General principles of law are frequently ranked among the most controversial categories of the doctrine of sources of international law. Nearly each and every important parameter of these principles has induced prolonged and intense academic debates ever since the advisory committee of distinguished jurists entrusted with the preparation of a report on the Statute of the Permanent Court of International Justice decided nine decades ago to include “the general principles of law recognized by civilized nations” in the enumeration of sources that would be applied by the future judicial body.2 In the spirit of expediency and positive experiences, a quarter-century later the drafters of the Statute of the International Court of Justice took over from the preceding document the provision on applicable sources in an identical shape, save for a minor specifying addendum.3 Given that the academic discussion persevered into the period of contemporary international law, it remains a matter of debate whether general principles of law form part of positive law or natural law, originate from domestic law or international law, carry a distinctively private law or public law content, possess a subsidiary or supreme character, qualify as an independent source of international law, and occupy a separate, if any, position in the international legal order. Finally, the methods and conditions of their international applicability likewise yield much disagreement in the scholarly community.4 The present study seeks to examine whether general principles of law constitute a source of international law based on the assumption that these
1 Associate professor, vice-dean for academic affairs, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences, Győr. Senior research fellow, executive director, Institute for Legal Studies of the Hungarian Academy of Sciences, Budapest. E-mail: gabor.sulyok@
hotmail.com
2 Statute of the Permanent Court of International Justice, Article 38, paragraph 3. Promulgated in Hungary by Act No. I of 1926.
3 Statute of the International Court of Justice, Article 38, paragraph 1, sub-paragraph c).
Promulgated in Hungary by Law-Decree No. 18 of 1974.
4 BIN CHENG: General Principles of Law, as Applied by International Courts and Tribunals.
Reprint. Cambridge: Cambridge University Press, 1994. 2–5.
rules belong to the domain of positive law and have their origins in national legal systems.
I.
Even though the extensive debate on the legal nature of general principles of law recognized by civilized nations evolved only after the adoption of the Statute of the Permanent Court of International Justice, representatives of legal doctrine had shown great interest in the interaction of international law and national legal systems as early as in the fi rst half of the 19th century. Writings of contemporaneous publicists examined, for example, the relationship of international law and domestic law, the effects of domestic law on the development of international law as well as the value of certain municipal laws and regulations concerning the international conduct of states as potential sources of international law – a topic that requires closer scrutiny for our investigation. Notwithstanding that these scientifi c treatises, as “subsidiary means for the determination of rules of law”,5 offer an obvious point of departure in a quest to understand the role played by provisions originating from domestic law in traditional international law, it needs to be noted at the outset that the exploration of former state of affairs is an extremely complicated task in this case.First and foremost, considerable diffi culties are caused by the numerous layers of meaning and inconsistent application of the expression
“source of law”, as a result of which the borders between sources, causes and evidences of international law become all too often indistinct. The following critical remarks, made by a prestigious scholar of that period, clearly indicate the gravity of the problem:
“[T]he term »source of law« is made use of in different meanings by the different writers on International Law. It seems to me that most writers confound the conception of »source« with that of »cause«, and through this mistake come to a standpoint from which certain factors which infl uence the
5 Both Article 38, paragraph 4, of the Statute of the Permanent Court of International Justice and Article 38, paragraph 1, sub-paragraph d) of the Statute of the International Court of Justice label the teachings of the most highly qualifi ed publicists “as subsidiary means for the determination of rules of law”. The Supreme Court of the United States had earlier pronounced in a similar manner. The Paquete Habana, 175 U.S. 700 (1900). Selected scholarly writings were used as quasi sources of law in the period of traditional international law. In the 1860s, for example, the Chinese Government offi cially adopted the translation of a famous treatise by Henry Wheaton and instructed authorities dealing with foreigners to apply it. CSARADA, JÁNOS: A nemzetközi jog története a legrégibb időktől a vesztfáli békéig, tekintettel Magyarország nemzetközi viszonyaira a középkorban. [The History of International Law from Ancient Times to the Peace of Westphalia, With Regard to the International Relations of Hungary in the Middle Ages] Budapest: Eggenberger-féle Könyvkereskedés, 1894. 22–23.
growth of International Law appear as sources of rules of the Law of Nations.”6 The situation is further aggravated by the fact that the literature of traditional international law attributed different signifi cance to the gradually diminishing rules of natural law: some publicists defi ned international law as the law of nature realized in the relations of sovereign states, others professed the parallel existence of natural law and positive international law, and still others expressly denied the raison d’être of natural law and heralded the exclusive domination of positive international law. Representatives of these schools of thought evidently approached both the system of sources of international law and the question of international application of domestic legal rules in a divergent manner.
Finally, the most formidable obstacle in the way of synthesization of erstwhile views is the vagueness, overlapping and disturbingly chaotic literary portrayal of boundaries and contents of sources of law and other relevant legal categories.
Hence an analysis focusing on the position assumed in international law by provisions originating from domestic law unavoidably brings in scope various principles of natural law, morality and religion, rules of customary law, judicial decisions, cases of analogy, surviving elements of Roman Law, municipal laws and regulations concerning the international conduct of states as well as fi elds and products of parallel domestic law-making (Parallelgesetzgebung).
Notwithstanding these diffi culties, the formulation of a few general conclusions seems to be possible.
It may be observed that until the end of the 19th century, a signifi cant proportion of scholars of traditional international law, apart from a few exceptions,7 considered municipal laws and regulations exerting, on account of their subject, substantial infl uence on international relations as a source of international law.8
6 LASSA OPPENHEIM: International Law: A Treatise. Vol. I. London–New York–Bombay: Longmans, Green, and Co., 1905. 20. In a similar manner, see, CHARLES G. FENWICK: International Law.
London: George Allen & Unwin Ltd., 1924. 61.
7 HENRY BONFILS: Manuel de droit international public (Droit des gens). Paris: Arthur Rousseau, 1894. 28–29; FRANTZ DESPAGNET: Cours de droit international public. Paris: L. Larose, 1894.
70–71; RICHARD WILDMAN: Institutes of International Law. Vol. I. London: William Benning &
Co., 1849. 1–2, 20.
8 JOHANN C. BLUNTSCHLI: Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt. Nördlingen: Druck und Verlag der C. H. Beck’schen Buchhandlung, 1868. 58–59;
CARLOS CALVO [Charles]: Le droit international théorique et pratique, précédé d’un exposé historique des progrès de la science du droit des gens. Quatrième édition, revue et complétée.
Tome I. Paris – Berlin: Guillaumin et Cie. – Puttkammer et Mühlbrecht, 1887. 161–162;
PASQUALE FIORE: Nouveau droit international public, suivant les besoins de la civilisation moderne. Deuxième édition. (Charles Antoine trad.) Tome I. Paris: G. Pedone–Lauriel, 1885. 158–159.; HENRY W. HALLECK: International Law, or Rules Regulating the Intercourse of States in Peace and War. San Francisco: H. H. Bancroft & Co., 1861. 57–58; FRANZVON
HOLZENDORFF – ALPHONSE RIVIER: Introduction au droit des gens: recherches philosophiques, historiques et bibliographiques. Edition française. Hamburg: Verlagsanstalt und Druckerei A. G., 1889. 83.; THOMAS J. LAWRENCE: The Principles of International Law. Boston: D. C.
Thus various rules established by civilized states, primarily by former great powers, pertaining to the treatment of aliens, international trade, diplomatic and consular intercourse, use of international rivers, navigation on the seas, jurisdiction of prize courts, or neutrality in war often appeared as sources of the law of nations. These provisions were in part elevated to the international level as a result of parallel domestic law-making governing the same subject-matter.
Several enactments, however, gained international recognition in absence of analogous national legislative acts, owing solely to their specifi c content, as illustrated by the Law of Guarantees adopted by the Kingdom of Italy to settle the status of and relations with the Holy See.9
Even though these municipal laws and regulations are only associated indirectly with the topic of general principles of law, their categorization as a source of law is of utmost importance, since it indicates the conviction of traditional legal doctrine that international law, regardless of its special scope and characteristics, may and does draw on the technically more advanced national legal systems. The category of parallel domestic law-making is especially noteworthy in this regard due to its rationale, which clearly corresponds to the logic behind the international application of general principles of law recognized by civilized nations.
It needs to be added that the notion of principle of law also emerged in treatises published during the 19th century, albeit in a fairly indistinct manner: in line with the context, it belonged either to the domain of natural law or positive law, and referred either to a particular rule of conduct or an abstract principle underlying concrete legal norms or the causes and foundations of international law itself. Nonetheless, it should be noted that selected authors recognized the international relevance and nature of principles derived from Roman Law or domestic law as a source of international law either explicitly or implicitly, by including analogy in the enumeration of sources of law.10 That recognition was refl ected by the practice of international courts of arbitration and other judicial bodies, which habitually applied rules originating from domestic law in order to resolve disputes submitted to them.11 Given that the judgments of
Heath and Co., 1895. 105–106; FEDOR F. MARTENS: Traité de droit international. (Alfred Léo trad.) Paris: A. Chevalier-Marescq, 1883. 252–253.; PAUL L. E. PRADIER-FODÉRÉ: Traité de droit international public européen & américain, suivant les progrès de la science et de la pratique contemporaines. Tome I. Paris: G. Pedone-Lauriel, 1885. 88–89.; HENRY WHEATON: Elements of International Law, with a Sketch of the History of the Science. Philadelphia: Carey, Lea &
Blanchard, 1836. 49.
9 Legge delle Guarentigie, n. 214, 13 maggio 1871.
10 CALVO op. cit. 165.; HALLECK op. cit. 55–57.; PRADIER-FODÉRÉ op. cit. 89. See also, ROBERT
PHILLIMORE: Commentaries upon International Law. Vol. I. Philadelphia: T. & J. W. Johnson, 1854. 66–69.
11 For a few examples, see, FABIÁN O. RAIMONDO: General Principles of Law in the Decisions of
these bodies were classifi ed as a source of law by a number of contemporaneous textbooks, certain provisions of domestic law could have penetrated the system of international law through judicial decisions, as well.
The general opinion perceptibly changed at the turn of the 19th and 20th centuries. Writings of international lawyers published between the beginning of the 20th century and the end of the Second World War reveal a completely different picture as regards the international treatment of provisions originating from domestic law. The overwhelming majority of literary works in those decades did no longer categorize the aforementioned rules of national legal systems as a source of international law, and devoted at best a few remarks to them on the subject of evidences of customary law.12 Therefore, the community of scholars, who considered the products of parallel domestic law-making and other municipal laws and regulations concerning the international conduct of states as a source of international law, basically vanished – their place was taken over by an initially diminutive group of authors, who advocated that general principles of law, as contained in the Statute of the Permanent Court of International Justice, constitute an independent source of law.13
This phenomenon can be explained by both practical and theoretical reasons.
It is conceivable that the change occurred in the wake of a redistribution of power generated by the combined effects of the antecedents and consequences
International Criminal Courts and Tribunals. Leiden – Boston: Martinus Nijhoff Publishers, 2008. 8. et seq. On the history of international judicial bodies, see, LAMM, VANDA: Az államok közötti viták bírói rendezésének története. [The History of Judicial Settlement of Disputes between States] Budapest: Akadémiai Kiadó, 1990.
12 PAUL FAUCHILLE: Traité de droit international public. Huitième édition, entièrement refondue, complétée et mise au courant, du Manuel de droit international public de M. Henry Bonfi ls.
Tome I. Paris: Rousseau et Cie., 1922. 41., 48–49.; FENWICK op. cit. 62.; WILLIAM E. HALL: A Treatise on International Law. Eighth edition. (A. Pearce Higgins ed.) Oxford: Clarendon Press, 1924. 5.; FRANZVON LISZT: Das Völkerrecht systematisch dargestellt. Siebente Aufl age.
Berlin: Verlag von O. Häring, 1911. 11–12.; KARL MELCZER: Grundzüge des Völkerrechts, unter Berücksichtigung der Friedensverträge für Studienzwecke zusammengestellt. Wien–Leipzig:
Verlag Carl Wilhelm Stern, 1922. 21–22.; OPPENHEIM op. cit. 24.; KARL STRUPP: Grundzüge des positiven Völkerrechts. Dritte, völlig neubearbeitete Aufl age. Bonn: Ludwig Röhrscheid Verlag, 1926. 8., 10.; JOHN WESTLAKE: International Law. Part I. Cambridge: University Press, 1904. 14., 16.
13 EDWIN M. BORCHARD: The Theory and Sources of International Law. In Recueil d’études sur les sources du droit en l’honneur de François Gény. Tome III. Paris: Librairie du Recueil Sirey, 1934. 354–356.; LOUIS LE FUR: La coutume et les principes généraux du droit comme sources du droit international public. ibid. 366–372.; ALFRED VERDROSS: Les principes généraux du droit comme source du droit des gens. ibid. 383–386.; CHARLESDE VISSCHER: Contribution à l’étude des sources des droit international, ibid. 395–398. See also, HERSCH LAUTERPACHT: Private Law Sources and Analogies of International Law, with Special Reference to International Arbitration. London: Longmans, Green, and Co., 1927. 69–71. For the attitude of states, see, JAMES B. SCOTT (ed.): The Proceedings of the Hague Peace Conferences: The Conference of 1907. Vol. I. New York: Oxford University Press, 1920. 351.
of the First World War. Great powers of the 19th century may have possessed suffi cient authority to induce the international community to recognize products of their domestic law-making pertaining to international relations as a regulatory model or even as a source of law. That authority, however, came to an end with the confrontation of great powers and the ensuing rearrangement of international infl uence, hence municipal laws were degraded to mere facts from the standpoint of international law.14 Provisions of domestic law remained relevant for international law in a single case only: if they were generally established in and recognized by the legal systems of members of the international community. Still it is most likely that this development was accompanied by a fundamental alteration of academic attitude, as well.
The “abandonment” of domestic law may have been prompted by the monism-dualism debate, which surfaced around the end of the 19th century concerning the relationship of international law and domestic law. It is common knowledge that Heinrich Triepel, the principal proponent of the dualistic school of thought, published his famous work entitled “Völkerrecht und Landesrecht”
in the last year of that century, and described international law and domestic law as distinct legal systems – two circles that at most touch one another, but never overlap.15 Thus international legal norms may produce an effect in domestic law only if states receive and incorporate them into their respective legal systems by means of a special process called transformation. Nevertheless, it is much less known that the renowned scholar also examined the possibility of admission of domestic rules in international law in a separate chapter, as a result of which he completely ruled out the reception of public law, and expressed serious doubts regarding the reception of private law. He acknowledged, on the other hand, the existence and necessity of “empty” international provisions that, without carrying out an actual reception, simply refer to the content of certain domestic rules with a view to specify and supplement the vague and sporadic system of international law.16
Bearing all this in mind, it may appear that the spreading of the negative position regarding the international relevance of provisions originating from domestic law can be attributed to the emergence and gradual dissemination of the dualistic theory. However, the plausibility of this assertion is greatly undermined by the fact that the alteration of academic attitude involved not only continental, primarily French, German and Italian authors, who actively participated in the developing monism-dualism debate, but also “Anglo-Saxon” publicists, who originally followed the discussion with rather moderate
14 German Interests in Polish Upper Silezia (Germany v. Poland), Judgment No. 7., 25 May 1926.
P.C.I.J. Series A, No. 7., 19.
15 HEINRICH TRIEPEL: Völkerrecht und Landesrecht. Leipzig: Verlag von C. L. Hirschfeld, 1899. 111.
16 TRIEPEL op. cit. 211–225., 230.
attention.17 Consequently, the phenomenon under consideration must have been caused by another, more profound change: the complete marginalization of natural law thinking and the consolidation of a purely positivist international legal theory.
It is mainly due to this cause that strong national tendencies cannot be discovered in traditional international law regarding the question whether parallel domestic law-making and other municipal laws and regulations concerning the international conduct of states, and later the general principles of law, constitute a source of international law – a positive or negative answer was primarily determined by the overall perception of the nature of international law and the naturalist or positivist approach of each author. (Traditional Hungarian legal doctrine, which conventionally followed the German example, was likewise divided.18) Just as everywhere else, exceptions can certainly be come across.
Nevertheless, the previous statement is excellently illustrated by the attitude of extreme positivists, who were disinclined to take general principles of law into consideration even after the Statute of the Permanent Court of International Justice expressly sanctioned their application.19
17 An authoritative English opinion later stated that “the entire monist-dualist controversy is unreal, artifi cial and strictly beside the point”. SIR GERALD FITZMAURICE: The General Principles of International Law Considered from the Standpoint of the Rule of Law. Recueil des Cours, Tome 92. (1957–II), 71.
18 Several authors considered municipal laws and regulations concerning the international conduct of states as an independent source of law. APÁTHY, ISTVÁN: Tételes európai nemzetközi jog.
[Positive European International Law] Second, fully modifi ed and expanded edition. Budapest:
Franklin-Társulat, 1888. 31.; CSARADA op. cit. 34–35.; KISS, ISTVÁN: Európai nemzetközi jog.
[European International Law] Eger: Érsek-Lyceumi Kő- és Könyvnyomda, 1876. 49.; TASSY, PÁL: Az európai nemzetközi jog vezérfonala. [The Fundamental Line of European International Law] Kecskemét: Scheiber József könyvkereskedő, 1887. 9.; TEGHZE, GYULA: Nemzetközi jog.
[International Law] Debrecen: Városi Nyomda, 1930. 27., 32. Others held that the products of parallel domestic law-making, municipal laws and regulations concerning the international conduct of states and general principles of law merely refl ected customary law, but did not constitute an independent source of law. FALUHELYI, FERENC: Államközi jog. [Interstate Law]
Vol. I. Pécs: Dr. Karl Könyvesbolt Kiadása, 1936. 14.; IRK, ALBERT: Bevezetés az új nemzetközi jogba. [Introduction to the New International Law] Second edition. [Unknown]: Danubia Kiadás, 1929. 11.; WENINGER, VINCZE L.: Az uj nemzetközi jog. [The New International Law]
Vol. I. Pécs: Dr. Karl Könyvesbolt Kiadása, 1936. 14.; IRK, ALBERT: Bevezetés az új nemzetközi jogba. [Introduction to the New International Law] Second edition. [Unknown]: Danubia Kiadás, 1929. 11.; WENINGER, VINCZE L.: Az uj nemzetközi jog. [The New International Law]