11 Mich. J. Int'l L. 768 (1989-1990)
Functional Approach to General Principles of International Law, A; Bassiouni, M. Cherif

handle is hein.journals/mjil11 and id is 778 raw text is: A FUNCTIONAL APPROACH TO GENERAL
PRINCIPLES OF INTERNATIONAL LAW
M. Cherif Bassiouni *
INTRODUCTION
General Principles of International Law are among the sources
of national and international law' which have long been recognized
and applied in disputes between States.2 They were embodied in the
Statute of the Permanent Court of International Justice [PCIJ], arti-
cle 38 (I)(3), and in the Statute of the International Court of Justice
[ICJ], article 38 (1)(c), under the terms general principles of law
recognized by civilized nations.3 As discussed below, both the PCIJ
and ICJ have relied on this source.
The terms used to describe this source of international law appear
to posit two separate requirements: one, General Principles, and
two, recognition by civilized nations. With regard to the latter, it
would appear, at least in the post-United Nations Charter era, that a
presumption exists that all Member-States of the United Nations are
civilized.'4 The use of the term General Principles presents more
difficulty.
The writings of scholars and opinions of international and national
tribunals have invariably confirmed that General Principles are,
first, expressions of national legal systems, and, second, expressions of
other unperfected sources of international law enumerated in the stat-
utes of the PCIJ and ICJ; namely, conventions, customs, writings of
scholars, and decisions of the PCIJ and ICJ. It is obvious that if these
legal sources are perfected, they are ipso facto creative of international
legal obligations. When they are not perfected, however, such as when
a custom is not evidenced by sufficient or consistent practice, or when
States express opinio juris without any supportive practice, these man-
* Professor of Law, DePaul University Colllege of Law. The author would like to acknowl-
edge the research assistance of George M. Gullo (J.D. Candidate, DePaul, 1991).
1. See I L. OPPENHEIM, INTERNATIONAL LAW 29-30 (H. Lauterpacht 8th ed. 1955).
2. See infra Section V.
3. STATUTE OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE art. 38(I)(3); STAT-
UTE OF THE INTERNATIONAL COURT OF JUSTICE art. 38(l)(c).
4. This requirement has utility where a given nation, because of peculiar historical circum-
stances, no longer follows its previously civilized system of law, or that of the other civilized
nations.

Purchase Short-Term Access to HeinOnline

Prices starting as low as $29.95

Already a Subscriber?

What Is HeinOnline?

Learn More About the Law Journal Library (pdf)

We also offer annual subscriptions to universities, colleges, law firms, organizations, and other institutions. To request a quote please visit http://home.heinonline.org/subscriptions/request-a-quote/

Please note: the content in the Law Journal Library is constantly changing and some content has restrictions as required per the license. Therefore, please review the available content via the following link to ensure the material you wish to access is included in the database. For a complete list of content included in the Law Journal Library, please view http://www.heinonline.org/HOL/CSV.csv?index=journals&collection=journals