[Dr. Pouria Askary is an Associate Professor of International Law at Allameh Tabataba’i University (ATU).]
This post is based on a presentation delivered in a webinar organized by AALCO on 6 April 2023.
Since the very beginning, the work of the International Law Commission (ILC) on the topic of general principles of law has surprised many States as well as commentators by introducing a second category of general principles of law which are, as reflected in the latest version of the text of the draft conclusions provisionally adopted by the ILC Drafting Committee on first reading: ‘general principles of law that may be formed within the international legal system’. (Draft Conclusion 3(b)) (See also: here) As reflected in the various reports of the ILC (see: e.g. here, para. 137), this initiative is also challenged by some members of the Commission who believe that general principles of law are limited to those derived from national legal systems. Nonetheless, the Special Rapporteur of the Commission (SR), Marcelo Vázquez-Bermúdez is of the opinion that there are grounds to support the existence of general principles of law formed within the international legal system based on an analysis of practice, jurisprudence, and doctrine. (ibid.)
The SR admits that practice relevant to the existence of the second category of general principles was limited. (ibid., para. 138) Yet, he stated that Article 38, paragraph 1(c) of the ICJ Statute, did not indicate that general principles of law were those limited to general principles of law derived from national legal systems. (ibid.) Although one may find this statement by the SR as a kind of stretching of the text of Article 38(1)(c) of the ICJ Statute which refers to “the general principles of law recognized by civilized nations”, reading the arguments and examples provided by the SR in his first report to the Commission (paras. 231-253), I did not completely rule out the existence of such a category of general principles like the principle of uti possidetis orelementary considerations of humanity. However, it seems that most of the principles that we may refer to them as principles formed within the international legal system, are in nature “rules” or “principles not of a general character” with vital importance which are reflected either in the customary or treaty law (like the principle of the freedom of maritime communication). When you read the 2nd report of the SR, you may share the view that this was also to some extent reflected in the report by the SR. Perhaps, this was the reason why he proposed the draft conclusion 7 as follows:
‘To determine the existence and content of a general principle of law formed within the international legal system, it is necessary to ascertain that: (a) a principle is widely recognized in treaties and other international instruments; (b) a principle underlies general rules of conventional or customary international law; …’.
By formulating the draft conclusion in this way, the SR suggested that for a general principle “to be formed within the international legal system” it is necessary to have an echo in the conventional or customary international law. However, this draft conclusion has changed drastically by the drafting committee in 2022. The latest version of draft conclusion 7 provides that:
- To determine the existence and content of a general principle of law that may be formed within the international legal system, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system. (emphasis added)
This version of draft conclusion 7, does not at all refer to the reflection of the general principle in conventional or customary international law! Instead, it refers to the recognition of the principle as “intrinsic to the international legal system”.
Does this phrase help us to identify a general principle of international law? I don’t think so. I am not even quite sure that everyone has the same understanding of this phrase. In other words, it seems that this phrase opens the hands of the States or other actors to provide vague and general interpretations.
Is there a rule of customary international law or conventional provision that identifies a general principle of law as “intrinsic to the international legal system”? In my opinion, the answer to this question is also negative.
The drafting committee did not stop there. It added another paragraph to this draft conclusion to maximize the confusion. This paragraph indicates that: “Paragraph 1 is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system”. In the commentary to this paragraph, the ILC states that: ‘this paragraph was included to reflect the view of some members of the Commission who … considered that paragraph 1 of the draft conclusion would be too narrow and would not encompass other possible principles that, while not intrinsic or inherent in the international legal system, may nonetheless emerge from within the latter system …’. (p. 323, para. 4) (emphasis added)
As mentioned earlier, the ambiguity of paragraph 1 grants discretion to both states and other actors to interpret the confusing phrase “intrinsic to the international legal system” in a broad manner. The ILC commentary on paragraph 2, however, indicates that some members of the commission are in favor of more broadening the hands to “create general principles of international law”. Interestingly this paragraph and its commentary do not refer to any criterion other than “not being intrinsic or inherent in the international legal system”. Hence, it seems that the new version of draft conclusion 7 does not provide any concrete criteria to identify general principles of international law. Instead, it opens the door for broad interpretations, which are too dangerous for the coherence of the international system.
I intentionally used the phrase “dangerous for the coherence of the international legal system” because among the two functions that the ILC enumerated for the general principles of law in draft conclusion 10 is to contribute to the coherence of the international legal system. However, seemingly with the current version of the work of the ILC in hand, we are moving in the opposite direction.
Under the latest version of draft conclusion 11(1): General principles of law, as a source of international law, are not in a hierarchical relationship with treaties and customary international law. In other words, the Commission in this draft conclusion, once again, is acknowledging that both categories of general principles are to be seen as sources of international law which as reflected in the latest version of draft conclusion 10(2)(b): may serve as a basis for primary rights and obligations, as well as a basis for secondary and procedural rules. Or, as enshrined in draft conclusion 10(2)(a) to complement other rules of international law.
If you put together sub-paragraphs 10(2)(a) and 10(2)(b) with draft conclusion 7, you may agree with me that this approach is dangerous for the coherence of the international legal system. Because on the one hand, in comparison to the methodology provided in the final outcome presented by the ILC in 2018 for the identification of customary rules of international law, the current version of draft conclusion 7, makes it possible to create general principles of international law almost with no concrete or specific criterion. And on the other hand, these created principles are to be seen as sources of international law that may serve as a basis for new rights and obligations under international law which are not necessarily reflected in any international instrument or customary norm.
Here it is important to note that draft conclusion 11(2) states that a general principle of law may exist in parallel with a rule of the same or similar content in a treaty or customary international law. This provision was formulated in the same way the draft conclusion 11 proposed by the SR in his 3rd report. In this report, the SR highlights that in his opinion ‘when a general principle of law has an identical or analogous content to that of a conventional or customary rule: (a) the conventional or customary rule in question does not necessarily supervene the general principle of law; and (b) the general principle continues to have a separate, distinct applicability.’ (para. 85)
This statement, nonetheless may not raise concerns with respect to the fragmentation of international norms because as clearly stated in draft conclusion 11(3): any conflict between a general principle of law and a rule in a treaty or customary international law will be resolved by applying the generally accepted techniques of interpretation and conflict resolution in international law. The drafting committee has chosen to change the formula proposed by the SR in the draft conclusion 12. The original formula stated that the lex specialis principle would apply in relationships between general principles of law and rules from other sources of international law that address the same subject matter. The committee has replaced it with a reference to “generally accepted techniques of interpretation and conflict resolution in international law”. (paras. 120 and 142) The new formula, however, considering the findings of the Study Group of the ILC in 2006 on the issue of fragmentation of international law, does not seem to challenge the application of the lex specialis principle, as well as, other principle referred to in the ILC 2006 report to solve the possible conflicts between a general principle of law and a rule in a treaty or customary international law. Yet, if you read draft conclusion 11(2) with draft conclusion 10(1) you may become worried. The latter provides that: “general principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part.” (emphasis added) This paragraph specifies that while conflicts between coexisting general principles of law and a rule in a treaty or customary international law can be resolved by applying the lex specialis maxim, in situations where there is no existing customary or treaty rule, or where the existing rules of customary or treaty law do not fully resolve a particular issue, States and other actors are permitted, or even encouraged, to address the issue by resorting to general principles of law, including those formed within the international legal system.
I would like to ask the readers whether they can imagine a State acknowledging that the existing rules of international customary or treaty law can be fully applied to resolve its critical disputes with other States or the international community. I don’t believe that we can find many instances of this, particularly among the superpowers. Now imagine that we are granting them the authority to argue for the existence of general principles of law formed within the international legal system which as I have already mentioned, on the basis of the current version of the work of the ILC, is not a very difficult task. Because to identify a general principle of international law, in essence, you do not need to provide any concrete evidence. This implies that some powerful States have an extra advantage in arguing for the creation of new principles in international law, which more than anything else endangers the coherence of international law.
As John Dugard states: ‘all States have their own idiosyncrasies when it comes to the application of international law but they seldom threaten the universality of international law.’ However, at present, there are ‘several major divisions between states over the cardinal features and principles of international law.’ The universality is not challenged drastically because the aims and scopes of the rules of the international legal system are to some extent clear. Yet, the “major divisions” referred to by Dugard may be amplified by resorting to the work of the ILC in its current form. Therefore, if the ILC insists to keep the second category of general principles of law, it is necessary to add an exhaustive list of general principles formed within the international legal system to its draft conclusions. The SR himself stated that this category of general principles does not encompass a large number of instances. This list as also referred to by some of the members of the ILC may include principles such as sovereign equality of States, territorial integrity, uti possidetis juris, the principle of non-intervention in the internal affairs of another State, the principle of consent to the jurisdiction to international courts and tribunals, and some others which have already referred to by the international treaties or the international courts and tribunals. (footnote no. 1202)
I am aware that the SR has already excluded the idea of providing a non-exhaustive list of general principles (para. 134), however, the newly drafted Conclusion 7 may be seen as a game changer that justifies the provision of an exhaustive list of the second category of the general principles.