In the Latvian discourse of the theory of law and legal practice, there is a set of influential ideas that constitute a theory of general principles of law. This article aims to offer some critical ...remarks on the aforementioned theory and to explore some resulting methodological implications. In this article, two main research methods are used: the descriptive and the deductive methods. The examination of the theory resulted in the conclusion that it is self-contradictory to assert that the basic norm (a democratic state based on the Rule of Law) can determine the entire content of the legal system. Following are some methodological implications: First, instead of asserting that all legal methods are general principles of law, one should adopt a more general norm that is flexible enough and avoids contradictions between different obligations to use legal methods, i.e. the principle of reasonable application of legal norms. Second, the interpretation of written legal norms and the concretisation of unwritten ones cannot coexist if the basic norm determines the entire content of the legal system because of the postulate which asserts that writing down unwritten legal norms in a normative act does not change its unwritten nature.
In the work of the International Law Commission (ILC) on ‘the general principles of law’ in Article 38(1)(c) of the Statute of the International Court of Justice, one question has given rise to an ...inordinate amount of controversy: does this category of principles include principles formed within the international legal system or does it embrace only principles derived from national legal systems? In the draft conclusions adopted on first reading in 2023, the ILC accepts the existence of general principles of law formed within the international legal system, but only in a very narrow manner. Prominent commentators have argued that such a narrow approach is correct. It has been contended, furthermore, that the category of general principles of law formed within the international legal system is an innovation of the ILC's, and one that lacks any real support in State practice. These views are based on assumptions to the effect that the traditional view concerning the meaning of Article 38(1)(c) was that it referred only to general principles of law derived from national legal systems. The present article takes issue with these assumptions. It seeks to prove, by an analysis of the position in 1920 when the Statute was drafted, of the practice of States, both before and after 1920, and the writings of leading commentators, that general principles of law formed within the international legal system are no less part of ‘general principles of law’ than general principles of law derived from national legal systems.
A central controversy relating to the UN International Law Commission’s ongoing project “General Principles of Law” is whether general principles of law “formed within the international legal system” ...could be regarded as part of Article 38(1)(c) of the Statute of the International Court of Justice (ICJ), which provides that the ICJ shall apply “the general principles of law recognized by civilized nations” in its decisions. This article examines the matter from a law of the sea perspective. Based on a comprehensive review of international judicial practice relating to law of the sea issues as well as the travaux préparatoires of the ICJ Statute, it is found that there is insufficient support for the inclusion of general principles of international law into the category of ‘general principles of law’ under Article 38(1)(c). From a lex ferenda perspective, however, instead of insisting on the two elements for the formation of customs which are rarely followed in judicial practice, it seems better to recognize that general principles of international law are part of general principles of law and endeavor to find consensus on the meaning of “recognition” under Article 38(1)(c).
Fragmentation is out; general principles are in. After years of work on fragmentation, the International Law Commission (ILC) has concluded that international law is a legal system with ...interconnected norms. The ILC has now shifted its focus to the general principles of law. These principles are a wellspring of rights and obligations, help interpret sources, and guide legal reasoning. This paper focuses on the latter function; it argues that a framework of legal principles can contribute to the consistency of international law as the legal system par excellence for a globalised world. This manuscript begins by outlining how fragmentation is a paradox of globalisation and presenting the prevailing systemic view of international law. The paper then presents a reason-based scheme for reasoning with norms. It finishes by advocating for a framework of principles for legal consistency.
En los últimos años varios tribunales arbitrales del CIADI se han pronunciado sobre una posible facultad de reconsideración de las decisiones preliminares dictadas en los procedimientos que se ...bifurcan o trifurcan (jurisdicción, fondo y determinación de la indemnización). La práctica arbitral más reciente, apartándose de la línea marcada en los primeros casos, se ha inclinado por reconocer esta facultad. Las diferentes interpretaciones que han realizado estos tribunales sobre el principio de cosa juzgada y sobre los poderes inherentes que puede poseer un órgano arbitral inducen a reflexionar sobre dos cuestiones principales; primera, las implicaciones que tiene la consolidación de una facultad de reconsideración para el actual sistema de recursos previstos en la normativa CIADI; y, segunda, con carácter más general, sobre los problemas de coherencia en el seno del sistema CIADI y las relaciones entre este y el DI general.
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