3.

1 General Principles of Law as Recognised by Civilized Nations

The statute mentions general principles of law by civilized nations as the third source
of international law. “It does not define civilized”, the provision is reminiscent of
exclusiveness of international law in the past to Christian nation and then to
“civi1ized” nations. The word is now used to refer to the states of the international
community. Presumably, general principles will not include a theory of criminal
punishment that supports the amputation of convicted criminals. They exclude
barbarous relics of any religious or judicial system.

If there is a relevant treaty or custom, general principle does not apply. They are
called in to fill a lacuna in the law so that the court is not incapacitated from giving a
judgment non liquate. They constitute a reservoir of principles from which the courts,
may draw in appropriate cases and further recognize the dynamic nature of
international law and the creative function of the courts in administering it. This
borrowing is not new but merely declaratory of existing practice of international
courts. The early writers draw inspiration from the principles of Roman law. They
embraced the principles of substantive, procedural and evidentiary law common to
legal systems and which exist in both municipal and international laws.

The court is however, not obliged to admit a municipal doctrine if it thinks, it is

inapplicable in court, as opposed to dissenting judgments, rarely makes reference to
general principles. It does not require a principle to be manifested in every legal
system, does not even call for evidence of its being widespread and does not indulge
in a comparative study of systems.

In practice, it takes the general principles known to judges sitting. The number of
legal systems considered is not as many as the number of states in the wor1d. This
may be because of the penetration of European legal principles in other parts of the
world. Thus, the same principles applicable in Britain may apply to Nigeria, Malawi,
India, New Zealand and Canada, all of them, former British colonies and now
members of the Commonwealth of Nations. The same applies to other former
colonial powers and their former colonies.

In practice, every principle is considered on its merits and no state now accepts a
principle merely because it was supported by another. The Soviets sometimes used
general principles in the sense of the most fundamental principles of international
law. For example, rule against aggression but this was unacceptable to others. To
become law, the general principles must form part of treaty law or custom.

General principles are only applied if they were part of treaty or custom: Some
examples of general principles are –pact sunt servanda (a party cannot be a judge in
his own case), the doctrine of litis pendens (non retroactivity of criminal legislation)
and the territoriality of crimes. The ICJ invoked consideration of humanity in the
Corfu and Nicaragua cases in the South-West African case.