Justice lays down that it must apply, in
addition to international conventions and
international custom, the general principles of law
recognized by civilized nations.
• the independence of States within the field of their
political and economic organization is, without a
shadow of doubt, among those general principles,
even though it is not part of customary
international law.
• Provisions of Municipal Law Cannot Prevail
Over Those of the Treaty
 General principles of law comprise those

1That are derived from national legal systems;

2.That may be formed within the international legal
system.
• Article 38(1)(c) to the effect that the
principles in question must be ‘recognized’ to
a requisite degree by States.
 GP
• Mr Murphy (United States) expressed the view
that general principles could emanate from
within the international legal system; but ‘that
category … was a relatively narrow one, and
the Commission should be very cautious in
indicating the circumstances in which such
principles arose’. He added that the existence
of such a second category had been ‘denied by
a number of scholars’
 NTERNATIONAL PRACTICE IS TO THE EFFECT THAT ‘GENERAL PRINCIPLES OF LAW’
EMBRACE GENERAL PRINCIPLES OF INTERNATIONAL LAW

• It is apparent from international practice, both

in the period before and after 1920, that
general principles of international law—or
principles formed within the international
legal system—are part of general principles of
law in the sense of Article 38(1)(c).
 Examples
• In 1931 the Tribunal de commerce de Luxembourg
held in Dortven v Deckers that it was
• a general principle of international law, recognized
through obligations set out in general conventions
of the international community of modern States,
such as Article 10 of the Pact of the League of
Nations, that States must mutually respect one
another's political independence and territorial
integrity.
 res judicata
• The tribunal in Waste Management No
2 observed that the principle of res
judicata was a principle of international law
and that it belonged under the rubric ‘general
principle of law within the meaning of Article
38(1)(c)
• Whilst of course it exists in national legal
systems, res judicata is as a matter of
international law a principle formed within
international law rather than in domestic law.
This is because the principle of res judicata at
the international level has features which
domestic versions of the principle lacks,
although there are of course similarities.
 in foro domestico
• In a domestic court; in a tribunal of the home
jurisdiction, as distinguished from a foreign
court.

•res judicata
•matter that has been adjudicated
by a competent court and
therefore may not be pursued
further by the same parties.
Pious Fund Arbitration between the US and
Mexico
• In the initial dispute brought before the US-Mexican claims commission in 1870
the issue was whether bishops in Upper California (ceded in 1848 to the US after
the US-Mexican war of 1846) were entitled to annual interest payments from a »
Pious Found of the California’s « established in the 17th century. Such claim was
upheld by the decision of an umpire in 1875. Upon payment of this sum in a
accordance with the arbitral decision Mexico considered the US to be satisfied
and refused to continue making annual payments. The US demand for further
payments become the subject of the first arbitration before the permanent
court of Arbitration in The Hague. In its 1902 award the arbitral tribunal held
that the earlier award by the umpire in 1875 constituted res judicata between
the parties in the matter. As a result, Mexico’s obligation to make payments to a
» Pious Found of the California’s « could not be questioned again. The decision
demonstrates a positive and a negative effect of res judicata. Because the
umpire’s decision of 1875 was final and binding(positive effect),it could not be
re-litigated in 1902 (negative effect).
• The ICJ has also repeatedly recognized and applied the
principle of res judicata.
• In the 1960 Arbitral Award case (I.C.J.Reports 1960: para.192)
the world court rejected a challenge to an arbitral award
rendered in 1906 by the king of Spain in a boundary dispute
between Honduras and Nicaraque. Instead, the ICJ considered
the award a res judicata between the parties.
• In the UN administrative tribunal case, which dealt with the
power of the UN general assembly to establish an
administrative tribunal competent to hear staff disputes, the
ICJ referred to res judicata as a well established and generally
recognized principle of law