The role of international courts in identifying general principles of law recognized by civilized nations

About the author:

Andrew Yu. Klyuchnikov, Cand. Sci. (Jur.), Associate Professor, Associate Professor, Russian Presidential Academy of National Economy and Public Administration (Lipetsk Branch); Judge, Lipetsk Pravoberezhniy District Court; andrew19871961@mail.ru

Abstract:

One of the main tasks of the contemporary international law is constructing a system that ensures its integrity, based on a single system of universally recognized legal principles. Identifying them actively involves international courts.

This study aims to find the main approaches of supranational courts to identify the general principles of law. The study material includes doctrinal comments on judicial practice and decisions of international courts. The author uses comparative legal method when identifying the problematic issues of recognizing general legal principles and their relationship with other sources of international law (international treaties and customs).

The results show that an integral system of principles is created by international courts in the course of law enforcement from the principles in force in the national and international legal acts of different states. The universal nature of legal principles is based on the majority of states’ laws, as identified by international judges. General principles based on international law are binding all states disregarding their recognition as customary or enshrined in the international treaty.

The problem is the approach of international courts, in which there is a narrowing of their jurisdiction and the subsequent refusal to disclose the content of general principles of law. These principles express a general legal opinion defining the boundary of the law-enforcement freedom of international justice.

References:

1. UN International Court of Justice Advisory Opinion of 22 July 2010 “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo”. ICJ Reports, p. 403. [In Russian]
2. Klyuchnikov A. Yu. 2018. “Limits of freedom in the decisions of the international court of justice: its admissibility and legitimacy”. Tyumen State University Herald. Social, Economic, and Law Research, vol. 4, no 2, pp. 150-157. DOI: 10.21684/2411-7897-2018-4-2-150-157 [In Russian]
3. Klyuchnikov A. Yu. 2019. “The boundaries of law enforcement freedom in determining the competence of an international court: problems of terminology”. Rossiyskiy sudya, no 2, pp. 44-46. [In Russian]
4. Kolotova N. V. 2006. “Law and human rights in the context of globalization (scientific conference)”. Gosudarstvo i pravo, no 2, pp. 105-120. [In Russian]
5. Matveeva T. D. 2018. “The principle of territorial integrity in the international legal tools for the peaceful resolution of territorial disputes”. Moskovskiy zhurnal mezhdunarodnogo prava, no 1, pp. 6-15. [In Russian] DOI: 10.24833/0869-0049-2018-1-6-15
6. WTO Appellate Body Report and Panel Report — Action by the Dispute Settlement Body WT/DS33/5 of 27 May 1997 “United States — Measures Affecting the imports of Woven Shirts and Blouses from India”. [In Russian]
7. UN International Court of Justice Judgement of 25 March 1999 “Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, (Preliminary objections) (Cameroon v. Nigeria)”. ICJ Reports, pp. 31, 39. [In Russian]
8. UN International Court of Justice of 16 March 2001 “Maritime Delimitation and territorial questions between Qatar and Bahrain (Merits) (Qatar v. Bahrain)”. ICJ Reports, p. 303. [In Russian]
9. UN International Court of Justice Judgment of 26 February 2007 “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”. ICJ Reports, p. 116. [In Russian]
10. UN International Court of Justice Judgment of 26 February 2007 “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Preliminary objections)”, p. 108. [In Russian]
11. International Criminal Tribunal for the former Yugoslavia Judgement of 2 June 1998 No IT-95-17/1T “Prosecutor v. Anto Furundžija”. [In Russian]
12. International Criminal Tribunal for the former Yugoslavia Judgement of 7 October 1997 No IT-96-22-A “Prosecutor v. Dražen Erdemović”. [In Russian]
13. International Criminal Tribunal for the former Yugoslavia Judgement of 22 February 2001 No IT-96-23-T, IT-96-23/1-T. “Prosecutor v Dragoljub Kunarac”. [In Russian]
14. Syunyaeva M. D. 2012. “Analysis of the decisions and advisory opinions of the International Court of Justice in the context of the issue of the formation of the norms of international customary law”. Vestnik Rossijskogo universiteta druzhby narodov. Seriya: yuridicheskie nauki, no 1, pp. 216-225. [In Russian]
15. Trikoz E. N. 2006. “Crimes against humanity in international criminal law”. Moskovskiy zhurnal mezhdunarodnogo prava, no 2 (62), pp. 100-117. [In Russian]
16. United Nations. 1996. "Charter of the United Nations and Statute of the International Court of Justice (San Francisco, 1945)". In: Deistvuyushchee mezhdunarodnoye pravo. Vol. 1, pp. 7-33. Moscow: Mosckovskiy nezavisimiy institut mezhdunarodnogo prava. [In Russian]
17. Chirkin V. E. 2014. “International, national and constitutional law: direct and feedback”. Proceedings of the Institute of State and Law of the Russian Academy of Sciences, no 6, pp. 35-61. [In Russian]
18. Ellis J. 2011. “General principles and comparative law”. European Journal of International Law, vol. 22, p. 954. DOI: 10.1093/ejil/chr072
19. Raimondo O. F. 2008. General Principles of Law in the Decisions of International Courts and Tribunals. Leiden-Boston. DOI: 10.1163/ej.9789004170476.i-214