Aspectos Generales de los Productos Agrícolas.

It is thus contended that general principles of law are more adequate to define the content of IHRL. It is usually accepted that the principles aimed at by Article 38 are principles existing in domestic legal systems that can be transposed to the international legal order.210 _This source is thus interesting for establishing human rights since they are recognized both in domestic legal systems and at the international level.

The first caveat for human rights as a general principle is that human rights seem to be rights and not principles. Nevertheless, general principles of law identified so far in the case law of international courts and arbitral tribunals Ôinclude, inter alia, the principle of good faith, the obligation to make reparation for international wrongs, the principle of res judicata, the principle

205 _{L. J. Maki, ÔGeneral Principles of Human Rights Law Recognized by All Nations: Freedom from Arbitrary Arrest}

and DetentionÕ (1980)10 California Western International Law Review 276.

206 _{Katanga and Ngudjolo decision of 13 May 2008 (n139) ¤32.} 207 _{Simma and Alston (n39) 107.}

208 _{De Schutters concludes that Ôa more promising normative source of human rights in general public international}

law Ð allowing to impose on international organisations certain human rights obligations Ð is in the general principles of law, also mentioned in Article 38 (1) of the Statute of the International Court of Justice among the sources of international lawÕ (De Schutter (n36) 128).

209 _{H. Hannum, ÔThe Status of the Universal Declaration of Human Rights in National and International LawÕ}

(1995/96)25 Georgia Journal of International and Comparative Law 351.

210 _{See Bassiouni (n28) 769-771, 775-776; Maki (n205) 275; Gradoni, Lewis, MŽgret, Nouwen, David Ohlin,}

Reisinger-Coracini and Zappalˆ (n12) 71; OÕBoyle and Lafferty (n191) 196;

Nonetheless, a minority view regards ÔGeneral PrinciplesÕ merely as a means of assistance in the interpretation and application of conventional and customary law: see Bassiouni (n28) 775-776.

of estoppel, the principle of jus novit curia, equality of the parties to a dispute, the rights of the defence, and respect for fundamental human rightsÕ.211 _{The fact that Ôthe general principles mentioned} in Article 38 ¤1 (c) included the concept of human rights and their protectionÕ was also argued by Judge Tanaka in his dissenting opinion in the South-West Africa case.212 Besides, after having analysed the case law of the ICJ regarding general principles of law, De Schutter concludes that these principles Ôhave been interpreted as implying that human rights should qualify among the latter principles, and thus as forming part of general international lawÕ.213 Likewise, referring to Green who, in 1955, denied the possibility for human rights to qualify as general principle, OÕBoyle and Lafferty concluded that Ôthe practice of the International Court of Justice, the European and Inter-American Courts of Human Rights, and the Court of Justice of the European Union, suggests the contrary is true todayÕ.214 _{It has thus been accepted that human} rights could qualify for being such principles.

Stemming from the use of ÔrecognizedÕ, the second condition for being a general principle is that these principles need to be recognized by the major legal systems of the world.215 As noted by Bassiouni, Ôthe rule must exist in a number of States, but the rule does not have to meet the test of Òuniversal acceptance,Ó and no quantitative or numerical test for States having such a ÒprincipleÓ has ever been establishedÕ.216 _{Admittedly, there is the obsolete reference in Article 38} to the controversial expression Ôcivilized peopleÕ but it is now commonly agreed that this reference is not actual anymore.217 This condition of ÔrecognizedÕ thus only requires a recognition

211 _{OÕBoyle and Lafferty (n191) 196 (emphasis added).}

212 _{ICJ, Cases on South-West Africa, Second Phase (Ethiopia v. South Africa, Liberia v. South Africa) (Merits, dissenting}

Opinion of Judge Tanaka) (1996) ICJ Rep 6 250; OÕBoyle and Lafferty (n191) 207-208.

213 _{De Schutter (n38) 54;}

See also OÕBoyle and Lafferty (n191) 221.

It must be noted that others authors who did the same analysis reached the conclusion that the ICJ refers to customary international law:Treves (n186).

214 _{OÕBoyle and Lafferty (n191) 221.} 215 _{Gaja (n177).}

216 _{Bassiouni (n28) 788;}

See also Kaufman Hevener and Steven Mosher (n185) 602; Maki (n205) 277; M. Panezi, ÔSources of Law in Transition. Re-visiting General Principles of International LawÕ (2007) Ancilla Iuris 74; Gaja (n177).

217 _{B. Vitanyi, ÔLes positions doctrinales concernant le sens de la notion de Òprincipes gŽnŽraux du droit reconnu par}

in a high number of states,218 which, as shown in the previous section, corresponds to the scope that this current analysis gives to the expression Ôinternationally recognizedÕ contained in Article 21(3) of the ICC Statute. Consequently, if a human right can qualify as a general principle of law, Article 21(3) obliges the ICC judges to take this right into account.

Since this source does not require any practice, the recourse to general principles of law avoids the question of the identification of the practice and that of the discrepancy between opinio

iuris and this practice. Admittedly, the identification of general principles of law is supposed to

require Ôa comparison between national systems, the search for common ÒprinciplesÓ, and their transposition to the international sphereÕ.219 _{Nonetheless, if a human right is stipulated in a treaty,} the ratification of this treaty implies that somehow this right becomes part of the municipal law.220 It is thus sufficient to examine in how many and in which conventions a human right is recognized in order to gauge its Ôinternationally recognizedÕ character. This approach makes it possible to bypass the fact that the ICC member states are not party to the same treaties while respecting statesÕ consent at the same time since these principles need to be recognised by them. Needless to say that the treaty or the different treaties that recognize a human right need to have enough members for this right to be considered as a general principle.

Despite these advantages, there are not many references to this source in the literature.221 The legislation of states is easier to identify than the practice of states as required by customary international law, however. It must be noted that the legislation of states equates to opinion iuris and the way the legislation is applied and respected equates to practice so that, contrary to the general principles of law, both are required to establish the existence of customary international law. Furthermore, the possible translation of human rights as international law is assumed given the existence of international human rights conventions. As held by Meron,

It is surprising that Ôthe general principles of law recognized by civilized nationsÕ (É) have not received greater attention as a method for obtaining greater legal recognition for the principles of the Universal Declaration and other human rights instruments. As

218 _{Elewa Badar and Higgins (n58) 268.} 219 _{Pellet (n53) 1073-1074.}

220 _{Article 27 of the Vienna Convention.}

221 _{For example, in his article regarding finding a source for human rights, DÕAmato does not mention general}

human rights norms stated in international instruments come to be reflected in national laws, (...) Article 38(1)(c) will [or might] increasingly become one of the principal methods for the maturation of such standards into the mainstream of international law.222

For all these reasons, in order to determine the content of the right to liberty, this thesis will examine whether the provisions of human rights conventions regarding provisional release can also be considered as general principles of law. If so, the right to liberty would indubitably meet the conditions provided by Article 21(3) since a general principle is in any case international and binding whereas Article 21(3) only requires the right to be international and recognized.