International law, Sixth edition
General principles of law
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
General principles of law
108 In any system of law, a situation may very well arise where the court in considering a case before it realises that there is no law covering exactly that point, neither parliamentary statute nor judicial precedent. In such instances the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy. Such a situation is perhaps even more likely to arise in international law because of the relative underdevelopment of the system in relation to the needs with which it is faced. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situa- tions. 109 It is for such a reason that the provision of ‘the general principles of law recognised by civilised nations’ 110 was inserted into article 38 as a source of law, to close the gap that might be uncovered in international law and solve this problem which is known legally as non liquet. 111 The 107 See further below, p. 686, with regard to extradition treaties and below, p. 837, with regard to bilateral investment treaties. 108 See e.g. B. Cheng, General Principles of Law as Applied by International Courts and Tri- bunals, London, 1953; A. D. McNair, ‘The General Principles of Law Recognised by Civilised Nations’, 33 BYIL, 1957, p. 1; H. Lauterpacht, Private Law Sources and Analo- gies of International Law, London, 1927; G. Herczegh, General Principles of Law and the International Legal Order, Budapest, 1969; O. Schachter, International Law in Theory and Practice, Dordrecht, 1991, pp. 50–5; O. Corten, L’Utilisation du ‘Raisonnable’ par le Juge International, Brussels, 1997; B. Vitanyi, ‘Les Positions Doctrinales Concernant le Sens de la Notion de “Principes G´en´eraux de Droit Reconnus par les Nations Civilis´ees” ’, 86 Revue G´en´erale de Droit International Public, 1982, p. 48; H. Waldock, ‘General Course on Public International Law’, 106 HR, 1962, p. 54; Pellet, ‘Article 38’, p. 764; Thirlway, ‘Supplement’, p. 108; M. Sørensen, ‘Principes de Droit International’, 101 HR, 1960, p. 16, and V. Degan, ‘General Principles of Law’, 3 Finnish YIL, 1992, p. 1. 109 Note that the International Court has regarded the terms ‘principles’ and ‘rules’ as es- sentially the same within international law: the Gulf of Maine case, ICJ Reports, 1984, pp. 246, 288–90. Introducing the adjective ‘general’, however, shifts the meaning to a broader concept. 110 The additional clause relating to recognition by ‘civilised nations’ is regarded today as redundant: see e.g. Pellet, ‘Article 38’, p. 769. 111 See e.g. J. Stone, Of Law and Nations, London, 1974, chapter 3; H. Lauterpacht, ‘Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order’, s o u r c e s 99 question of gaps in the system is an important one. It is important to appreciate that while there may not always be an immediate and obvi- ous rule applicable to every international situation, ‘every international situation is capable of being determined as a matter of law’. 112 There are various opinions as to what the general principles of law concept is intended to refer. Some writers regard it as an affirmation of Natural Law concepts, which are deemed to underlie the system of international law and constitute the method for testing the validity of the positive (i.e. man-made) rules. 113 Other writers, particularly positivists, treat it as a sub-heading under treaty and customary law and incapable of adding anything new to international law unless it reflects the consent of states. Soviet writers like Tunkin subscribed to this approach and regarded the ‘general principles of law’ as reiterating the fundamental precepts of international law, for example, the law of peaceful co-existence, which have already been set out in treaty and custom law. 114 Between these two approaches, most writers are prepared to accept that the general principles do constitute a separate source of law but of fairly limited scope, and this is reflected in the decisions of the Permanent Court of International Justice and the International Court of Justice. It is not clear, however, in all cases, whether what is involved is a general principle of law appearing in municipal systems or a general principle of international law. But perhaps this is not a terribly serious problem since both municipal legal concepts and those derived from existing international practice can be defined as falling within the recognised catchment area. 115 Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling