GENERAL PRINCIPLES OF LAW FORMED WITHIN THE INTERNATIONAL LEGAL SYSTEM

IF 1.6 2区社会学 Q1 LAW

International & Comparative Law Quarterly Pub Date : 2023-10-01 DOI:10.1017/s0020589323000362

Eirik Bjorge

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Abstract

Abstract In the work of the International Law Commission (ILC) on ‘the general principles of law’ in Article 38(1)(c) of the Statute of the International Court of Justice, one question has given rise to an inordinate amount of controversy: does this category of principles include principles formed within the international legal system or does it embrace only principles derived from national legal systems? In the draft conclusions adopted on first reading in 2023, the ILC accepts the existence of general principles of law formed within the international legal system, but only in a very narrow manner. Prominent commentators have argued that such a narrow approach is correct. It has been contended, furthermore, that the category of general principles of law formed within the international legal system is an innovation of the ILC's, and one that lacks any real support in State practice. These views are based on assumptions to the effect that the traditional view concerning the meaning of Article 38(1)(c) was that it referred only to general principles of law derived from national legal systems. The present article takes issue with these assumptions. It seeks to prove, by an analysis of the position in 1920 when the Statute was drafted, of the practice of States, both before and after 1920, and the writings of leading commentators, that general principles of law formed within the international legal system are no less part of ‘general principles of law’ than general principles of law derived from national legal systems.

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在国际法律体系内形成的一般法律原则

在国际法委员会(ILC)关于《国际法院规约》第38(1)(c)条“法律一般原则”的工作中，有一个问题引起了过多的争议:这类原则是否包括在国际法律体系内形成的原则，还是只包括源自国家法律体系的原则?在2023年一读通过的结论草案中，国际法委员会接受了在国际法律体系内形成的一般法律原则的存在，但只是在非常狭隘的范围内。著名评论员认为，这种狭隘的做法是正确的。此外，有人争辩说，在国际法律制度内形成的一般法律原则类别是国际法委员会的一项创新，在国家实践中缺乏任何真正的支持。这些观点所根据的假设大意是，关于第38条第(1)款(c)项含义的传统观点是，该条只涉及来自国家法律制度的一般法律原则。本文对这些假设提出质疑。通过对1920年《规约》起草时的立场、1920年前后各国的实践以及主要评论员的著作的分析，本报告试图证明，在国际法律体系内形成的一般法律原则与源自国家法律体系的一般法律原则一样，都是“一般法律原则”的组成部分。

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来源期刊

International & Comparative Law Quarterly LAW-

CiteScore

3.20

自引率

10.00%

发文量

期刊介绍： The International & Comparative Law Quarterly (ICLQ) publishes papers on public and private international law, comparative law, human rights and European law, and is one of the world''s leading journals covering all these areas. Since it was founded in 1952 the ICLQ has built a reputation for publishing innovative and original articles within the various fields, and also spanning them, exploring the connections between the subject areas. It offers both academics and practitioners wide topical coverage, without compromising rigorous editorial standards. The ICLQ attracts scholarship of the highest standard from around the world, which contributes to the maintenance of its truly international frame of reference. The ''Shorter Articles and Notes'' section enables the discussion of contemporary legal issues and ''Book Reviews'' highlight the most important new publications in these various fields. The ICLQ is the journal of the British Institute of International and Comparative Law, and is published by Cambridge University Press.