This monograph is undoubtedly a very interesting and scholarly study on general principles of law as relied upon by the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) in their decisions between 1922 and 2018. The book of Dr Marija Đorđeska is a very timely addition to the debate on general principles of law in light of the International Law Commission’s recently initiated project on general principles of law (with Marcelo Vázquez-Bermúdez acting as Special Rapporteur). The First Report of the Special Rapporteur was just submitted.1
This study is very erudite and the author presents an in-depth analysis of theoretical questions pertaining to general principles. I found particularly interesting a historical background of general principles of law, as reflected by discussions within the Committee of Jurists during their work on the drafting of the PCIJ Statute. The original contribution of Dr Đorđeska to the question of general principles of law as applied by the ICJ and the PCIJ is the introduction of so-called the ‘Cube’, which is a visual way of categorising and ascertaining general principles, its sides representing the six characteristics each general principle may have. She identified three types of general principles: substantive, procedural and interpretative, which may have one, two or even three underpinnings: domestic, international and judicial.
The author’s research presented in this book has led to at times to unexpected conclusions that are at times contrary to the overwhelming agreement among scholars, for example, that general principles derive from domestic legal systems and that the Court referred to domestic laws in very few decisions. Dr Đorđeska is of the view that ‘[b]y omitting to include any reference to domestic law in the text of its decisions, the Court chose not to attach domestic underpinning to those general principles (and other norms) it considered, although they may well have been derived from domestic law’ (see Conclusion). She explains that the debate whether the expression ‘general principles of law’ in Article 38(1)(c) formulation refers to domestic or international law is irrelevant. According to the author of the book, all general principles, regardless of their underpinning, when applied by the Court become norms of international law.
She concludes that notwithstanding whatever their underpinning general principles are norms of international law. This is a very interesting conclusion, which may lead to a robust debate. Dr Đorđeska has presented an interesting insight into, in my view, still unresolved question of the relationship between customary international law and general principles in practice of the ICJ and the PCIJ. In general, she found out that although the general principles feature prominently in the ICJ’s jurisprudence, the Court’s reliance on general principles is decreasing. She also suggests reformulation of the definition of general principles in Article 38(1) (c) of the ICJ Statute, which she finds archaic, to reflect better their legal content. She proposes ‘the legal principles and rules recognised by the Court for the entire international community’ or ‘norms ascertained by the Court’, to indicate that Article 38(1)(c) encompasses two modalities of norms – both ‘principles’ and ‘rules’. Of course, she is aware that such a radical change seems to be highly unlikely, nonetheless a clearer definition, according to the author, would be advisable.
I highly recommend this monograph, which in my view, is a very scholarly study, which has contributed greatly to the ongoing discussion on general principles of law and to their further understanding.
London, 27 May 2019