ABSTRACT
No decision of the Court, or indeed the Permanent Court, has yet been based explicitly upon a principle or rule of law drawn from the ‘general principles of law recognised by civilised nations’ referred to in Article 38, para 1(c) of the Statute.55 It is comparatively rare for a state to base a claim before the Court on such principles, so that it is correspondingly infrequent for the Court to have occasion to refer to them for the purposes of its decision. Even where referred to
something of a makeweight or last resort, a supplementary argument in case the contentions based on customary law or treaties fail to convince: with the result that the Court hardly ever needs to refer to them. On the other hand, individual Members of the Court invoke general principles more frequently: Judge Ammoun was particularly attached to them, though he had strong objections to the use in the Statute of the term ‘civilised nations’. ... It is fairly well established that the general principles contemplated by Article 38, para 1(c) of the Statute are at least primarily those which reveal themselves in the consistent solutions to a particular problem adopted in the various systems of municipal law – what Mr Elihu Root called, during the discussions of the 1920 Committee of Jurists, those which were ‘accepted by all nations in foro domestico’.56 It is necessary, though not always easy, to distinguish these principles from, on the one hand, what Sorensen has called ‘les principes fondamentaux de la structure du droit international’57 ... and from, on the other hand, mere arguments from analogy by reference to institutions or rules found in one or more systems of municipal law. These discussions were the subject of much argument between the parties in the Right of Passage case.58
