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General Principles as a Source of International Law

Art 38(1)(c) of the Statute of the International Court of Justice

By: Imogen Saunders
Media of General Principles as a Source of International Law
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Published: 25-02-2021
Format: EPUB eBook (?)
Edition: 1st
Extent: 304
ISBN: 9781509936076
Imprint: Hart Publishing
Series: Studies in International Law
RRP: £76.50
Online price : £61.20
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About General Principles as a Source of International Law

This book provides a comprehensive analysis of an often neglected, misunderstood and maligned source of international law. Article 38(1)(c) of the Statute of the International Court of Justice sets out that the Court will apply the 'general principles of law recognized by civilized nations'. This source is variously lauded and criticised: held up as a panacea to all international law woes or denied even normative validity. The contrasting views and treatments of General Principles stem from a lack of a model of the source itself. This book provides that model, offering a new and rigorous understanding of Article 38(1)(c) that will be of immense value to scholars and practitioners of international law alike.

At the heart of the book is a new tetrahedral framework of analysis - looking to function, type, methodology and jurisprudential legitimacy. Adopting an historical approach, the book traces the development of the source from 1875 to 2019, encompassing jurisprudence of the Permanent Court of International Justice and the International Court of Justice as well as cases from international criminal tribunals, the International Criminal Court and the World Trade Organisation. The book argues for precision in identifying cases that actually apply General Principles, and builds upon these 'proper use' cases to advance a comprehensive model of General Principles, advocating for a global approach to the methodology of the source.

Table Of Contents

Summary of Contents
1. A Framework for Analysing General Principles
I. Introduction: A Tetrahedral Framework
II. Jurisprudential Legitimacy: A Brief Consideration of Positivism and Natural Law
III. Function: A Binding Source of International Law?
IV. Type
V. Methodology
VI. Conclusion
2. History of Article 38(1)(c)
I. Introduction
II. Development Pre-World War I
III. Development Post-World War I
IV. Article 38(1)(c) and the PCIJ
V. Conclusion: Applying the Tetrahedral Framework
3. Consideration of Article 38(1)(c) by the PCIJ
I. Introduction: Separating the Wheat from the Chaff
II. Cases in Chronological Order
4. Development of Article 38(1)(c): 1945–91
I. Introduction
II. Historical Development: PCIJ to ICJ
III. Cases
IV. Conclusion
5. Development of Article 38(1)(c) by the ICJ: 1992–2019
I. Introduction
II. Cases (Except for the Separate and Dissenting Opinions of Judges Weeramantry and Cançado Trindade)
III. Contributions of Judge Weeramantry
IV. Contributions of Judge Cançado-Trindade
V. Conclusion
6. General Principles in Other Courts and Tribunals
I. Introduction
II. International Criminal Tribunals
III. International Economic Law
IV. International Tribunal for the Law of the Sea
V. Regional Bodies
VI. Conclusion
7. Commentary in Context
I. Article 38(1)(c) as a Norm-Creating Source of International Law
II. The Rule/Principle Distinction
III. Judicial Discretion
IV. Where are General Principles Drawn From?
V. Content of General Principles
8. Global General Principles
I. Types of Legal Systems
II. Perspectives on General Principles
III. The Comparativist's Warning
IV. Global General Principles in the Information Age
9. A Model of General Principles
I. A Tale of Two Sources: Illegitimate Duality
II. General Principles and Legitimate Duality
III. The Future of General Principles


“This is a book that is far, far more than an examination of one paragraph of a section of the Statute of the International Court of Justice. It is a book that examines the very nature of international law and, beyond that, of law itself. It is a stunning work in the finest traditions of the greatest international law thinkers.” –  Justice James Edelman, High Court of Australia

“In this book, Imogen Saunders takes us on a quest and the whole field benefits as a result. She searches for a better way of explaining what general principles are and how they can be found and justified. She is driven by the questions of why and how, she searches for deeper understanding and coherence. Saunders' explanation meets a need that the field has long felt and is particularly timely given that the ILC has picked up this topic. This book will stand the test of time as an important contribution to any international lawyer's library. Citations to Bin Cheng's famous book on the subject will now need to be matched by citations to Imogen Saunders's book.” –  Professor Anthea Roberts, The Australian National University

“It is a truly impressive achievement: it's not only an exhaustive study of the doctrine of general principles in international law but also an ambitious theoretical enterprise.” –  Professor Hilary Charlesworth, The University of Melbourne

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