Enacting and developing international environmental law - Introduction to International Environmental Law - page 72

praxis between sovereign states in transboundary pollution cases (as no such
practice existed at the time between sovereign states), but based its decision on
the praxis between units of federal states (such as US states or Swiss cantons).
This is one reason why heated discussions on the legal status of the principle
of no-harm continued among academics for decades, until the UN
International Court of Justice confi rmed in 1996 that the principle of no-harm
is legally binding on every state in the world.
General principles of law
Aside from treaty and custom, Article 38 provides for 'general principles of law
recognized by civilized nations' as a formal source of international law. 24 It is,
however, obvious that in practice conventions and customary international
law are actually the most common routes by which states can develop inter-
national law. An indication of this is that even the International Court of
Justice has not once in its decisions referred to the general principles of law
recognized by civilized nations. 25
Another diffi culty in referring to the general principles of law is that there
are several views of how these principles evolve, and what they are. Perhaps
the most widely accepted view is that general principles develop when
national legal systems worldwide adhere to certain principles. Their function
is frequently seen to be to close a gap that might remain uncovered by the
main sources of international law - treaties and customary law - even if
international tribunals do not expressly use general principles of law in their
reasoning.
There is no further explanation of what constitutes the 'civilized nations'
whose recognition decides the development of the general principles of
law. It may appear odd to contemporary readers that the Statute of
the International Court of Justice still refers to 'civilized nations'. The simple
explanation is that the predecessor of the International Court of Justice -
the Permanent Court of International Justice, established in 1922 - was
strongly dominated by European colonial powers and its own statute was the
template on which the Statute of the International Court of Justice was based
in 1945 (still very much a period of colonialism). The reference in the
Statute to 'the general principles of law recognized by civilized nations' was
much criticized when African and Asian nations achieved their independence
through decolonization: the former European colonial powers had justifi ed
the repression of other nations largely by a need to 'civilize' them. The most
widely accepted view today is that principles of law can evolve from
principles of domestic legal systems which are widely recognized across
different kinds of legal systems (such as common law, civil law, religious law)
in multiple continents.
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