JOBNAME: Brolmnan PAGE: 1 SESS: 4 OUTPUT: Wed Feb 10 12:15:15 2016 8. Relying on general principles in international law Beatrice I. Bonafé and Paolo Palchetti * 1. INTRODUCTION: GENERAL PRINCIPLES AS A SOURCE OF INTERNATIONAL LAW International practice – particularly judicial practice – offers many illustrations of the well-established place of general principles among the sources of international law. A number of statutes establishing international tribunals refer to general principles as part of the law to be applied by these tribunals in the discharge of their functions. In this respect, article 38 (1)(c) of the Statute of the International Court of Justice (hereinafter ‘ICJ’) and article 21 (1)(b) and (c) of the Statute of the International Criminal Court are only the most well-known examples. 1 In many cases, international judges have resorted to this method of lawmaking in the absence of any reference to it in the rules governing their activity – a clear indicator of the autonomy of general principles as a source of international law. 2 Finally, while a complete study on the use of general principles in inter-state practice is still lacking, 3 there are instances of practice – particularly judgments of domestic courts – where reference has been made to this source of international law. 4 * This study is the result of long discussions and a joint work between the two authors. However, Beatrice I Bonafé is the author of sections 2 and 4, and Paolo Palchetti wrote sections 1, 3, 5 and 6. 1 Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) (as annexed to the Charter of the United Nations (26 June 1945) 1 UNTS xvi) refers to ‘the general principles of law recognized by civilized nations’. Article 21(1)(b) of the Statute of the International Criminal Court (adopted 17 July 1998; entered into force 1 July 2002; 2187 UNTS 3) provides that the International Criminal Court must apply ‘principles and rules of international law’, while in point (c) reference is made to ‘general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’. 2 One may mention, for instance, the practice of arbitral tribunals dealing with investment disputes. On this practice, P Weil, ‘Principes généraux du droit et contrats d’Etat’ in P Fouchard ao (eds), Le droit des relations économiques internationales. Etudes offertes à Berthold Goldman (Litec 1982) 387. 3 In his foreword to Cheng’s book (General Principles of Law as Applied by International Courts and Tribunals (Stevens 1953), later reprinted (CUP 2006), G Schwarzenberger observed that a work on the use of general principles at the international level ‘could, and should be, undertaken in the field of State practice, as yet so largely unexplored’ (at xii). After 60 years, the field remains to a great extent unexplored. 4 See eg De Guglielmi v Germany, Torino Court of Appeal, Judgment of 19 May 2010 ILDC 1784 (IT-2010). 160 Columns Design XML Ltd / Job: Brolman-Research_Handbook_theory_and_practice_international_lawmaking / Division: 14_Chapter8 /Pg. Position: 1/ Date: 8/2