The relationship between general principles of international law and Article 38(1) of the ICJ statute: A law of the sea perspective

Abstract

A central controversy relating to the UN International Law Commission’s ongoing project “General Principles of Law” is whether general principles of law “formed within the international legal system” could be regarded as part of Article 38(1)(c) of the Statute of the International Court of Justice (ICJ), which provides that the ICJ shall apply “the general principles of law recognized by civilized nations” in its decisions. This article examines the matter from a law of the sea perspective. Based on a comprehensive review of international judicial practice relating to law of the sea issues as well as the travaux préparatoires of the ICJ Statute, it is found that there is insufficient support for the inclusion of general principles of international law into the category of ‘general principles of law’ under Article 38(1)(c). From a lex ferenda perspective, however, instead of insisting on the two elements for the formation of customs which are rarely followed in judicial practice, it seems better to recognize that general principles of international law are part of general principles of law and endeavor to find consensus on the meaning of “recognition” under Article 38(1)(c).