End of a Quinquennium of the ILC: The Birth of a New Category of General Principles of Law?

Margot Donzé

The Context

The second part of the 73rd session of the International Law Commission (ILC) took place from 4th July to 5th August 2022. While this ended a quinquennium for the Commission, it opened significant and complicated discussions about the birth of a new category of general principles of law (GPL). GPL was the principal topic of this second part, having been included in the long-term program of work of the Commission at its 69th session. This source of international law is often considered a settled matter. However, during the Plenary Sessions and meetings of the Drafting Committee, it raised many novel questions for ILC members, leading to much debate.

Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) provides that: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply the general principles of law recognized by civilized nations.” [emphasis added]. There are, possibly, two categories of GPL. The existence of the first – ‘GPL derived from national legal systems’ – is not disputed, as it is the primary understanding of Article 38(1)(c). However, the inclusion of a second category in the Draft Conclusions, namely ‘GPL formed within the international legal system,’ encompassing principles created directly at the international level, was seen as problematic. The main friction point for ILC members was the existence – or non-existence – of this latter category. Accordingly, this post will examine the legality of the inclusion of this second category in the ILC Draft Conclusions on GPL.

First Category: General Principles of Law Derived from National Legal Systems

According to Article 38(1)(c) of the Statute, the first category of GPL is, as also described by the Third Report of the Special Rapporteur Marcelo Vázquez-Bermúdez [p.2], GPL derived from national legal systems. Although certain elements of this category were discussed, such as the outdated term ‘civilized nations,’ there was a general consensus on the existence of this category of GPL. Indeed, going back to the drafting history of the Statute of the Permanent Court of International Justice (PCIJ) – based on which this article was formulated – it is clear that, in 1920, this first category was what the drafters had in mind. For example, the Procès-Verbaux of the meetings of the Advisory Committee of Jurists (ACJ) reports that “Lord Phillimore pointed out that the general principles referred to in point 3 were these which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, the principle of res judicata, etc.” [p. 335].

Overall, although many elements were discussed concerning GPL derived from national legal systems, the existence of this category was not questioned.

Second Category: General Principles of Law Formed within the International Legal System

The main debate concerns the existence of a second category of GPL, namely GPL formed within the international legal system. According to the Third Report of the Special Rapporteur, members of the ILC usually had one of three positions: 1) being in agreement with this category of GPL, 2) seeming hesitant about the existence of such a category but not firmly opposed to it, and 3) rejecting the existence second category of GPL under Article 38(1)(c) of the Statute of the ICJ. Additionally, the Special Rapporteur acknowledged in his last report the difficulty of identifying the source and the creation process of such principles.

Multiple points were raised to oppose this category. One argument was that the existence of such a category would give judges a plenitude of powers – somewhat legislative – which would be undesired. Due to the difficulty in identifying the source and formation of those GPL, some members apprehended the possibility for judges to ‘make up’ GPLs without concrete conditions or criteria to base them on, and thus, in a sense, create law. Moreover, certain members feared that, by including this category in the Draft Conclusions, the ILC would be overstepping its mandate under Article 13(1)(a) of the Charter of the United Nations (UN) to “[encourage] the progressive development of international law and its codification.” A third line of opposition stemmed from the possibility that this category may circumvent the rules laid out in treaties or international custom, the two other sources of international law per Article 38(1) of the Statute of the ICJ. More importantly, this would override States’ consent to be bound by a norm. In my view, the creation of this second type of GPL, which is a source of obligation for States, is not done through a process that requires the consent of States, as is the case for custom. [See the statements by Mr. Petrič, Mr. Forteau, and Mr. Rajput in 2021].

After lengthy discussions in the Drafting Committee, it was decided to include this second category of GPL in Draft Conclusion 7 titled “Identification of general principles of law formed within the international legal system.” Due to the debate around this topic, the ILC was very careful in its drafting. It was crucial for the Drafting Committee to ensure that the wording of all eleven Draft Conclusions left a very narrow margin for judges to ‘create’ principles by which States had not consented to be bound. The Chair underlines in his statement that this Draft Conclusion has been adopted as a first reading text [p. 7, Statement of the Chair of the Drafting Committee]. As a consequence of the divided opinions within the ILC, some members were disappointed by this outcome, as they believed that the ILC went too far and overstepped the limits of its mandate. [See generally, pp. 5-9 of the Statement of the Chair of the Drafting Committee].

 The Main Problem of this New Category: Its Formulation

In my view, the main issue here is the formulation of this category, the so-called “general principles of law formed within the international legal system.” This is because the ILC failed to demonstrate, as some members raised this point on numerous occasions [p. 6 of the Statement of the Chair of the Drafting Committee], how such GPL can be formed within the international legal system by means different from the customary process (or, obviously, the adoption of a treaty). The ILC was aware of the close connection between the two and the potential overlap, as evinced by Draft Conclusion 11 covering the relationship between GPL, treaties, and custom. However, it does not tackle the fact that GPL formed within the international legal system could be considered customary norms.

The Chair of the Drafting Committee gives the principle of territorial integrity as an example. In its 2010 Advisory Opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo, the ICJ stated that the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations – according to which States “shall refrain from the threat or use of force against the territorial integrity or political independence of any State” – reflected customary international law. If this is the case, there appears to be no necessity to create a second category of GPL, as principles falling within this category would already be included as customary international law under Art. 38(1)(b) of the Statute. It is, however, noteworthy that other principles mentioned by the ILC have a controversial nature. For instance, the principle uti possidetis juris [see Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?], could potentially be a norm that is not fully customary, and would therefore fit into this category. In particular, the ICJ referred to uti possidetis juris as a ‘general principle’ in the Frontier Dispute (Burkina Faso/Republic of Mali) [para. 20]; the question is whether this ‘general principle’ falls within the category of GPL formed within the international legal system. Other examples mentioned in the report are non-intervention, consent to the jurisdiction of international courts and tribunals, respect for human dignity, and elementary considerations of humanity.

Accordingly, the issue on the core question of the creation of the second category of GPL can be framed in the following terms: if GPL formed within international law overlap with custom, it appears unnecessary to include this category, as a judge would simply be recognizing the formation of a new customary rule, which would fall under Article 38(1)(b) of the Statute. However, this category would become relevant if there are certain principles which are not fully customary, but generally recognized by the community of States.

Conclusion: Codification, Progressive Development, or Innovation?

The mandate of the ILC is to encourage the codification and progressive development of international law. At the same time, State sovereignty is the central pillar of international law. The Commission’s Draft Conclusions leave several questions that merit consideration: by adopting the Draft Conclusions, did the ILC accept the possibility for a judge to determine the existence and apply GPL formed within the international legal system? Did the ILC circumvent the consent of States indicated through the ratification of a treaty or the necessary opinio juris with respect to customary international law? And what about the ‘threshold’ of consent? Are we moving away from voluntarism? Finally, are GPL formed within the international legal system different from rules of customary international law? And if not, why did the ILC create this category, as it was unnecessary?

One possible way to resolve this ambiguity would have been to be more specific in the title of the topic. If the title had specifically been ‘general principles of law under Article 38(1)(c) of the Statute of the International Court of Justice,’ it is likely that the second category would not have been included. Indeed, it is clear – from what is mentioned above about the discussions of the Drafting Committee of the Statute of the PCIJ – that this is not what the authors had in mind when drafting this provision. The fact that the title is broad, ‘general principles of law,’ while still focusing on Article 38(1)(c) is confusing. What principles are included? In other words, the current title is quite equivocal, and it is not clear at first glance what type of principles the conclusions discuss.

The question that we are left with is what will happen to these eleven Draft Conclusions. If the Sixth Committee is reticent regarding the existence of a category of GPL formed within the international legal system, as many States have expressed [see, i.e., the 2019 statements of the Czech Republic and Iran, as well as the 2021 statements of Greece, Israel, Jordan, the Philippines, Romania], the Draft Conclusions may unfortunately not be given a chance. Members of the Commission will know the fate of these highly debated Draft Conclusions as States will have the final word. It seems that States were doubtful of the existence and creation of GPL formed within the international legal system [see, e.g., statements of Austria, United States, and Brazil]. However, as this is only a first reading, the topic is far from over. Alea jact est? [Is the Die Cast?]

Author:

Margot Donzé is currently pursuing a master’s degree in International Law at the Geneva Graduate Institute (IHEID). During the second part of the 73rd session of the International Law Commission, she was a legal assistant to Dr. Aniruddha Rajput. Additionally, she is currently assisting Professor Georges Abi-Saab and working for the climate change NGO Aroha. Her centres of interest include public international law, human rights (in times of armed conflict), international humanitarian law, and the law of the sea.