13th Biennial Meeting - Penn State Law

TEXAS INTERNATIONAL LAW JOURNAL
VOL. 42:371
connotation, whereas our previous discussion of principles was more generic. In
light of the overall topic of this paper, both aspects should be covered and brought
together in an attempt to define the role and status of the principle of
proportionality in the WTO legal order.
General principles are a well-known and yet somewhat vague concept in public
international law. 46 Article 38(1)(c) of the Statute of the International Court of
Justice (ICJ) lists "general principles of law" as one of the sources of international
law. In international law, principles play an important role in filling the gaps left by
the international legal order and to avoid a non liquet in rulings by international
judges. 4 ' Furthermore, they are crucial for international tribunals which may refer to
general principles to justify their own decisions, because they provide a conceptual
background for the interpretation of the law and state practice. 49 The openness of
principles to public and legal discourse is reflected in the fact that they help the
judiciary construe the law "in a dynamic fashion responsive to today's problems." 5
In cases of conflict between general principles and other specific norms of
international law (treaties or customs), the norms will generally prevail." In the
context of WTO law, "a principle could not be used with the effect of overriding a
specific rule contained in the WTO agreements. 5 2 General principles only have a
subsidiary function in the international legal order.
General principles may originate from different sources. Some principles may
be derived from domestic law, from which they are borrowed and distilled on a
comparative basis. 3 On the other hand, general principles of international law are
unique to international law, even though they mostly overlap with the general
principles of law recognized by Article 38 of the Statute of the ICJ. One standard
textbook definition of general principles of international law is that they are
"primarily abstractions from a mass of rules and have been so long and so generally
accepted as to be no longer directly connected with state practice.""
Examples of general principles, which may be either procedural or substantive
in nature, are the following: pacta sunt servanda, principles governing the judicial
process, res judicata, and the principles of equity, good faith, equality of states,
interpretation, right to self-defense, and right to independence. 5 It has been argued
that proportionality is also characterized as a general principle of international law,
with its own foundations in the international legal order. 56
46. In EC law, general principles provide guidance for the interpretation of primary and secondary
Community law and the exercise of powers by the institutions, and determine the legality of acts of the
Community institutions and the member states, and, finally, fill gaps where lacunae exist in Community
law. With regard to the principle of proportionality, see EMILIOU, supra note 12, at 121.
47. Statute of the International Court of Justice art. 38(1)(c).
48. JOOST PAUWELYN, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW: How WTO LAW
RELATES TO OTHER RULES OF INTERNATIONAL LAW 129 (2003).
49. PIERRE-MARIE Dupuy, DROIT INTERNATIONAL PUBLIC 303 (4th ed. 1998).
50. PAUWELYN, supra note 48, at 130.
51. Principles that are jus cogens are an exception.. See Hilf, supra note 11, at 128.
52. Id.
53. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 16-18 (6th ed. 2003).
54. Id. at 18-19 (emphasis omitted).
55. PAUWELYN, supra note 48, at 125-126.
56. Riccardo Mazzeschi, Book Review, 13 EURO. J. INT'L L. 1031, 1035 (2002) (reviewing ENZO
CANNIZZARO, IL PRINCIPIO DELLA PROPORZIONALITA NELL'ORDINAMENTO INTERNAZIONALE [THE
PRINCIPLE OF PROPORTIONALITY IN INTERNATIONAL LAW] (2000)).
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