A basic introduction to international legal research in the Peace Palace Library. Your road map for approaching an international legal research problem. Step 3.
Article 38(1)(c) of the Statute of the International Court of Justice states that the Court shall apply 'general principles of law recognized by civilized nations' as a source of law in reaching decisions. It clearly refers to 'general principles of law', not 'general principles of international law'. Apparently, this was to allow the Court to develop and refine international law principles by adopting and adapting principles from national systems to create a body of rules compatible with the international legal system.
The use of general principles of law as a source arises where neither treaty nor international custom govern a matter. It serves as a gap filler. Eventually, general principles of law can develop into customary international law. The Court, however, has rarely explicitly referred to Article 38 (1)(c) in its judgments and opinions. In the few instances where the Court resorts to general principles of law, it does so without making the effort to demonstrate it.
Over the years, the application and use of general principles of law arose more frequently in international criminal law. Unlike the ambiguous language of Article 38 (1)(c) of the ICJ Statute, Article 21 of the Rome Statute of the International Criminal Court explicitly states that the Court (ICC) shall apply 'general principles of law derived by the Court from national laws of legal systems of the world ...'.
As there is no treaty or other instrument that clearly spells out what is exactly meant by 'general principles of law', the parameters of this source must thus be explored primarily through international jurisprudence and scholarly writings. Researching general principles of law is largly a foreign law research project. Researchers must take a broad view to understand the legal system and how the general principle of law operates within that system and finally, how it can be transposed to the international system.
The Peace Palace Library Research Guides, prepared and maintained by our team of Law Librarians, may suggest certain books, articles and other materials on general principles of law considered indispensable for doing research on your specific topic.
You might consider our Library Instruction on how to conduct legal research in the Library at all levels.
Books and articles
- Andenas, M. (et al.) (eds.), General Principles and the Coherence of International Law, Leiden, Boston, Brill Nijhoff, 2019.
- Cheng, B., General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953.
- Degan, V.D., "General Principles of Law (A Source of General International Law)", The Finnish Yearbook of International Law, 3 (1992), pp. 1-102.
- Ellis, J., "General principles and Comparative Law", European Journal of International Law, 22 (2011), No. 4, pp. 949-971.
- Jain, N., "Comparative International Law at the ICTY: The General Principles Experiment", American Journal of International Law, 109 (2015), No. 3, pp. 486-497.
- Jain, N., "Judicial Lawmaking and General Principles of Law in International Criminal Law", Harvard International Law Journal, 57 (2016), No. 1, pp. 111-150.
- Kotuby, C.T. and L.A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes, New York, Oxford University Press, 2017.
- McNair, A., "The General Principles of Law Recognized by Civilized Nations", British Year Book of International Law, 33 (1957), pp. 1-19.
- Raimondo, F., General Principles of Law in the Decisions of International Criminal Courts and Tribunals, Leiden, Nijhoff, 2008.
- Vázquez-Bermúdez, M. and Crosato, A., "General Principles of Law: The First Debate within the International Law Commission and the Sixth Committee", Chinese journal of international law, 19 (2020), No. 1, pp. 157-172.
- Guide to International Legal Research, Fifth Edition, Newark, LexisNexis Matthew Bender, 2003.
- Hoffman, M.B. and R.C. Berring Jr., International Legal Research in a Nutshell, Second Edition, St. Paul, West Academic Publishing, 2017.
- Kuehl, H.F. and M.A. O'Brien, International Legal Research in a Global Community, Durham, Carolina Academic Press, 2018.
- Winer, A.S., M.A.E. Archer, and L. Louis-Jacques, International Law Legal Research, Durham, Carolina Academic Press, 2013.