2.

6 General principles of law

The third source of international law listed in Article 38(1) is ‘the general principles of law
recognized by civilized nations”.
The phrase ‘civilized nations’ was previously used to describe States with well-developed legal
systems that could cater for complex relations amongst nations.
However, following the formation of the United Nations, the phrase ‘civilized nations’ has been
replaced by ‘peace-loving nations’ under Article 4 of the UN Charter.

2.6.1 General principles of which law?

 The phrase ‘general principles of law’ refers to either general principles of international
law or general principles of national law, or both.
 It can be difficult to determine what general principles of law are, given that not all
principles applied in international law derive from domestic legal systems.

2.6.2 Ex aequo et bono and equity

Ex aequo et bono is a Latin phrase that loosely translates as ‘according to what is right
and good’, or ‘according to equity and good conscience’.
It implies the principles of fairness in the same way as equity is used in some domestic
systems.

In the absence of agreement by the parties that the Court deal with their case ex aequo et
bono, can it apply equity?

According to the Frontier Dispute Case (1985) urkina Faso v. Mali:

In this case cannot apply ex aequo et bono principle since the parties have not agreed to
that effect.

2.6.3 Other commonly applied general principles of law: reparation, res judicata, and pacta sunt
servanda

 Germany v. Poland (1928) PCIJ SER. A, NO. 17 (The Chorzów Factory Case)

In this case, the Court said (at 29) that: It is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make reparation.
  The case concerned the dismissal of some employees of the UN Secretariat. According to
a well-established and generally recognised principle of law, a judgment rendered by a
judicial body is res judicata and has binding force between the parties to the dispute.

 The last general principle to be considered is pacta sunt servanda. This is the principle
that obligates States to discharge their treaty obligations in good faith.
2.6.4 When will the ICJ not apply general principles of law?

 The fact that a principle is common to most domestic systems does not mean that the
Court will always apply it.
 The Courts are not bound to apply general principles of law just because such principles
have been raised by one of the parties to the case.
Example: United States v. Italy (1989) ICJ (The Elettronica Sicula SPA Case or ELSI
Case)

2.7 Judicial decisions

Article 38(1)(d) of the ICJ Statute lists judicial decisions as one of the two subsidiary
sources to which the Court might resort when dealing with a dispute.
Judicial decisions are regarded as a ‘subsidiary’ source because they can only be used to
reinforce principal sources.
National courts have been considerably influential in establishing international rules such
as those on diplomatic immunity and human rights.