General Principles of International Law: Struggling with A Slippery Concept

Article 38(1)(c) of the Statute of the International Court of Justice includes general principles of law recognized by civilized nations among the sources of international law. There has been strong debate over the meaning of this expression. One of the most disputed aspects has been whether it refers only to those principles which are recognized by the majority of the domestic legal systems or also to those principles pertaining to the international legal system per se. In support of the latter argument stands international case law that has often resorted not only to those general principles of law common to most domestic legal systems but also to those traceable back to the international legal system itself. But what this last expression means—as well as its legal nature—is anything but clear. The present chapter will look at a specific principle—the principle of humanity—as the starting point and guideline for further reflections on the meaning and legal nature of general principles of international law. This analysis will have, as an unavoidable implication, the questioning of the role of the judiciary in the process of detecting and upholding what amounts to general principles of international law.