ACTA JURIDICA - A MTA Jogtudományi Közleményei Tom. 6 (1964)
1964 / 1-2. sz. - HERCZEGH G.: The General Principles of Law Recognized by Civilized Nations
The General Principles of Law Recognized by Civilized Nations (To the Interpretation of Article 38 of the Statute of the International Court of Justice) by G. HERCZEGH Scientific Assistant Institute for Legal and Administrative Sciences The Statute of the International Court of Justice is based on the Statute of its predecessor the Permanent Court of International Justice which was elaborated by a Committee of eminent jurists. These jurists wanted to eliminate, on the one hand, the possibilit y that the Court in the given case in absence of concrete rules might refuse to pass a judgment, and on the other hand, the danger that the Court might base its judgments on norms not recognized by the parties participating in the dispute. It was in this way that the general principles of law recognized by civilized nations were includod into the text of the Statute. At tho Conference of San Francisco where the new Statute was drafted, there was no discussion about tho various kinds of the rules of law to bo applied by the Court. The revision of the text of Article 38 did not change, in the opinion of the author, the original meaning of the Article. Which are the principles referred to in clause c)'l The principles of international law may be found in international treaties and in the international customary law, and they may bo inferred from those by generalization of the rules contained therein. These principles are covered by clauses a)—b ) para. 1 of Article 38 and, consequently, clause c) cannot relate to them. In the past, the international courts in taking their decisions, basing themselves on the customary law used to rely on various principles of the national law, in cases where the rules of international law offered an insufficient basis for a reassuring decision. Such principles were to be discovered aliko in the municipal legal systems of the majority of states. It is to these principles that tho clause under discussion of the Statute alludes thus making the old customary rule a part of the written international law. Albeit the internal legal principles of the states having different systems considerably differ from one another, notwithstanding we find among them such which, in their outward appoarance, are identical or at least similar. The principles of the national legal systems are not sources of international law. They are only absorbed as a consequence of lasting practical application by the international customary law and so they become part of international law. Their role is to technically develop the international law by forming now, more differentiated customary legal rules. I. The question of the general principles of law occupies an important place in recent literature of international law. "The general principles of law — as stated recently by a Western scientific work — are the most contested legal source of law among the various sources of international law and, accordingly, of the general international law as well."1 The problem is not only 1 BIN CHENG, General Principles oj Law as Applied by International Courts and Tribunals, London, Stevens, 1953.