General Principle of International Law as a Source of International Environmental

Law

The importance of general principles of international is of significance in the arena of

international environmental law (IEL) because of the fact that legal instruments now prevail in
the form of “Principles” or “Declarations,” such as the Rio and Stockholm Declarations, the
Principles set forth by the UNEP and so on.1 According to Article 38(1)(c) of the ICJ statute, the
“general principles of law recognised by civilised nations” can be applied by the international
court in settling disputes. However this notion is not relevant in the present day because of the
backlash about the phrase “civilised nations.” Next, there is lack of clarity about what kind of
principles shall apply, i.e., whether res judicata, audi alteram partem find a place here, or
whether the solid principles commonly used in international law such as pacta sunt servanda,
prohibition on the use of force, etc., are to be applied.2

When the statute of the PCIJ was drafted, one group placed emphasis on the need to adopt
customs in the law, as these were part of the “natural law” and it aided in the delivery of
“objective justice.” However, this view was opposed by the other group that supported the
“positivist” approach, wherein importance must be given to principles and rules that aligned with
the states’ wills. In this respect, Article 38(1)(c) was arrived at on the basis of a compromise
between the two groups.3

It has also been opined that Article 38, attempts to come up with a secondary source wherein the
court plays a role in the evolution of principles, rather than the states. This would allow the court
to bridge the gaps in the existing law. This would pave the way for construction of new and
suitable principles. On this note, the International Court has taken into consideration the
interpretations of the judicial systems in nations, so as to support its own conclusions,4 by
picking out certain elements of legal reasoning. In the Diversion of Water from the Meuse Case,
the PCIJ decided to rely on notions based on ‘general principles of law recognised by civilized
1 Draft Principles of Conduct in the Field of the Environment for the Conduct of States on the Conservation and
Harmonious Utilization of Natural Resources Shared by Two or More States, UNEP/I G 12/2 (1978)
2 James Crawford, Brownlie’s Principles of Public International Law, (8th ed., 2012)
3 Alan Boyle and David Freestone eds., International Law and Sustainable Development (1999)
4 Chorzow Factory Case PCIJ Ser A, No 8/9 (1927); Corfu Channel Case, ICJ Reports (1949)
nations.’5 In the Free Zones Cases, the doctrines of good faith and that of abuse of rights was
utilised in the interpretation.6 The features of natural law were viewed as a part of the general
principles in the South West Africa case.7 The finding in the Trail Smelter ARbitration case
placed significant reliance on the national legislations and the inherent general principles of
these.8

However, in comparison to formal instruments such as the United Nations’ Framework

Convention on Climate Change, 1992, the Convention on Biological Diversity, and other
treaties, the utility of general principles is barely noteworthy. The principles stipulated by the
instruments, such as precautionary principle, the polluter-pays principle, and the principle of
common but differentiated responsibilities have been adopted more widely due to their
specialised nature and appropriateness. These also exert influence on the development of treaties,
as manifested under Article 31(3) of the Vienna Convention on the Law of Treaties, 1969.
General principles also have the capacity to alter the manner of application of customary law.
One instance of this, is how the precautionary principle influences the practices of the state and
the decisions of the international court. The authority accorded to these principles arises from
opinio juris.9 These principles can be equated with Dworkin’s proposition of constitutional
principles.10 By acting as guiding lights, general principles have attempted to and succeeded in
bringing about positive changes in international environmental law.11

5 PCIJ Ser A/B No 70 (1937)

6 Free Zones Case (Second Phase) Final Order, PCIJ Ser A, No 24 (1932), and Free Zones Case (Merits) Ser A/B,
No 46 (1932)
7 ICJ Reports (1966)
8 35 AJIL (1941)
9 Patricia Birnie et al., International Law and Environment (4th ed., Oxford)
10 Ronald Dworkin, Taking Rights Seriously (London, 1977)
11 Gabčíkovo Nagumaros Project, ICJ GL No 92, [1997]