General Principles of Law in the System of International Law

Abstract

The general principles of law recognized by civilized nations, as defined in the Statute of theInternational Court of Justice, remain an important legal tool designed to regulate interstaterelations, including those used in the settlement of disputes between states. The need fortheir application, as a rule, arises when a particular issue is not covered by internationaltreaties and international customs and it is required to fill a gap in international law. At thesame time, since the introduction of the term “general principles of law recognized bycivilized nations” (hereinafter, general principles of law) into international legal circulation,its official interpretation has not yet been given. In the science of international law, thereis also no common position regarding the content of general principles of law, their legalnature, and an unambiguous answer to the question of whether they refer to the sourcesof international law is not given. Nonetheless, a general approach is emerging, according to which such principles are general principles of law arising from national legal systems,and general principles formed within the framework of the international legal system.General principles of law arising from national legal systems are the norms of domesticlaw and remain so regardless of whether there is a need for their use, which is carried outby transposition into the international legal system. The article proposes such methodsas: general or general transposition — international legal inclusion of general principlesof law arising from national legal systems into international law; reception — a reflectionof the general principles of domestic law in international treaties or international customs;reference — a provision of an international treaty or a decision of an international judicialbody, according to which the law enforcement officer refers to the general principles of lawarising from national legal systems. General principles of law are applicable law, elementsof which are often found in the founding treaties establishing international judicial bodies.They can be found in other practice of law enforcement. In author’s opinion, the generalprinciples of law can only be conditionally attributed to the source of international law,since they represent the norms of international or domestic law. In this work, an attemptis made to reveal the legal nature of the general principles of law, to reveal their role andplace in international law and the Russian legal system.
Forcitation: Romashev Yu.S. (2021) General Principles of Law in the System of International Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 148–174 (in Russian) DOI: 10.17323/2072-8166.2021.3.148.174