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Non-consensualist norms in the International Court of Justice

Ciaran Burke
European University Institute
Ciaran Burke
European University Institute
Open Panel

Abstract

The International Court of Justice is a principal organ of the United Nations, and still plays an important role in dispute settlement between States, as well as offering Advisory Opinions to, inter alia, the General Assembly. Article 38(1) of the ICJ Statute describes the sources of law available to the Court. This article is also the definitive restatement of the sources of international law. Three principal sources are cited. In addition to treaties, which are an expression of State will simpliciter, customary international law, an expression of general State will combined with shared values, also plays an important role. The third principal source of international law – general principles of law – remains, however, rather obscure and under-studied. Its origins lie purely in shared values (such as good faith) and do not relate to explicit State will. However, the ICJ Statute prescribes normative equality for general principles with treaty and custom. Hence, such norms are important, and occasionally even decisive. This is borne out by the ICJ’s practice which has resorted to usage of general principles, both in judgments and advisory opinions. However, the cleavage from consensualism and towards ‘shared values’ when applying such norms leaves certain States uncomfortable since it is seen to weaken sovereignty. Hence, the Court often applies such principles quietly, even implicitly. My paper will explain the ICJ’s practice in this regard, showing where it has used such norms and the reasoning behind such moves, and why general principles remain both controversial and under-studied, both by lawyers and political scientists.