General principles of law and a source-based approach to the regulation of international security institutions

Abstract

The traditional role of international security institutions as conceptualised post-Second World War was to maintain and restore international peace and security: security relations between sovereign states. However, as the world has become increasingly globalised, many security issues are of a transnational and international nature, requiring international responses beyond that of nation-states. Because of this, the role of international security institutions has necessarily increased in scope and importance. The question then becomes what law applies to these institutions. Attempts have been made to identify the legitimacy of international institutions, including a ‘common law’ of international institutions and a ‘global administrative law’. However, many of these attempts fail to ground the discussion in the established ‘sources’ of international law, primarily (as will be argued in this chapter) due to the unnecessarily restricted understanding of this legal concept. This chapter argues that Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) – the general principles of law (‘General Principles’) – provides the most relevant norms to assess and regulate international security institutions. The chapter first sets out an understanding of General Principles as a source of international law. Second, it looks to the rule of law issues of international security institutions and explains how the application of General Principles has the potential to extend the idea of the rule of law to the conduct of international security institutions. Third, the chapter looks to three key areas where the General Principles can, and should operate: (1) the formation of international security institutions’ responses to international security threats; (2) the interpretation of the normative documents of international security institutions; and (3) the assessment and review of the actions of international security institutions. In doing so, the chapter presents a source-based approach to determining the rule of law governing international security institutions.