The Concept of General Principles of Law Situated Within the Framework of Obligation and the Framework of Authorization
The concept of general principles of law is traditionally conceived as a supplementary source of public international law, enabling the PCIJ and the ICJ to settle a dispute between States in the eventuality of the absence of an applicable rule of conventional international law or customary international law applicable. The category of general principles of law was included in the Statute of the PCIJ and retained in the Statute of the ICJ, in other words, so as to enable the Court to avoid having to pronounce non liquet. Because it was also deemed desirable to limit the discretion of the Court in this respect, it was suggested that the Court should draw these general principles of law from the internal law of the members of international society. This historical background will be described in Sect. 8.2. Section 8.3 will then outline how this link between the concept of general principles of law and the internal law of States turned the question of the use of general principles of law into the question of the appropriateness of the transposition of a general principle of the internal law of the members of international society to the international plane. In this way, the domestic analogy became central to the concept of general principles of law.