General Principles of Law Formed Within the International Legal System?

Article 38(1)(c) of the Statute of the International Court of Justice provides that one of the sources of international law is the general principles of law. This source of international law has given rise to many controversies. However, the issue which is giving rise to the most controversy in the International Law Commission’s ongoing work on general principles of law is whether this source includes general principles of law formed within the international legal system.

The present post seeks to address this controversy. It will first provide some basic background on the source of general principles of law, as well as on earlier controversy regarding its content. Attention will then shift to the controversy, in the context of the ILC’s work, regarding general principles of law formed within the international legal system. It will then proceed to argue that this category of general principles of law is difficult to sustain doctrinally, and it would hence be prudent for the ILC to omit recognition thereof.

Background

Using the exact same terms as those which featured in the Statute for the Permanent Court of International Justice, article 38(1)(c) of the ICJ Statute stipulates that one of the sources of international law is “the general principles of law recognized by civilized nations”. Perhaps the most conspicuous controversy the source was bound to give rise to is its reference to “civilized” nations (see, eg, statements of Indonesia, Ghana, Guatemala, Mexico, Egypt). However, this relic of a bygone era appears, today, to constitute a dead letter, with the term “states” being read into the provision in the relic’s place.

Yet, the question remains what the source actually contains. Scholars over the years have provided radically different assessments. For example, Grigory Tunkin argued that general principles of law do not even constitute an independent source of international law. The late Judge Cançado Trindade considered that “[g]eneral principles of law emanate… from human conscience, from the universal juridical conscience”. Cherif Bassiouni opined that general principles of law “are found in the underlying or posited principles or postulates of national legal systems or of international law”. Imogen Saunders posited that “the primary forum from which a General Principle can be drawn is the domestic forum, but that in evidence gathering, evidence of municipal laws can be augmented by evidence of international recognition” (p236; emphasis in original).

It seems that some of these contrasting assessments date back – at least – to the Advisory Committee of Jurists tasked with drafting the PCIJ Statute in 1920. While Baron Descamps suggested that the proposed court should be able to have recourse to “dictates of the legal conscience of civilised nations” as applicable law, Elihu Root objected to providing the court such broad powers. The Committee ultimately settled on the language which now features in article 38(1)(c) of the ICJ Statute. Lord Phillimore declared in the Committee that this language referred to principles “accepted by all nations in foro domestico”. Yet, there is disagreement whether Phillimore’s statement reflected a compromise agreement of the Committee on the meaning of the provision (eg, Cheng), or whether the language adopted was a compromise formula without prejudice to the jusnaturalist position which encompassed but went further than principles accepted in foro domestico (eg, Judge Cançado Trindade).

References by states over the years to general principles of law also indicated different positions. It should be noted that pronouncements by states regarding general principles of law, prior to the ILC’s work, have generally been incidental to making arguments in concrete cases. Accordingly, pronouncements focused on the theoretical framework for identifying general principles of law are rare. Some states indicated they looked to municipal legal systems to identify general principles of law, without indicating whether municipal law is the sole source of general principles of law (see, eg, Bulgaria (1930), United Kingdom (1951)). However, certain states in their pronouncements appear to have considered that general principles of law are confined to those principles common across municipal legal systems (India (1957), France (1963), South Africa (1965), Greece (1965), Denmark and Netherlands (1968), Libya (1981), United States (2001), Liechtenstein (2002), Bosnia & Herzegovina (2006), Australia (2014)). Some states adopted positions reminiscent of the abovementioned jusnaturalist conception (Ethiopia and Liberia (1965), Uruguay (1967), Federal Republic of Germany (1968), Nauru (1995)). Finally, certain states have made pronouncements reminiscent of recognition that general principles of law derive, or can be deduced, from the international legal system (Japan (1923), Mexico (1954), Portugal (1959), Belgium (1972), Mauritania (1972); neutral: Malta (1981)).

The ILC’s Work and its Reception

With this backdrop, the ILC and, especially, the Special Rapporteur for general principles of law, Marcelo Vázquez-Bermúdez, are faced with the unenviable task of making sense of these radically contrasting understandings of one of the formal sources of international law. In his three reports to date – including in his most recent report, made available to the public in late June 2022 – the Special Rapporteur has consistently taken the position that there are two categories of general principles of law: those “derived from national legal systems” and those “formed within the international legal system” (p56, p4, p12). The category of principles “derived from national legal systems” involves “determining the existence of a principle common to the principal legal systems of the world”, and then “ascertaining the transposition of that principle to the international legal system” (p6). For the second category, according to Vázquez-Bermúdez (p38):

What is required is determining the existence of a principle that is recognized by the community of nations by ascertaining that a principle: is widely acknowledged in treaties and other international instruments; underlies general rules of conventional or customary international law; or is inherent in the basic features and fundamental requirements of the international legal system.

The category of general principles of law derived from municipal legal systems has been uncontroversial among ILC members, even if significant disagreements exist regarding the methodologies for their identification across different municipal legal systems and their transposition into international law (p155-56). Conversely, ILC members remain divided over the existence of general principles of law formed within the international legal system (p336, pp156-57).

In the Sixth Committee (Legal) of the UN General Assembly, the category of general principles of law derived from municipal legal systems has proven uncontroversial – save, perhaps, certain doubts raised by Russia (¶77). Moreover, support for the jusnaturalist approach seems to have disappeared. Conversely, states are divided on the question of general principles of law formed within the international legal system. Of the states which have addressed the question whether general principles of law formed in the international legal system exist – many have remained neutral on the subject – several states expressed recognition of the existence of this category as a valid source of international law (Spain, Portugal, Peru, Nordic countries, South Africa, Austria, Chile, Germany, Slovenia, Netherlands). Some states have rejected the existence of this category of general principles of law (Iran, United States, Israel, Czechia, Romania, Slovakia, Jordan). Certain states have expressed scepticism regarding the category’s existence, without offering a definite answer (Philippines, Greece, United Kingdom, Poland).

Overcoming the Impasse

As a preliminary matter, it should be emphasised that there is little suggestion that the topic of general principles of law is one which the ILC should engage in its progressive development (Vázquez-Bermúdez third report, p12). Indeed, progressive development of international law, while one of the ILC’s mandates, is less appropriate for projects seeking to provide authoritative guidance on how to find international law in the first place (cf. Sir Michael Wood’s fifth report, pp9-10). As the topic of general principles of law should be confined to the codification of international law, the question which arises is how one determines the existence of a source of international law.

It is beyond the scope of this post to provide an exhaustive answer to this question. However, a reasonable (positivist) answer is provided by Sir Robert Jennings and Sir Arthur Watts, building on previous editions of Oppenheim’s:

“It is… in accord with practical realities to see the basis of international law in the existence of an international community the common consent of whose members is that there shall be a body of rules of law — international law — to govern their conduct as members of that community.”

They add that the sources of international law are “necessarily related to the basis of the legal system as a whole”. It should be added that the members – or at the least the dominant members – of the community governed by international law are states, and hence it is states’ common consent which is imperative for recognition of a source of international law.

The common consent approach conforms to the understanding that (international) law is a social phenomenon and derives its validity from common social understandings (see Weil, 47ff). Moreover, this common consent concerns the sources of international law; it is not a claim that rules of international law must be based on common consent. Indeed, the sources of law, once recognised by common consent, subsequently lay out how concrete rules are identified (cf. Lowe, 208-09).

There are difficulties where common consent exists but only at an abstract level; in the sense that states may agree that a certain source exists but disagree on its precise contours or fail to elaborate thereon. For example, while states appear to agree that general principles of law encompass principles common across municipal legal systems, this common consent does not elaborate how similar principles in different municipal legal systems must be. In this and other instances, one will likely need to have recourse to broader techniques of legal reasoning to answer such questions, such as induction, deduction, analogy and others (Bordin, 15ff). For instance, it should be presumed that states’ common consent that a source of law exists should have effect; the source should not be devoid of content (cf. MacCormick, 65). Accordingly, principles need not be identical across municipal legal systems, since such a demand would render it practically impossible for a general principle of law to ever exist.

However, the existence of hard cases, where a broad level of common consent exists, should be contrasted with instances where there is no such comment consent. From the state positions briefly surveyed in the previous two sections of this post, it seems difficult to contend that there has ever been – now or in the past – common consent of states that general principles of law formed within the international legal system constitute a valid source of international law. Indeed, the decades-long disagreement whether general principles of law can be found outside municipal legal systems has basically manifested itself again – albeit in a more focused manner – in Sixth Committee meetings in recent years. Of course, only a minority of states have expressed their position on the subject. Yet, this sample of states appears to indicate that it would be very problematic to argue that there is a common consent of states to category of general principles of law formed within the international legal system.

Conclusion

If the reader is persuaded by the arguments made in this post, it should follow that there is no category of general principles of law formed within the international legal system. Rather, general principles of law, enshrined in article 38(1)(c) of the ICJ Statute, should be confined to principles common across municipal legal systems. It is hence suggested that the ILC’s focus in its work on general principles of law should be on this uncontroversial category. Conversely, given the serious doctrinal problems in recognising the validity of a second category of general principles of law – those formed within the international legal system – it would be prudent for the ILC to omit recognition thereof as a valid source of international law.