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General Principles as a Source of International Law: Art 38(1)(c) of the Statute of the International Court of Justice


ISBN13: 9781509936069
Published: February 2021
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £85.00



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This book provides a comprehensive analysis of an often neglected, misunderstood and maligned source of international law. Article 38(1)(c) of the Statute of the International Court of Justice sets out that the Court will apply the 'general principles of law recognized by civilized nations'. This source is variously lauded and criticised: held up as a panacea to all international law woes or denied even normative validity. The contrasting views and treatments of General Principles stem from a lack of a model of the source itself. This book provides that model, offering a new and rigorous understanding of Article 38(1)(c) that will be of immense value to scholars and practitioners of international law alike.

At the heart of the book is a new tetrahedral framework of analysis - looking to function, type, methodology and jurisprudential legitimacy. Adopting an historical approach, the book traces the development of the source from 1875 to 2019, encompassing jurisprudence of the Permanent Court of International Justice and the International Court of Justice as well as cases from international criminal tribunals, the International Criminal Court and the World Trade Organisation. The book argues for precision in identifying cases that actually apply General Principles, and builds upon these 'proper use' cases to advance a comprehensive model of General Principles, advocating for a global approach to the methodology of the source.

Subjects:
Public International Law, International Criminal Law
Contents:
Introduction
1. A Framework for Analysing General Principles
I. Introduction: A Tetrahedral Framework
II. Jurisprudential Legitimacy: A Brief Consideration of Positivism and Natural Law
III. Function: A Binding Source of International Law?
IV. Type
V. Methodology
VI. Conclusion
2. History of Article 38(1)(c)
I. Introduction
II. Development Pre-World War I
III. Development Post-World War I
IV. Article 38(1)(c) and the PCIJ
V. Conclusion: Applying the Tetrahedral Framework
3. Consideration of Article 38(1)(c) by the PCIJ
I. Introduction: Separating the Wheat from the Chaff
II. Cases in Chronological Order
4. Development of Article 38(1)(c): 1945–91
I. Introduction
II. Historical Development: PCIJ to ICJ
III. Cases
IV. Conclusion
5. Development of Article 38(1)(c) by the ICJ: 1992–2019
I. Introduction
II. Cases (Except for the Separate and Dissenting Opinions of Judges Weeramantry and Cançado Trindade)
III. Contributions of Judge Weeramantry
IV. Contributions of Judge Cançado-Trindade
V. Conclusion
6. General Principles in Other Courts and Tribunals
I. Introduction
II. International Criminal Tribunals
III. International Economic Law
IV. International Tribunal for the Law of the Sea
V. Regional Bodies
VI. Conclusion
7. Commentary in Context
I. Article 38(1)(c) as a Norm-Creating Source of International Law
II. The Rule/Principle Distinction
III. Judicial Discretion
IV. Where are General Principles Drawn From?
V. Content of General Principles
8. Global General Principles
I. Types of Legal Systems
II. Perspectives on General Principles
III. The Comparativist's Warning
IV. Global General Principles in the Information Age
9. A Model of General Principles
I. A Tale of Two Sources: Illegitimate Duality
II. General Principles and Legitimate Duality
III. The Future of General Principles

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