Analysis of the General Principles of Law of Article 38 of the Statute of the International Court of Justice

Abstract

Article 38 of the Statute of the International Court of Justice provides for the expression of general principles of law as an independent source of international law, which also plays the role of supplementing treaties and international customs, and according to the Statute, general principles of law belong to the category of positive law. Even though some scholars have elaborated on general principles of law, they have misunderstood the concept, legal status and functions of general principles of law, which makes the connotation of general principles of law more ambiguous. Because the general principles of law are derived from the common provisions of the domestic law of each country, there are still questions in the academic circles as to whether the general principles of law belong to the sources of international law. In recent years, there are also scholars who believe that the Statute of the International Court of Justice is old and cannot reflect the new development of international law, and that the general principles of law should be treated as the category of natural law. It is wrong to view general principles of law as a category of natural law, on the contrary, despite the development of international relations, general principles of law play an increasingly important role in new developments in international law, such as human rights, climate change and outer space, etc. Therefore, the definition of general principles of law is not only of great significance to the theory of international law, but also has an immeasurable effect on the practice of international law. General principles of law exist in the legal systems of States, and general principles of law can be used to determine the actual effect of rules of international law. The purpose of this paper is to clarify various aspects of general principles of law on the basis of existing law and practice, and to assist international courts and tribunals in providing guidance for the settlement of international disputes using the sources of general principles of law international law.