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C The Author(s) 2021. Published by Oxford University Press.
V
This is an Open Access article distributed under the terms of the Creative Commons Attribution
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doi:10.1093/chinesejil/jmab019
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What We Talk about When
We Talk about General
Principles of Law
Xuan Shao *
Abstract
In the current debate on general principles of law, major controversies
revolve around the “two-category” approach to this source and its
relationship with the other sources. Seeking to disentangle these con-
troversies in light of the rationale behind this source, this paper argues
that the formation and identification of general principles are driven
by the need for international law to be a coherent legal system; and ac-
cordingly, general principles of both categories embody the “implied
consent” of States in light of the requirements and conditions of inter-
national law. Based on the characters of general principles flowing
from this “implied consent”, which distinguishes them from treaties
and custom, this article argues that the danger of general principles
serving as an easier route for creating obligations for States is
overrated; and despite the residual position of general principles under
the lex specialis principle, they may complement, sometimes in crucial
ways, the other sources and harden into them over time.
I. Introduction
1. General principles of law are undoubtedly the most controversial, if not
mysterious, source among the three sources of international law as listed in
Article 38(1) of the Statute of the International Court of Justice (ICJ) and
* DPhil candidate at the Faculty of Law, University of Oxford. Email: xuan.shao@
queens.ox.ac.uk. This author has been assisting the ILC Special Rapporteur with
the work on general principles of law. All the opinions expressed in this article
are those of the author herself. The paper was completed on 13 July 2021, and the
websites cited herein are current as of this date unless otherwise noted.
.................................................................................................................................................................
Cite this paper by paragraph numbers in this form: Author, Title, 20 Chinese JIL (2021), para.__Chinese JIL (2021)
Article 38 of the Statute of the Permanent Court of International Justice
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(PCIJ). There has never been anything approaching a consensus over the na-
ture, scope, and function of general principles since the conclusion of the
PCIJ Statute, yet no one can deny the substantive role they have played
throughout history and in contemporary international law. Historically, gen-
eral principles of law have been constructive in resolving both procedural and
substantive issues when conventional and customary rules were relatively un-
derdeveloped.1 In recent years, the emergence of new international legal
regimes such as international criminal law, international human rights law,
and international environmental law has revived the relevance of this source.2
General principles of law have been a battlefield of different schools of
thoughts in international law.3 Yet, the manner in which the ICJ and the
PCIJ have used this source does not allow one to draw firm conclusions on it,
as proponents of different theories can almost always find some judgments to
support their contentions. The recent work by the International Law
Commission (ILC) brings about an opportunity to clear some of the contro-
versies surrounding this source.4 But as of today, different understandings of
this source persist, as revealed from the comments on the reports by the
Special Rapporteur.
2. Major controversies on the first report, and potentially the second one,
centre on the “two-category” approach taken by the Special Rapporteur,
1 See Bin Cheng, General Principles of Law as Applied by International Courts and
Tribunals (1953); Hersch Lauterpacht, Private Law Sources and Analogies of
International Law (1927).
2 Fabián Raimondo, General Principles of Law in the Decisions of International
Criminal Courts and Tribunals (2008); Jaye Ellis, General Principles and
Comparative Law, 22 EJIL (2011), 949, 951-952; M Cherif Bassiouni, A
Functional Approach to “General Principles of International Law”, 11 Michigan JIL
(1990), 768; Bruno Simma and Philip Alston, The Sources of Human Rights Law:
Custom, Jus Cogens, and General Principles, 12 Australian YIL (1989), 82.
3 See Vladimir Degan, General Principles of Law (A Source of General International
Law), 3 Finnish YIL (1992), 1; Ulf Linderfalk, General Principles as Principles of
International Legal Pragmatics: The Relevance of Good Faith for the Application of
Treaty Law, in: Mads Andenas, Malgosia Fitzmaurice, Attila Tanzi, and Jan
Wouters (eds.), General Principles and the Coherence of International Law (2019),
101.
4 2017 Recommendation of the Working Group on the Long-Term Programme of
Work, Syllabus on General Principles of Law, A/72/10; Marcelo Vázquez-
Bermúdez, First Report on General Principles of Law, A/CN.4/732 (“First
Report”); Marcelo Vázquez-Bermúdez, Second Report on General Principles of
Law, A/CN.4/741 (“Second Report”).Shao, What We Talk about When We Talk about General Principles of Law
following which general principles of law encompass those “derived from
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national legal systems” and those “formed within the international legal sys-
tem”.5 Whereas most members and States agree that general principles of law
include those derived from national legal systems, disagreements focus on the
second category. It has been cautioned that general principles of the second
category are difficult to be distinguished from norms of the other two sources,
customary international law in particular, and to recognize these principles as
a separate source of law risks offering an easier route for establishing norms of
international law.6 Related to that point, some observed that the contours of
the second category are hard to delineate, which may open the door to exces-
sive discretion of adjudicators.7 Several members and States maintained that
“general principles” of the second category should belong to Article 38(1)(b)
instead of Article 38(1)(c).8 The underlying reason for this proposition is that
the criteria for identifying sources of international law should be strict and
general principles of law should not be a shortcut to identifying norms of in-
ternational law, a position with which the Special Rapporteur also agrees.9
In short, there are two main issues around which a consensus has begun to co-
alesce but has yet to be fully achieved: first, the scope of general principles of
law; second, the relationship between general principles of law and the other
two main sources.
3. At a broader level, the debate at the ILC generally mirrors the scholarly
discussions on this source, which displayed a fixation on the “categories”
of general principles10 and their “functions” in the international legal
5 First Report, ibid., 56-73; Second Report, ibid., Draft Conclusion 3.
6 See e.g. Statement of Mr. Tladi, A/CN.4/SR.3489, 4-5; Statement of Mr. Wood,
A/CN.4/SR.3490, 5; See also Statement of China, A/C.6/74/SR.27, 16, para.96;
Statement of Mr. Rajput, A/CN.4/ SR.3490, 17.
7 Statement of Mr. Murphy, A/CN.4/SR.3490, 15.
8 Statement of Czech Republic, 74th Session of the General Assembly, Report of the
International Law Commission, Cluster III, 5; Statement of Iran, 74th Session of
the General Assembly, Report of the International Law Commission, Cluster III, 2;
Statement of Mr. Rajput, A/CN.4/ SR.3490; Statement of Mr. Murase, A/CN.4/
SR.3490.
9 Second Report, n.4 above, para.15.
10 Different categories of general principles have been advanced in the literature. See
e.g. Oscar Schachter, International Law in Theory and Practice (1991), 50;
Wolfgang Friedmann, The Uses of “General Principles” in the Development of
International Law, 57 AJIL (1963), 279; Hermann Mosler, General Principles of
Law, in: R. Bernhardt (ed.), 2 Encyclopedia of Public International Law (1995),
513–515.Chinese JIL (2021)
system.11 To a certain degree, this seems to be incongruent with the discourse
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on treaties and customary international law. First, each of treaties and custom-
ary international law has its own unified rules on formation and identification,
which justifies listing them as distinct sources in Article 38(1) of the ICJ
Statute. This seems natural since, after all, a formal source should be defined
by the process whereby legal norms emerge and acquire legal force.12
However, according to the mainstream view, different “categories” of general
principles follow distinct rules on their identification.13 It thus begs the ques-
tion of what unites them under the same heading of “the general principles of
law recognized by civilized nations”. Second, for treaties and customary inter-
national law, their “functions” depend on the content of the particular norm,
which has little to do with the form in which they emerge. This stands in con-
trast to the discussions on general principles of law, which devote a lot of en-
ergy to their “functions”.14 Furthermore, the debate on general principles
seems to aim at a moving target: people disagreeing on their functions may
disagree on their scope and criteria for identification in the first place; and the
disagreement on their scope and criteria for identification can be attributed to
the divergent views on the rationale behind this source and its role in the in-
ternational legal system. Indeed, the scope, characters, and functions of gen-
eral principles of law and their relationship with treaties and customary
international law closely interlock with each other. It is thus difficult to under-
stand these elements of general principles independently of each other.
4. Against this background, this article seeks to give an overarching account
of this source, with a view to bringing greater clarity to questions surrounding
the “two-category” approach and the relationship between this source and
11 See Linderfalk, n.3 above, 100-101; Marrti Koskenniemi, General Principles:
Reflections on Constructivist Thinking in International Law, in: Marrti
Koskenniemi (ed.), Sources of International Law (2000), 359; Robert Kolb,
Principles as Sources of International Law (With Special Reference to Good Faith),
53 Netherlands ILR (2006), 1, 29-36; Giorgio Gaja, General Principles of Law, in:
Rudiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law
(2012), 374 Bassiouni, n.2 above, 768.
12 See Malcolm N. Evans, International Law (2017), 52; Gerald Fitzmaurice, Some
Problems Regarding the Formal Sources of International Law’, in: F.M. van Asbeck
et al. (eds.), Symbolae Verzijl (1958), 153-154.
13 This is both the mainstream view in the literature and the position adopted by the
Special Rapporteur. See First Report, n.4 above, paras.29-33; Second Report, n.4
above, para.14.
14 See Linderfalk, n.3 above, 100-101; Marrti Koskenniemi, n.11 above, 359; Kolb,
n.11 above, 29-36; Gaja, n.11 above, 374; Bassiouni, n.2 above, 768.Shao, What We Talk about When We Talk about General Principles of Law
treaties and customary international law. A central thread of this article is that
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general principles of law are a source whose formation and identification are
primarily driven by the requirements for international law to be a coherent le-
gal system. This sets general principles apart from treaties and customary in-
ternational law, as general principles of law are primarily need-driven instead
of consent-driven. The criteria for identifying general principles, their scope
and characters, and their relationship with treaties and customary interna-
tional law should be understood in this light. After discussing the genesis of
general principles of law in section II, section III explains the rationale behind
the requirement of “recognized by civilized nations” that unites general princi-
ples of both categories. In particular, it argues that general principles of both
categories represent the “implied consent” of States in view of the require-
ments and conditions of the international legal system, and the domestic and
international materials relied on when identifying general principles ensure
that this source is objectively identifiable and representative of the world com-
munity. As explained in sections IV and V, the characters of general principles
stemming from this “implied consent” affect the way they operate and their
relationship with the other two sources. Section IV tackles the challenge re-
garding general principles formed within the international legal system, point-
ing out that the danger of rendering this source an easier route to create
obligations for States, as emphasized by those who are against this category, is
overrated. Section V addresses the relationship between general principles of
law and the other two sources, arguing that being a residual source, general
principles of law may still serve as an interpretative aid or play a complemen-
tary role in relation to relevant treaty or customary rules, and general princi-
ples may harden into treaty or customary rules.
II. The genesis of general principles of law
5. In contemporary international law, the tendency of emphasizing State con-
sent and rejecting moral criteria often leave general principles of law on the
sidelines of the discourse, because whereas conventional and customary rules
are generally regarded as stemming directly from the will of States, general
principles are almost always only “found” by lawyers and adjudicators.15
However, as explained in this section, the inclusion of general principles of
law as a source of international law is precisely to remedy the limits of strictly
15 See Robert Kolb, Theory of International Law (2016), 135.Chinese JIL (2021)
consensual rules and to allow international law to be a coherent system.
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Different from conventional and customary international law, the scope and
criteria for identification of general principles of law ultimately are driven by
the systemic needs of international law.
6. In international law, the notion of State sovereignty is naturally hostile to
the possibility of imposing the will of some States, even a majority of States,
on other States; and the heterogeneity in the international community
demands that international law should be ideologically neutral.16 Hence the
prevalence of voluntarist and positivist approaches to international law. The
position that international law must be based on State consent has been firmly
adopted by the PCIJ in Lotus:
The rules of law binding upon States [. . .] emanate from their own free
will expressed in conventions or by usages generally accepted as express-
ing principles of law and established in order to regulate the relations be-
tween these co-existing independent communities or with a view to the
achievement of common aims. Restrictions upon the independence of
States cannot therefore be presumed.17
7. And the ICJ has decidedly rejected the naturalist school of thought when
it considered itself as “a court of law, and can take account of moral principles
only in so far as these are given a sufficient expression in legal form”.18
8. If direct and definite consent of States is needed in the formation of every
rule, in the form of conventional or customary international law, then interna-
tional law can be correctly defined as “the aggregate of the legal norms govern-
ing international relations” stemming from the will of States.19 However, it is
doubtful that such an “aggregate of legal norms” can constitute a coherent
and self-sufficient legal system, if it can be characterized as a legal system at
all. First, these consensual norms cannot explain the legal authority of them-
selves. In other words, the Hartian rule of recognition is absent, and to argue
16 Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL
(1983), 421-422; Liam Murphy, Law Beyond the State: Some Philosophical
Questions, 28 EJIL (2017), 203, 206.
17 S.S. “Lotus” (France v. Turkey), PCIJ Series A/No 10, Judgment of 7 September
1927, 18.
18 South West Africa (Liberia v. South Africa) (Ethiopia v. South Africa), Judgment of
18 July 1966, ICJ Reports 1966, 6, 34.
19 Paul Guggenheim, Traité de droit international public, (1967), cited in: Weil, n.16
above, 413.Shao, What We Talk about When We Talk about General Principles of Law
that consent is the basis for the rule that rules must be based on consent is to
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argue in a circle.20 Furthermore, the aggregate of norms that States have con-
sented to would necessarily not only be “silent on many matters, but also scat-
tered into a mass of detailed rules and precedents which no common link
would unite.”21 For instance, the law would be particularly laconic when a le-
gal regime just begins to develop, yet cases may arise calling for a legal an-
swer;22 and when discrete rules come into conflict with one another, it is
likely that international law does not have ready-made rules based on direct
State consent to resolve such conflicts.
9. At a broader level, strictly consensual rules would inevitably lack the ca-
pacity to deal with situations unforeseeable at the time when consent is given.
Problems like this are not unique to international law, they exist in domestic
law as well. Indeed, this reflects a tension inherent to the notion of the rule of
law. On the one hand, the rule of law requires that law must be prospective,
transparent and general, to be capable of guiding the behaviour of rational
subjects.23 On the other hand, such prospective and general rules have their
limits in certain cases. The legislature is incapable of anticipating all possible
scenarios to which the law is to be applied. Thus, there might be a lack of
rules governing certain situations, or, in certain circumstances, strict applica-
tion of the rule might defeat its intended purpose.24 In international law, the
lack of a centralized constitutional structure with a judiciary having compul-
sory jurisdiction only aggravates such problems, which are sometimes called
“gaps” in law.
10. To fill such “gaps”, some domestic legal systems authorize the judiciary
to exercise legislative power or to apply principles akin to moral standards. In
20 See HLA Hart, Joseph Raz, and Penelope A. Bulloch, 3 The Concept of Law
(2012), 94-99; Fitzmaurice, n.12 above, 163; Olufemi Elias and Chin Lim,
“General principles of law”, “soft” law and the identification of international law, 28
Netherlands YIL (2009), 3; Mehrdad Payandeh, The Concept of International Law
in the Jurisprudence of H.L.A. Hart, 21 EJIL (2011), 967, 975-7.
21 Alfred Verdross, Les principles generaux du droit applicable aux rapports internatio-
naux, 45 RGDIP (1938), 44, 52, cited in: Kolb, n.15 above, 137.
22 See Raimondo, n.2 above; Gerhard Ullrich, The Law of the International Civil
Service: Institutional Law and Practice in International Organisations (2009).
23 Joseph Raz, The Authority of Law: Essays on Law and Morality (1979), 213-4; Lon
L. Fuller, The Morality of Law (1969), 39.
24 Lawrence B. Solum, Virtue Jurisprudence: Towards an Aretaic Theory of Law, in:
Liesbeth Huppes-Cluysenaer, Nuno M.M.S. Coelho (eds.), Aristotle and the
Philosophy of Law: Theory, Practice and Justice (2013), 24.Chinese JIL (2021)
some civil law systems, in the absence of provisions capable of yielding a clear
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answer, judges are authorized by the civil code to apply principles of natural
law and equity,25 general principles of the legal system of the State,26 or “in
accordance with the rule that it would make as legislator”.27 In common law
systems, rules of equity constitute a distinctive body of law. In his Separate
Opinion in Barcelona Traction, Judge Fitzmaurice quoted Snell’s Principles of
Equity in English law:
Equity is that body of rules or principles which form[s] an appendage or
gloss to the general rules of law. It represents the attempt . . . of the . . .
legal system to meet a problem which confronts all legal systems reaching
a certain stage of development. To ensure the smooth running of society
it is necessary to formulate general, rules which work well enough in the
majority of cases. Sooner or later, however, cases arise in which, in some
unforeseen set of facts the general rules produce substantial unfairness.
25 The General Civil Code of Austria, Article 7 (“If a case can be decided neither from
the language nor from the natural sense of a law, similar situations which are deter-
mined by reference to the laws and the purpose of related provisions must be taken
into consideration. Should the case still remain doubtful, then it must be decided
upon the carefully collected and well-considered circumstances in accordance with
the natural principles of justice.”) (translated by Paul L. Baeck); Colombian Civil
Code, Law 57 of 1887, Article 32 (“In cases where the previous rules of interpreta-
tion cannot be applied, obscure or contradictory provisions shall be interpreted in
light of the general spirit of the law and natural equity.”) (translated by the author);
The Libyan Civil Code, Article 1(2) (“In the absence of applicable legal provisions,
the Judge shall pass judgment in accordance with the principles of Islamic law. In
the absence of Islamic legal precedent, he shall pass judgment according to prevailing
custom, and in the absence of precedents in customary procedure, he shall pass judg-
ment according to the principles of natural law and the rules of equity.”) (translated
by Meredith O. Ansell and Ibrahim Massaud al-Arif).
26 Italian Civil Code, Archive of Collected Documents (1997-1999), Article 12 (“In
applying the law, the words should be given their proper meaning in their context in
light of the intention of the legislator. If a dispute cannot be decided by a specific
provision, reference should be made to the provisions governing similar cases or sim-
ilar matters; if the case still remains doubtful, it should be decided according to the
general principles of the legal system of the State.”) (translated by the author); The
Argentine Civil Code of January 1st 1871 together with Constitution and Law of
Civil Registry, Article 16 (“If a civil question cannot be decided, either by the words
or the spirit of the law, the principles of analogous laws shall be followed, and if the
question should still remain doubtful, it shall be settled according to the general
principles of law, taking into consideration the circumstances of the case.”) (trans-
lated by Frank L. Joannini).
27 The Swiss Civil Code of 10 December 1907 (Status as of 1 January 2021), Article
1(2).Shao, What We Talk about When We Talk about General Principles of Law
When this occurs, justice requires either an amendment of the rule or, if
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. . . the rule is not freely changeable, a further rule or body of rules to
mitigate the severity of the rules of law.28
11. For Judge Fitzmaurice, there is a need in international law “of a body of
rules or principles which can play the same sort of part internationally as the
English system of Equity does”.29
12. A similar idea has been expressed by the Tribunal in Eastern Extension,
Australasia and China Telegraph Company,
International law, as well as domestic law, may not contain, and gener-
ally does not contain, express rules decisive of particular cases; but the
function of jurisprudence is to resolve the conflict of opposing rights and
interests by applying, in default of any specific provision of law, the corol-
laries of general principles, and so to find—exactly as in the mathematical
sciences—the solution of the problem.30
13. In other words, such “general principles” are essential to addressing
the limits of rules stemming directly from the will of the legislature, i.e.
States. They serve a function similar to that of equity or “judicial legis-
lation” in domestic legal systems. Yet it is the character and criteria for
identification of these general principles that have puzzled international
lawyers for several decades.
14. Different from domestic legal systems, in international law, the notion
of sovereign equality is supreme, and the power of international adjudicators
is much more limited than that of their domestic counterpart. Perhaps in-
spired by the use of equity in domestic legal systems, in the preparation of the
PCIJ Statute, States have made proposals such as “general principles of law
and equity”,31 “justice and equity”,32 “[the Court] shall enter judgment
28 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New
Application: 1962), Judgment of 5 February 1970, ICJ Reports 1970, 85-6 (sep.
op. Fitzmaurice).
29 Ibid., 85.
30 Eastern Extension, Australasia and China Telegraph Company, Ltd. (Great Britain)
v. United States, Decision of 9 November 1923, RIAA, vol. VI, 112, 114 (emphasis
added).
31 Permanent Court of International Justice, Advisory Committee of Jurists,
Documents Presented to the Committee Relating to Existing Plans for the
Establishment of a Permanent Court of International Justice, 129 (Germany).
32 Ibid., 267 (Switzerland).Chinese JIL (2021)
according to its own opinion of what the rule of international law on the sub-
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ject should be”.33 And “the rules of international law as recognized by the
legal conscience of civilised nations”34 was also proposed. However, these pro-
posals were all rejected due to the overly broad discretion they would give to
the Court.35 During the debate at the Advisory Committee of Jurists, Elihu
Root emphasized that the applicable law of the Court should be limited to
“rules contained in Conventions and positive international law”.36 Similarly,
Phillimore stressed that the Court should not be given a legislative power.37
These views are consistent with the dominant positivist approach to interna-
tional law, and found support among members of the Committee.
15. The diversity in the world community was another reason for rejecting
the aforementioned formulations. According to Root, “the world was pre-
pared to accept the compulsory jurisdiction of a Court which applied the uni-
versally recognized rules of International Law. But [it was not] disposed to
accept the compulsory jurisdiction of a Court which would apply principles,
differently understood in different countries.”38 The drafters of the PCIJ
Statute thus bore in mind the importance that principles of international law
must be representative of the diverse cultures and civilizations of the world
community.
16. In this context, in order to remedy the “gaps” in law, which may be
translated into non liquet in judicial contexts, the formulation “general princi-
ples of law recognized by civilized nations” was adopted as a compromised so-
lution. The compromise was between the requirements for international law
to be a self-sufficient, coherent legal system, on the one hand, and the need to
ensure that international law is objectively identifiable and representative of
the pluralistic international community, on the other. As will be explained
further in the next section, this compromise is achieved through the require-
ment of “implied consent” of States embodied in the terms “recognized by
civilized nations”, which unites the general principles of both categories.
17. Nowadays, international law can be regarded as a “complete system” in
the sense that “every international legal situation is capable of being
33 Ibid., 301 (Denmark, the Netherlands, Norway, Sweden and Switzerland).
34 Procès-verbaux of the Proceedings of the Committee, June 16th – July 24th, 13th
meeting, 293.
35 See ibid., 293-4.
36 Ibid., 294.
37 Ibid., 295.
38 Ibid., 14th meeting, 307.Shao, What We Talk about When We Talk about General Principles of Law
determined as a matter of law”, and international adjudicators are capable of
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avoiding declaring non liquet.39 And the ILC Study Group on Fragmentation
of International Law was able to confidently declare that:
International law is a legal system. Its rules and principles (i.e. its norms)
act in relation to and should be interpreted against the background of
other rules and principles. As a legal system, international law is not a
random collection of such norms. There are meaningful relationships be-
tween them.40
18. This would not have been possible without general principles of law be-
ing a source of international law, although this source is often on the sidelines
of the contemporary discourse on international law.
19. There are two take-aways from the above discussion. First, general prin-
ciples of law were included as a source of international law in order to allow
international law to be a coherent legal system instead of a mere “aggregate of
legal norms” that States have directly consented to. Accordingly, the nature,
scope and criteria for identification of general principles of law are ultimately
driven by the systemic needs of international law. Second, due to the struc-
tural difference between international law and domestic legal systems, general
principles are distinguished from equity or an authorization of judicial law-
making as existing in some domestic legal systems. In international law, this
source needs to be based on objective facts and representative of the world
community. In other words, the formulation of “the general principles of law
recognized by civilized nations” not only allows a certain measure of flexibility
vis-à-vis State consent but, perhaps more importantly, it restrains the discre-
tion of adjudicators.
III. “Recognition by civilized nations” and implied consent
20. As explained above, one important feature distinguishing general princi-
ples of law from the other two main sources is that the characters and identifi-
cation of general principles of law are driven by the needs for international
law to be a coherent legal system. This source serves a function similar to
39 Robert Jennings and Arthur Watts, 1 Oppenheim’s International Law: Peace
(2008), 13-14 (footnotes omitted).
40 ILC Conclusions of the Work of the Study Group on the Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of
International Law (2006), A/61/10, para.251.Chinese JIL (2021)
equity or judicial law-making in filling the gaps in domestic legal systems. But
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different from domestic legal systems, in international law, there is neither a
centralized legislature nor a centralized judiciary to formulate these general
principles in a systemic manner. In practice, the identification of general prin-
ciples is usually conducted on a case-by-case basis, tailored to a particular
problem, and is guided by the conditions and requirements of the interna-
tional legal system. For instance, the presence of a principle common to do-
mestic legal systems does not in itself generate a ready-made general principle
applicable at the international level in the abstract. Instead, general principle
in foro domestico can only be “discovered” in light of a particular legal problem
at the international level. This confirms the fact that the formation and identi-
fication of general principles of law are primarily needs-driven instead of
consent-driven. As to be discussed in this section, the identification of general
principles of law essentially requires those charged with this task to determine
“what States may have intended if they are faced with this problem” based on
domestic or international legal materials. This requirement of “implied con-
sent”, which is embodied in the terms “recognized by civilized nations”, uni-
tes general principles of both categories.
21. There seems to be a greater agreement on general principles derived
from domestic laws.41 It is therefore more convenient to start with this cate-
gory. For these general principles, as observed by the Special Rapporteur and
widely in the literature, the requirement of “recognition by civilized nations”
is met by virtue of the presence of a principle in the principal legal systems of
the world and the suitability of that principle for the application in the inter-
national legal system.42 The required objectivity and representativeness of
such principles, which preoccupied the drafters of the PCIJ Statute, are
41 See First Report, n.4 above, 56; Alain Pellet and Daniel Müller, Article 38, in:
Christian J. Tams, Andreas Zimmermann, Karin Oellers-Frahm, Christian
Tomuschat (eds.), The Statute of the International Court of Justice: A Commentary
(2019), 924; Catherine Redgwell, General Principles of International Law, in:
Stefan Vogenauer, Stephen Weatherill (eds.), General Principles of Law: European
and Comparative Perspectives (2017), 5-19; Sienho Yee, Article 38 of the ICJ
Statute and Applicable Law: Selected Issues in Recent Cases, 7 Journal of
International Dispute Settlement (2016), 487; Johan G. Lammers, General
Principles of Law Recognized by Civilized Nations, in: F. Kalshoven et al. (eds.),
Essays on the Development of the International Legal Order, in Memory of Haro
F. van Panhuys (1980), 59-66.
42 Second Report, n.4 above, draft conclusion 4; Pellet and Müller, ibid., 925; Paolo
Palchetti, The role of general principles in promoting the development of customary
international rules, in: Malgosia Fitzmaurice Mads Andenas, Attila Tanzi, JanShao, What We Talk about When We Talk about General Principles of Law
achieved by a comparative survey of domestic laws of the world, which
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ensures that the principle is representative of different legal families and
regions of the world.43 It is widely acknowledged the discriminatory distinc-
tion between “civilized nations” and “uncivilized nations” as implied in the
language of Article 38(1)(c) of the ICJ Statute is anachronistic and should be
avoided.44 Several States have also emphasized this point.45 Accordingly,
Article 38(1)(c) of the ICJ Statute must be interpreted as “attributing to it a
universal scope involving no discrimination between the members of a single
community based upon sovereign equality”.46 As revealed in practice, there is
a shared understanding that the comparative study involved in identifying
general principles of law needs to cover not only different legal traditions or le-
gal families (e.g. civil law and common law), but also legal systems in different
continents and embedded in different cultures.47
Wouters (eds.), General Principles and the Coherence of International Law
(2019), 48.
43 See above, text to fn.36-38.
44 North Sea Continental Shelf (Federal Republic of Germany Netherlands) (Federal
Republic of Germany/Denmark), Judgment of 20 February 1969, ICJ Reports
1969, 134 (sep. op. Ammoun); Sienho Yee, We Are All “Civilized Nations”:
Arguments for Cleaning up Article 38(1)(c) of the Statute of the International
Court of Justice, in: Sienho Yee, Towards an International Law of Co-
progressiveness, Part II: Membership, Leadership and Responsibility (2014), 21-35.
45 See e.g. Review of the Role of the International Court of Justice, Report of the
Secretary-General (15 September 1971), A/8382, 23-5, (Guatemala and Mexico);
See also the statements of States at the 74th session of General Assembly Sixth
Committee in 2019: Croatia, Cuba, India, Iran, Ireland, Micronesia, Philippines,
Portugal, Norway on behalf of the Nordic countries, Sierra Leone, the United
Kingdom.
46 North Sea Continental Shelf, n.44 above, 134 (sep. op. Ammoun).
47 See e.g. Right of Passage over Indian Territory (Portugal v. India), Reply of the
Government of the Portuguese Republic (VII 58), 543 (Portugal surveyed legal sys-
tems of 64 States, including civil law systems, common law systems, Islamic law,
Scandinavian law, Asian law, and others); Certain Property (Liechtenstein v.
Germany), Memorial of the Principality of Liechtenstein (28 March 2002) footnote
148 (Liechtenstein consulted 48 legal systems, including common law and civil law
systems, as well as legal systems in different regions including Europe, North
America, Latin America, Asia-Pacific, Middle East and Africa); Prosecutor v.
Erdemovic, Appeals Chamber Judgment, IT-96-22-A, Joint Separate Opinion of
Judge McNonald and Judge Vohrah (7 Oct 1997), paras.59-72 (The majority of
the Appeals Chamber consulted civil law systems, common law systems, and other
systems, and these legal systems were from different regions of the world); North
Sea Continental Shelf, n.44 above, 139-40 (sep. op. Ammoun) (he considered legalChinese JIL (2021)
22. But the comparative law analysis cannot be conducted in the abstract.
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It must target a particular international problem and be guided by the struc-
ture and conditions of international law. The process of transposing general
principles to the international level has been famously described by Judge
McNair as “to regard any features or terminology which are reminiscent of
the rules and institutions of private law as an indication of policy and princi-
ples rather than as directly importing these rules and institutions [to the inter-
national level].”48 Based on a survey of State practice and case law, the Special
Rapporteur has concluded that the test for transposition is that the principle
at issue needs to be “compatible with fundamental principles of international
law” and that “the conditions exist for its adequate application in the interna-
tional legal system”.49 In some cases, tribunals have adapted domestic legal
principles for international application.50
23. In light of the process discussed above, general principles of law derived
from domestic laws can be distinguished from customary international law.
Although domestic law may also contribute to the formation and identifica-
tion of customary international law, the requirement of “recognized by civi-
lized nations” is different from opinio juris for the identification of customary
international law. Opinio juris refers to the conviction of States that they are
bound by certain legal obligations or entitled to certain rights under interna-
tional law.51 But when “recognizing” a principle in domestic law, a State may
not be aware of its implications at the international level, and thus cannot be
understood as giving its consent to binding rules in international law in a strict
sense. In other words, “recognition” for the purposes of identifying general
principles of law can only be understood as a sort of “implied consent”, and
systems of Western Europe and of Latin American, common law, Muslim law,
Chinese law, Soviet law, Hindu law, and the law of other Asian and African States).
48 International Status of South West Africa, Advisory Opinion of 11 July 1950, ICJ
Reports 1950, 148 (sep. op. McNair).
49 Second Report, n.4 above, draft conclusion 6.
50 See e.g. Prosecutor v. Dusko Tadic a/k/a “DULE”, Appeals Chamber Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), IT-
94-1-A, paras.41-45; Prosecutor v. Zejnil Delalic et al., Trial Chamber Judgment
(16 November 1998), IT-96-21-T, paras.403-405; Argentina-Chile Frontier Case,
Award (9 December 1966), UNRIAA, vol. XVI, 164; Chagos Marine Protected
Area Arbitration (Mauritius v. United Kingdom), PCA Case No. 2011-03, Award
(18 March 2015), para.436.
51 ILC Draft Conclusions on identification of customary international law, with com-
mentaries (2018), A/73/10, 138-9.Shao, What We Talk about When We Talk about General Principles of Law
the content of what has been “recognized” by States needs to be construed
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through legal reasoning in light of the requirements and conditions of interna-
tional law. In essence, the “recognition” requires one to determine what States
may have intended in light of their domestic laws and the needs of the inter-
national legal system.
24. General principles formed within the international legal system are
more controversial. According to the Special Rapporteur, the required
“recognition” can be achieved where a principle “is widely recognized in trea-
ties and other international instruments”, “underlies general rules of conven-
tional or customary international law”, or “is inherent in the basic features
and fundamental requirements of the international legal system”.52 While the
propriety of the particular formulations can be subject to contestation, a sub-
stantive commonality of these general principles is that they are deduced from
international legal materials or the structure of the international legal system,
to answer questions that cannot be resolved by treaty or customary rules. As
explained below, these principles are similar to general principles derived from
national legal systems in that they are also based on the “implied consent” of
States and their content is determined by asking “what States may have
intended”. Similar to general principles of the first category, if not more evi-
dently so, the identification of these general principles is animated by the sys-
temic needs of international law. Given the controversies surrounding this
category, it is worth spending more words on it.
25. A prime example for general principles of the second category is the
Nürnberg principles. In the Judgment of the Nürnberg trial, the Tribunal, in
order to prove that the criminalization of the defendants was not in violation
of the principle of nullum crimen sine lege, nulla poena sine lege, emphasized
that the Charter establishing the Tribunal was an “expression of international
law existing at the time of its creation”.53 In support of this proposition, the
Tribunal observed that:
The law of war is to be found not only in treaties, but in the customs
and practices of states which gradually obtained universal recognition,
and from the general principles of justice applied by jurists and practised
by military courts. This law is not static, but by continual adaptation
52 Second Report, n.4 above, draft conclusion 7.
53 Judgment of the International Military Tribunal, Official Documents of Trial of the
Major War Crimes before the International Military Tribunal (Nuremberg, 14
November 1945 – 1 October 1946), vol. 1, 218.Chinese JIL (2021)
follows the needs of a changing world. Indeed, in many cases treaties do
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no more than express and define for more accurate reference the princi-
ples of law already existing.54
26. Accordingly, to prove that aggressive war can constitute an international
crime absent an express conventional or customary rule to this effect, the
Tribunal resorted to provisions in international instruments, including the
Kellogg-Briand Pact,55 the Hague Convention of 1907,56 the practice of mili-
tary tribunals,57 the draft of a Treaty of Mutual Assistance submitted by 29
States,58 the preamble of the unratified League of Nations Protocol for the
Pacific Settlement of International Disputes,59 and the declaration of 24
September 1927 unanimously adopted at the meeting of the Assembly of the
League of Nations,60 the unanimous resolution of 18 February 1928 of 21
American republics at the Sixth Pan-American Conference,61 and provisions
in the Treaty of Versailles.62 In particular, the Tribunal drew attention to pre-
ambular expressions such as “aggressive war constitutes a violation of this
54 Ibid., 221.
55 Mentioning that “[signatories are d]eeply sensible of their solemn duty to promote
the welfare of mankind; persuaded that the time has come when a frank renuncia-
tion of war as an instrument of national policy should be made to the end that the
peaceful and friendly relations now existing between their peoples should perpetu-
ated [. . .]” Ibid., 219-20.
56 Ibid., 220.
57 Ibid., 221.
58 Article I of the Treaty declares that “aggressive war is an international crime”. Ibid.
59 It states that “recognising the solidarity of the members of the international
community” and that “a war of aggression constitutes a violation of this solidarity
and is an international crime”. According to the Tribunal, “[a]lthough the Protocol
was never ratified, it was signed by the leading statesmen of the world, representing
the vast majority of the civilized states and peoples, and may be regarded as strong
evidence of the intention to brand aggressive war as an international crime.” Ibid.
60 It states that “[b]eing convinced that a war of aggression can never serve as a means
of settling international disputes, and is in consequence an international crime.”
Ibid., 222.
61 It states that “war of aggression constitutes an international crime against the human
species.” Ibid.
62 Article 227 provides for a special tribunal to try the former German Emperor “for a
supreme offense against international morality and the sanctity of treaties”, which is
intended to “vindicate the solemn obligations of international undertakings, and the
validity of international morality.” Article 228 establishes the right of the Allied
Powers “to bring before military tribunals persons accused of having committed acts
in violation of the laws and customs of war.” Ibid.Shao, What We Talk about When We Talk about General Principles of Law
solidarity [of members of the international community] and is an interna-
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tional crime”, and that it constitutes “a supreme offense against international
morality and the sanctity of treaties”. Based on these materials, the Tribunal
decided that “resort to a war of aggression is not merely illegal, but is criminal”
under international law when the relevant acts by the Nazis occurred.63
27. In this judgment, as expressly acknowledged by the Tribunal, such gen-
eral principles were identified to meet “the needs of a changing world”; and to
differentiate these principles from arbitrary exercise of power by the victorious
States, the Tribunal derived these principles from various international instru-
ments. At a fundamental level, such a process is not essentially different from
that in the identification of general principles of the first category, which
derives “implied consent” of States to meet the needs of the international legal
system. The international or domestic legal materials based on which this
“implied consent” is derived help to guarantee the objectivity and representa-
tiveness of these principles.
28. Another similar example is the uti possidetis principle as applied in
Frontier Dispute between Burkina Faso and Mali. In that case, one problem
faced by the Chamber of the ICJ was the applicability of the uti possidetis prin-
ciple to the frontier between the two States despite the fact that these two
States achieved independence in 1960 but the Organization of African Unity
resolution, the Special Agreement, and its Charter affirmed the principle uti
possidetis only in 1964. Therefore, the legal effects of these instruments cannot
apply retroactively by the Chamber to resolve the dispute. It is against this
background that the Chamber stated that uti possidetis
is a general principle, which is logically connected with the phenomenon
of the obtaining of independence, wherever it occurs. Its obvious pur-
pose is to prevent the independence and stability of new States being en-
dangered by fratricidal struggles provoked by the challenging of frontiers
following the withdrawal of the administering power.64
29. In relation to the applicability of the uti possidetis principle to the
African continent, the Chamber stated that
The fact that the new African States have respected the administrative
boundaries and frontiers established by the colonial powers must be seen
63 Ibid.
64 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December
1986, ICJ Reports 1986, 554, 565, para.20.Chinese JIL (2021)
not as a mere practice contributing to the gradual emergence of a princi-
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ple of customary international law, limited in its impact to the African
continent as it had previously been to Spanish America, but as the appli-
cation in Africa of a rule of general scope.65
30. Thus, the Chamber observed that the obligation to respect pre-existing
boundaries in State succession “derives from a general rule of international
law, whether or not the rule is expressed in the formula of uti possidetis. Hence
the numerous solemn affirmations of the intangibility of the frontiers existing
at the time of the independence of African States [. . .] are evidently declara-
tory rather than constitutive: they recognize and confirm an existing
principle.”66
31. In that case, although the practice of Latin American States was insuffi-
cient to generate a customary rule applicable to African States by the time of
the obtaining of independence by Burkina Faso and Mali, the Chamber was
capable of identifying a general principle based on the need to “prevent the in-
dependence and stability of new States being endangered by fratricidal strug-
gles provoked by the challenging of frontiers following the withdrawal of the
administering power”, which was evidenced in the practice of Latin American
States. Again, this is an example of deriving a general principle from the
“implied consent” of States based on the needs of the international legal sys-
tem and the broader context of the international community.
32. Similarly, in Corfu Channel, there was no clear rule in the conventional
or customary international law addressing the obligation of Albanian authori-
ties to notify British warships of the existence of a minefield in Albanian terri-
torial waters. But the Court was able to identify certain “general and well-
recognized principles” on such obligations, which include “elementary consid-
erations of humanity, even more exacting in peace than in war; the principle
of the freedom of maritime communication; and every State’s obligation not
to allow knowingly its territory to be used for acts contrary to the rights of
other States”.67 In that case, the consent of States to these principles can be
65 Ibid., para.21.
66 Ibid., para.26 (“[T]he applicability of uti possidetis in the present case cannot be
challenged merely because in 1960, the year when Mali and Burkina Faso achieved
independence, the Organization of African Unity which was to proclaim this princi-
ple did not yet exist, and the above-mentioned resolution calling for respect for the
pre-existing frontiers dates only from 1964.”).
67 Corfu Channel (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ
Reports 1949, 4, 22.Shao, What We Talk about When We Talk about General Principles of Law
deemed as implied in the existing rules of international law, including those
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contained in the Hague Convention of 1907, even though it is applicable
only in times of war and Albania was not a party to it.
33. On a separate note, the Corfu Channel judgment can also be under-
stood as an application of the principle of sic utere tuo ut alienum non laedas
(use your property in such a manner as not to injure that of another) that
finds its origins in Roman law.68 Indeed, although general principles derived
from national legal systems and those formed within the international legal
system look like very different animals, the line between them is less clear-cut
than it may appear. This should not be surprising because, after all, general
principles derived from national legal systems are, strictly speaking, also
“formed within the international legal system”. As another example, it is
doubtful whether the principle of pacta sunt servanda belongs to the first or
the second category. Although this principle has a Roman law origin, it is so
axiomatic and deeply entrenched in international law that it is questionable
whether the presence of a corresponding principle in national legal systems re-
ally matters for the identification of this principle. In some cases, the disputing
party may rely on general principles of both categories to support the same ar-
gument. For instance, in the Right of Passage case, Portugal relied on not only
general principles derived from national legal systems,69 but also “principles
inherent in the international legal order”70 to support the existence of its right
to access the enclaved territory.
34. In some cases, judges may disagree on whether a matter should be re-
solved by general principles of the first or second category, even if they agree
on the ultimate conclusion. In the Furundz ija case decided by the
International Criminal Tribunal for the Former Yugoslavia (ICTY), in order
to find the definition of “rape” based on general principles of law, the Trial
Chamber surveyed criminal laws of 19 jurisdictions, covering civil law and
common law systems, as well as legal systems located in different continents.
However, the comparative survey only revealed the disagreement among dif-
ferent legal systems on the specific definition.71 Accordingly, the Trial
68 Jutta Brunnée, Sic Utere Tuo Ut Alienum Non Laedas, in: Rüdiger Wolfrum (ed.),
Max Planck Encyclopedia of Public International Law (2010).
69 Right of Passage over Indian Territory (Portugal v. India), Reply of Portugal, n.47
above, paras.327-334.
70 Ibid., paras.335-348.
71 Prosecutor v. Furundzija, Trial Chamber Judgment (10 December 1998), IT-95-
17/1, para.179-180.Chinese JIL (2021)
Chamber found that a general principle derived from domestic laws cannot
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be identified, and decided “to establish whether an appropriate solution can
be reached by resorting to the general principles of international criminal law
or, if such principles are of no avail, to the general principles of international
law.”72 Following that observation, the Trial Chamber applied “[t]he general
principle of respect for human dignity”, which it considered as “the basic un-
derpinning and indeed the very raison d’être of international humanitarian law
and human rights law.” On this basis, it reached the conclusion that forced
oral penetration should be classified as rape.73 The Special Rapporteur has cat-
egorized the principle applied in that case under the rubric of “general princi-
ples formed within the international legal system”.74
35. However, in Kunarac, the Trial Chamber resolved the same question of
the definition of “rape” based on general principles of the first, instead of the
second, category:
In considering these national legal systems the Trial Chamber does not
conduct a survey of the major legal systems of the world in order to iden-
tify a specific legal provision which is adopted by a majority of legal sys-
tems but to consider, from an examination of national systems generally,
whether it is possible to identify certain basic principles, or in the words
of the Furundz ija judgement, “common denominators”, in those legal
systems which embody the principles which must be adopted in the in-
ternational context.75
36. Accordingly, instead of resorting to general principles of the second cat-
egory, the Trial Chamber in Kunarac was able to find that “[t]he basic princi-
ple which is truly common to these legal systems is that serious violations of
sexual autonomy are to be penalised”.76 Based on this principle, it identified
the actus reus of the crime of rape in international law.77
37. The approach taken in Kunarac appears to be preferable, as the concept
of “rape”, after all, originates in domestic laws. In such cases, to construct an
international definition from scratch in disregard of domestic institutions risks
72 Ibid., para.181.
73 Ibid., para.183.
74 Second Report, n.4 above, paras.143-144.
75 Prosecutor v. Kunarac et al., Trial Chamber Judgment (22 February 2001), IT-96-
23-T & IT-96-23/1-T, para.439 (footnote omitted).
76 Ibid., para.457.
77 Ibid., para.460.You can also read
