General Principles of Law Recognised by Civilised Nations

The safer answer in an examination is the narrow view, with the acknowledgement that the Court has sometimes used the phrase loosely, and that the International Law Commission's recent work recognises both a category derived from national legal systems and a category formed within the international legal system itself.

Three limits operate whichever view is taken. The principle must be found in legal systems generally, not in one system. It must be transposable: rules built on institutions that have no international counterpart, such as a public prosecutor or a bankruptcy court, cannot cross over. And it applies only where treaty and custom do not, which is why paragraph (c) decides very few cases on its own.

The principles that have actually been applied

An answer that lists principles without authority is weak. These are the ones with a real pedigree.

Reparation for a breach. The proposition comes from the case worked below and is expressly framed as a principle of law in general, not merely of international law.

Facts. Factory at Chorzow (Germany v. Poland), Merits, PCIJ Series A, No. 17, judgment of 13 September 1928. Poland had taken measures of dispossession against two German-owned concerns at Chorzow in Upper Silesia, the owner and the operator of a nitrate factory. The Court had held in 1926 that this was not in conformity with the Geneva Convention concerning Upper Silesia of 22 May 1922. Negotiations on the consequences failed, and Germany began fresh proceedings in February 1927 claiming an indemnity.

Held. The obligation to make reparation exists, because it is a principle of international law, or even of law in general, that any breach of an engagement involves an obligation to make reparation. As to measure, restitution must in principle be in kind, or, if that is impossible, a sum corresponding to the value of the thing that cannot be restored, because reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Compensation for a seizure of property that could not lawfully be expropriated need not be limited to the value of the undertaking, and the Court ordered an expert enquiry to fix the value. It also held that although the loss fell on the companies, the claim was between States: reparation owed to a State does not change its character because a private person's loss measures it, and the rules of international law apply.

Why it matters. It is the classic instance of paragraph (c) at work, and both of its propositions are now in the ILC Articles on State Responsibility, worked in [State Responsibility] and [Circumstances Precluding Wrongfulness, and Reparation].

Good faith. Every system has it, and it appears throughout international law: in pacta sunt servanda in article 26 of the Vienna Convention, in the obligation to negotiate meaningfully stated in the North Sea cases, and in the interpretation rule in article 31.

Estoppel, sometimes called preclusion. A State that has by its conduct led another to rely on a state of affairs to its detriment cannot afterwards deny it. The North Sea cases discuss it and find it not established on the facts, which is itself instructive.

Res judicata. A matter finally decided cannot be reopened between the same parties. Article 60 of the Statute of the Court, providing that a judgment is final and without appeal, is its statutory expression.

Nobody may be a judge in his own cause, and the related rules of natural justice: notice, and an opportunity to be heard.

Circumstantial evidence and inference. The Corfu Channel case, worked in [Innocent Passage, and Straits], allowed a State that cannot get at evidence held inside the respondent's territory a more liberal recourse to inferences and circumstantial evidence, and that is a rule of proof taken from domestic systems.

Unjust enrichment, prescription, subrogation and abuse of rights appear in the case law and the literature, some of them more contested than others.

What paragraph (c) is not

It is not equity. Equity is dealt with in [Equity], and the difference matters: a general principle is a rule of law, applied because it is law. Equity in the sense of article 38(2), ex aequo et bono, is a power to decide outside the law and needs the parties' agreement.

It is not natural law. The principles are found by comparing legal systems, not by reasoning from first principles about what is right.

It is not a licence to invent. A judge who says "the general principles of law require X" without showing that X is found in legal systems generally has decided the case on his own view, and that is exactly the criticism made of this source.

A worked example

State M and State N conclude a treaty for a joint hydroelectric project. State N spends heavily on preparatory works after repeated written assurances by State M's minister that the project will proceed. State M then abandons it, and points out that the treaty contains no clause about withdrawal, that no custom governs the point, and that the Vienna Convention rules on termination do not cover a case like this.

There is no treaty rule, no custom, and no convention provision, and the tribunal cannot say the case is incapable of decision. This is where paragraph (c) does its work.

Good faith. The obligation to perform in good faith is common to every legal system and is expressly stated for treaties in article 26 of the Vienna Convention.

Estoppel. State M made clear representations, State N relied on them, and the reliance was detrimental. The North Sea cases show the elements a tribunal will look for and show that they must genuinely be established.

Reparation. If a wrong is found, the Chorzow principle supplies the remedy: as far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would have existed. In practice that means compensation for the wasted preparatory works.

Notice that none of these three principles came from a treaty or from State practice. Each came from the shared content of domestic legal systems, and each was applied because it fits relations between States.

Distinctions table

What it does NOT mean

It is not a third-rank source. Article 38 states no hierarchy. Paragraph (c) is used less because treaty and custom usually answer the question first.

"Civilized nations" excludes nobody today. Any answer must say so.

Not every domestic rule crosses over. A principle tied to an institution international law does not have cannot be transposed, however universal it is at home.

Limits and criticism

It is the least predictable source. No agreed method exists for showing that a principle is general: no tribunal surveys all the world's legal systems, and in practice a handful of familiar ones stand in for the rest, which are usually the civil law and the common law of Europe.

It can conceal judicial law-making. A tribunal that wants a result and lacks a rule can reach for a "general principle", and there is no reliable check on it.

Its historical framing is still in the text. A century after the phrase was written, and eighty years after the Charter promised the sovereign equality of all its Members, the Statute still refers to civilised nations.

Quick revision

Article 38(1)(c): the general principles of law recognised by civilised nations.

Purpose: to prevent a non liquet, a declaration that the case cannot be decided for want of a rule.

"Civilized nations" is a 1920 relic, reproduced in 1945, never amended; read today as the legal systems of the world generally, excluding nobody.

Narrow view: principles drawn from municipal legal systems and transposable to relations between States. Broad view: also principles inherent in the international community. Three limits: generality, transposability, and subsidiarity to treaty and custom.

Principles actually applied: reparation for breach and the measure of it (Factory at Chorzow, PCIJ Series A No. 17); good faith; estoppel; res judicata; nobody a judge in his own cause; circumstantial evidence (Corfu Channel); unjust enrichment, prescription and abuse of rights.

Chorzow, the two sentences to remember: any breach of an engagement involves an obligation to make reparation; and reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

Distinguish general principles from equity and from natural law.

Test yourself

1. Why was article 38(1)(c) included in the Statute?

To prevent a non liquet. If a court could apply only treaty and custom it would have to dismiss for want of law any case falling outside both, and a court that regularly declared cases incapable of decision would not function as a court. Paragraph (c) gave the judges the shared content of the world's legal systems to draw on where the specific sources ran out.

2. What does "civilised nations" mean today, and how should a candidate handle the phrase?

Nothing more than the legal systems of the world generally. The phrase was written in 1920, when international law was made by a small group of European States, and it was reproduced without change in 1945 and never amended. A candidate should quote the provision accurately, state in a sentence that the adjective is a historical relic that excludes no State today, note that the International Law Commission has recommended dropping it, and then answer the question asked.

3. Give three general principles that have been applied, with authority for one.

Reparation for breach, good faith and estoppel. The authority for reparation is Factory at Chorzow, PCIJ Series A No. 17, where the Permanent Court held that it is a principle of international law, or even of law in general, that any breach of an engagement involves an obligation to make reparation, and that reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would in all probability have existed had it not been committed.

4. Can any rule of Indian law be a general principle of law under article 38(1)(c)?

Only if two conditions are satisfied. It must be general, that is, found across the major legal systems of the world and not peculiar to India, since the source rests on what legal systems have in common. And it must be transposable to relations between sovereign States, which excludes rules built on institutions that have no international counterpart. A rule of the Code of Civil Procedure about the powers of a district court fails both tests; the principle of res judicata that underlies it satisfies both.

5. Distinguish a general principle of law from equity.

A general principle is a rule of law, applied because it is law, identified by comparing legal systems and imported where transposable. Equity, in the sense of article 38(2), is ex aequo et bono, a power to decide a case outside the law on grounds of fairness, which requires the express agreement of both parties and has never been given. Equity in a weaker sense, meaning fairness applied within the law, operates as part of the reasoning under the other sources, and is dealt with in [Equity].

6. "Article 38(1)(c) is a licence for judges to make law." Discuss.

There is force in it. No agreed method exists for establishing that a principle is general; no tribunal surveys the world's legal systems, and in practice a small number of familiar systems stand in for the rest. A tribunal that wants a result and has no rule can reach for a general principle and face little check. The answer is threefold: the source is genuinely necessary, because the alternative is a non liquet; the principles actually applied, reparation, good faith, estoppel, res judicata, natural justice, are uncontroversially common to legal systems everywhere; and paragraph (c) decides very few cases on its own, because treaty and custom answer the question first almost every time.