Czy „ogólne zasady prawa uznane przez narody cywilizowane” są źródłem prawa miedzynarodowego publicznego

Abstrakt

When Article 38 of the Statute of the Permanent Court was being drafted, the Commission of Jurists was concerned that in some cases the future Court might find that the issues in dispute before it were not governed by any treaty, and that neither could any established rule of customary law be found to determine them. It was thought undesirable that the Court should be obliged to declare a non liquet – a finding that a particular claim could neither be upheld nor rejected, for lack of any existing applicable rule of law. That was the main reason why the phrase about the general principles was added.

The Court was empowered to apply a third source that was something more than treaties and custom, the general principles of law recognized by civilized nations. However, it could not apply general and vague «principles of objective justice» or «the legal conscience» but only those principles which were clearly laid down in the municipal law systems and could be applied in international law and international relations.

At present it has become apparent that the new areas of international law contained gaps, therefore a third source of international law has been revitalized. This applies to international administrative law, international human rights and the protection of environment. It has particular importance for international criminal law. The recently established ad hoc international criminal tribunals have frequently resorted to general principles of criminal law recognized in the principle legal systems of the world. Also Article 21 of the ICC Statute envisages the possibility that the Court might resort to such a source.

While the Commission of Jurists may have primarily had in mind the legal principles shared by municipal legal orders, the principles to be applied by the Court also include general principles applicable directly to international legal relations - general principles of international law. It seems that M.N. Shaw is right when he states that: «...most writers are prepared to accept that the general principles do constitute a separate source of law but of fairly limited scope, and this is reflected in the decisions of the Permanent Court of International Justice and International Court of Justice». However, it is not clear in all cases, whether it is a general principle of law appearing in municipal systems or a general principle of international law applied.