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General Principles as a Source of International Law: Art 38(1)(c) of the Statute of the International Court of Justice de Dr Imogen Saunders

General Principles as a Source of International Law: Art 38(1)(c) of the Statute of the International Court of Justice: Studies in International Law

Autor Dr Imogen Saunders
en Limba Engleză Paperback – 19 oct 2022
This book provides a comprehensive analysis of an often neglected, misunderstood and maligned source of international law. Article 38(1)(c) of the Statute of the International Court of Justice sets out that the Court will apply the 'general principles of law recognized by civilized nations'. This source is variously lauded and criticised: held up as a panacea to all international law woes or denied even normative validity. The contrasting views and treatments of General Principles stem from a lack of a model of the source itself. This book provides that model, offering a new and rigorous understanding of Article 38(1)(c) that will be of immense value to scholars and practitioners of international law alike. At the heart of the book is a new tetrahedral framework of analysis - looking to function, type, methodology and jurisprudential legitimacy. Adopting an historical approach, the book traces the development of the source from 1875 to 2019, encompassing jurisprudence of the Permanent Court of International Justice and the International Court of Justice as well as cases from international criminal tribunals, the International Criminal Court and the World Trade Organisation. The book argues for precision in identifying cases that actually apply General Principles, and builds upon these 'proper use' cases to advance a comprehensive model of General Principles, advocating for a global approach to the methodology of the source.
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Specificații

ISBN-13: 9781509946624
ISBN-10: 1509946624
Pagini: 304
Dimensiuni: 156 x 234 mm
Greutate: 0.42 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Seria Studies in International Law

Locul publicării:London, United Kingdom

Caracteristici

Sets out a new model for the General Principles based on historical analysis and contemporary concerns

Notă biografică

Imogen Saunders is Lecturer in Law at the Australian National University, Canberra.

Cuprins

Summary of ContentsIntroduction 1. A Framework for Analysing General Principles I. Introduction: A Tetrahedral Framework II. Jurisprudential Legitimacy: A Brief Consideration of Positivism and Natural Law III. Function: A Binding Source of International Law? IV. Type V. Methodology VI. Conclusion 2. History of Article 38(1)(c) I. Introduction II. Development Pre-World War I III. Development Post-World War I IV. Article 38(1)(c) and the PCIJ V. Conclusion: Applying the Tetrahedral Framework 3. Consideration of Article 38(1)(c) by the PCIJ I. Introduction: Separating the Wheat from the Chaff II. Cases in Chronological Order 4. Development of Article 38(1)(c): 1945-91 I. Introduction II. Historical Development: PCIJ to ICJIII. Cases IV. Conclusion 5. Development of Article 38(1)(c) by the ICJ: 1992-2019 I. Introduction II. Cases (Except for the Separate and Dissenting Opinions of Judges Weeramantry and Cançado Trindade) III. Contributions of Judge Weeramantry IV. Contributions of Judge Cançado-TrindadeV. Conclusion 6. General Principles in Other Courts and Tribunals I. Introduction II. International Criminal Tribunals III. International Economic Law IV. International Tribunal for the Law of the Sea V. Regional Bodies VI. Conclusion 7. Commentary in Context I. Article 38(1)(c) as a Norm-Creating Source of International Law II. The Rule/Principle Distinction III. Judicial Discretion IV. Where are General Principles Drawn From? V. Content of General Principles 8. Global General Principles I. Types of Legal Systems II. Perspectives on General Principles III. The Comparativist's Warning IV. Global General Principles in the Information Age9. A Model of General Principles I. A Tale of Two Sources: Illegitimate Duality II. General Principles and Legitimate Duality III. The Future of General Principles

Recenzii

This is a book that is far, far more than an examination of one paragraph of a section of the Statute of the International Court of Justice. It is a book that examines the very nature of international law and, beyond that, of law itself. It is a stunning work in the finest traditions of the greatest international law thinkers.
In this book, Imogen Saunders takes us on a quest and the whole field benefits as a result. She searches for a better way of explaining what general principles are and how they can be found and justified. She is driven by the questions of why and how, she searches for deeper understanding and coherence. Saunders' explanation meets a need that the field has long felt and is particularly timely given that the ILC has picked up this topic. This book will stand the test of time as an important contribution to any international lawyer's library. Citations to Bin Cheng's famous book on the subject will now need to be matched by citations to Imogen Saunders's book.
It is a truly impressive achievement: it's not only an exhaustive study of the doctrine of general principles in international law but also an ambitious theoretical enterprise.