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Article 38 of The Statute of The ICJ Refers To
Article 38 of The Statute of The ICJ Refers To
1 Malanczuk, p.48.
2 Shaw, pp. 93-4
3 HermannMosler,GeneralPrinciplesofLaw,2ENCYCLOPEDIAOFPUBLICINTERNATIONAL
LAW513,516(publishedundertheauspicesoftheMaxPlanckInstituteforComparativePublicLaw
andInternationalLawdir.ofRudolfBernhardt,Elsevier,Amsterdamandothers,1999).
In 1945, the ICJ was established together with the United Nations. The ICJ
had some form of continuity with respect to the PCIJ. However it was not its
legal successor4.
General Principles are considered to be law and not something else. This can
be seen primarily in the drafters intent since they perceived them as law. But
more importantly, this is evident from the structure of article 38. All the three
categories under a, b and c, are classified as international law. Also, General
Principles, occupying a separate paragraph, are expressly distinct from
custom. Scholars have attempted various definitions of General Principles of
International Law. In a sense of praetorian jurisprudence it seems that a court
does not need to explain where it found the general principle, or how it
established it exists. It can only invoke it, identify it as a general principle, that
being enough to provide for legitimacy.
The notion of civilized nations in article 38
Even though General Principles of Article 38 is the least examined source of
law, there is one issue that scholars often comment on, namely the inclusion
of the term civilized in the provision. A recurrent criticism is that the term
civilized nations is problematic, given its apparent vagueness and the
presumption that some nations may be uncivilized. The predominant scholarly
viewpoint, and which has received judicial endorsement, is that the notion is
founded upon a developed legal system and therefore includes all but the
most primitive of societies.5
Bassiouni for instance, starts by identifying two elements in the provision, the
element of General Principles and the element of civilized nations and then
he dismisses the entire discussion on whether a nation is or is not civilized by
saying that all UN members today are considered to be civilized. 6 That
thought however seems to introduce a simplification, and also it brings out an
obvious question about nonUN members. For instance Switzerland only
became a UN member in 2002. Of course, this does not mean that only then
Switzerland became a civilized nation.
Furthermore, the precise legal meaning of the formula general principles of
law common to all civilized nations is not free from controversy. There are
4 PeterMalanczuk,AkerhurstsModernIntroductiontoInternationalLaw,at281(7thed.Routledge,
1997).
5 9BledsoeandBoczek1987,pp.2829.
6 CherifBassiouni,AFunctionalApproachtoGeneralPrinciplesofInternationalLaw11MICH.J.
INTLL.769,770771(19891990)
two rival schools of thought as to its precise meaning. The first is that it
encompasses those basic principles of municipal law common to all national
systems applicable to international relations. The other is the more restrictive
meaning that it refers only to general principles of international law as distinct
from specific rules of international law.