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Historicizing the Dual Categorization of the General Principles of Law by the ILC
Published online by Cambridge University Press: 23 July 2020
Abstract
“Draft conclusion 3” of the first ILC report on the “general principles of law” expounds on two categories: general principles of law derived from national jurisdictions and those formed within the international legal system. This paper explores the drafting history of Article 38(1)(c) of the ICJ's Statute to investigate whether the Advisory Committee of Jurists, entrusted to frame a statute for the international court, had conceived the idea that, apart from domestic legal systems, the international legal framework could form general principles of law, or whether they were reluctant to endorse such an open-ended formulation which would give more liberty to judges to apply these principles as per their whims and fancies. The paper argues that the dual categorization of the general principles of law by the ILC has no substantive roots in the preparatory history of the ICJ's Statute and therefore it is purely an innovation by the ILC.
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- Copyright © Asian Journal of International Law, 2020
Footnotes
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Doctoral Candidate, Faculty of Legal Studies, South Asian University [SAARC], India. I am grateful to my supervisor Dr Ravindra Pratap for his guidance and support. I am also indebted to Mr Santosh Anand for his insightful comments on the topic.
References
1. The other two sources are “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” and “international custom, as evidence of a general practice accepted as law”; see Statute of the International Court of Justice, 26 June 1945, U.S.T.S. 993 (entered into force 24 October 1945), art. 38(1).
2. See BOGDAN, Michael, “General Principles of Law and the Problem of Lacunae in the Law of Nations” (1977) 46 Nordic Journal of International Law 37CrossRefGoogle Scholar; LAMMERS, Johan G., “General Principles of Law Recognized by Civilized Nations” in KALSHOVEN, Frits, KUYPER, Pieter Jan, and LAMMERS, Johan G., eds., Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (Alphen aa den Rijn: Sijthoff and Noordhoff, 1980), 53–77Google Scholar; RAIMONDO, Fabián O., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Leiden: Martinus Nijhoff, 2008)CrossRefGoogle Scholar at 7; PELLET, Alain and MÜLLER, Daniel, “Article 38” in ZIMMERMANN, Andreas and TAMS, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 3rd ed. (Oxford: Oxford University Press, 2019), 923Google Scholar; ANDENAS, Mads and CHIUSSI, Ludovica, “Cohesion, Convergence and Coherence of International Law” in ANDENAS, Mads, FITZMAURICE, Malgosia, TANZI, Attila, and WOUTERS, Jan, eds., General Principles and the Coherence of International Law (Leiden/Boston: Brill/Nijhoff, 2019), 10CrossRefGoogle Scholar; and REDGWELL, Catherine, “General Principles of International Law” in VOGENAUER, Stefan and WEATHERILL, Stephen, eds., General Principles of Law: European and Comparative Perspectives (Oxford/Portland, OR: Hart Publishing, 2017), 5Google Scholar.
3. Report of the International Law Commission on the Work of its Sixty-Ninth Session, Official Records of the General Assembly, Seventy-Second Session, Supplement No. 10, UN Doc. A/72/10, at para. 34; Report of the International Law Commission on the Work of its Sixty-Fourth Session, Official Records of the General Assembly, Sixty-Seventh Session, Supplement No. 10, UN Doc. A/67/10, at para. 267.
4. The General Assembly in its Resolution 72/116 of December 2017 took note of the inclusion of the topic in the Commission's long-term programme of work.
5. First Report of the Special Rapporteur, Mr. Marcelo Vázquez-Bermúdez, Seventy-First Session of the ILC (2019), UN Doc. A/CN.4/732.
6. See annex to ibid:
Draft conclusion 1, Scope: The present draft conclusions concern general principles of law as a source of international law.
Draft conclusion 2, Requirement of recognition: For a general principle of law to exist, it must be generally recognized by States.
Draft conclusion 3, Categories of general principles of law: General principles of law comprise those: (a) derived from national legal systems; (b) formed within the international legal system.
7. Although different categories of general principles of law exist in the scholarly literature, the Special Rapporteur has essentially selected the two broader categories as the two appear to be supported by practice and widely accepted by scholars. For a perusal of various categories of general principles of law, see SCHACHTER, Oscar, “International Law in Theory and Practice: General Course in Public International Law”, Collected Courses of the Hague Academy of International Law, Vol. 178 (1982-V), 9–396Google Scholar, at 74–5.
8. Mavrommatis Palestine Concessions (Greece v. U.K.), [1924] P.C.I.J. (ser. B) No. 3; Exchange of Greek and Turkish Populations (Greece v. Turkey), Advisory Opinion, [1925] P.C.I.J. (ser. B) No. 10; German Interests in Polish Upper Silesia (Germany v. Poland), [1925] P.C.I.J. (ser. A) No. 6; Interpretation of Greco-Turkish Agreement of Dec 1st, 1926, Advisory Opinion, [1928] P.C.I.J. (ser. B) No. 16; Factory at Chorzów (Germany v. Poland), [1927] P.C.I.J. (ser. A) No. 9; S.S. Lotus (France v. Turkey), [1927] P.C.I.J. (ser. A) No. 10; Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep. 359; Right of Passage Over Indian Territory (Portugal v. India), [1960] I.C.J. Rep. 43; South West Africa (Ethiopia v. South Africa.; Liberia v. South Africa), [1962] I.C.J. Rep. 319; Temple of Preah Vihear (Cambodia v. Thailand), [1962] I.C.J. Rep. 6 at 23; and Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253.
9. See Interpretation of Judgements Nos. 7 and 8 (Factory at Chorzów) (Germany v. Poland), Dissenting Opinion of Judge Anzilotti, [1927] P.C.I.J. (ser. A) No. 13 at 27: “it appears to me that if there be a case in which it is legitimate to have recourse, in the absence of conventions and custom, to ‘the general principles of law recognized by civilized nations’, mentioned in No. 3. of Article 38 of the Statute, that case is assuredly the present one.”
10. LAUTERPACHT, Hersch, The Development of International Law by the International Court (New York: Praeger, 1958) at 166–7Google Scholar.
11. BASSIOUNI, M. Cherif, “A Functional Approach to ‘General Principles of International Law’” (1990) 11 Michigan Journal of International Law 768Google Scholar at 776.
12. See SØRENSEN, Max, Manual of Public International Law (New York: St. Martin's Press, 1968)CrossRefGoogle Scholar at 145.
13. BRIERLY, James L., The Law of Nations: An Introduction to the International Law of Peace, 6th ed. (Oxford: Clarendon Press, 1963)Google Scholar at 63; VERZIJL, Jan Hendrik Willem, International Law in Historical Perspective (Leyden: A.W. Sijthoff, 1968)Google Scholar at 57. See also WHITEMAN, Marjorie M., Digest of International Law (Washington, DC: US Government Printing Office, 1963)Google Scholar at 90; and WHITEMAN, Marjorie M., Digest of International Law and Organization (Washington, DC: US Government Printing Office, 1984)Google Scholar at 145.
14. The introductory part of art. 38(1) of the PCIJ's Statute simply stated: “The Court shall apply”, whereas the current formulation in the ICJ's Statute is: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply.” This was added on the proposal given by the Chilean delegation in Committee I of Commission IV of the San Francisco Conference, 1945 (United Nations Digital Library, “Documents of the United Nations Conference on International Organization, San Francisco, 1945”, online: UN Digital Library <https://digitallibrary.un.org/record/1300969?ln=en>, at 284–5, 493).
15. In the case of the Statute of PCIJ, there was no numbering in the paragraphs and subparagraphs were numbered in Arabic figures. Article 38(1)(c) of the Statute of ICJ was written as 38 I 3, or often as art.38 (3).
16. The Advisory Committee of Jurists was established in 1920, in accordance with art. 14 of the Covenant of the League of Nations which states: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.” See League of Nations, The Covenant of the League of Nations (Montreal: A.T. Chapman, 1919)Google Scholar.
17. Draft Proposal by Denmark, Norway, and Sweden, art. 27 II.
18. Draft Proposals by Germany, art. 35, and Clóvis Beviláqua, art. 24 II.
19. Draft Proposal by Switzerland, art. 42.
20. Draft Proposals by Denmark, art. 15 II, and Norway, art. 15 II.
21. For details regarding the meetings of the Advisory Committee of Jurists, see PCIJ, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee: June 16th–July 24th, 1920, with Annexes (The Hague: Van Langenhuysen, 1920) [Procès-verbaux of the Proceedings of the Committee].
22. Ibid., at 18. In addition to Baron Descamps (the President of the Committee, Belgium), there were nine more members on the Committee: Mineichirō Adatci (Japan), Rafael Altamira (Spain), Clóvis Beviláqua (later replaced by Raoul Fernandes, Brazil), Francis Hagerup (Norway), Albert de Lapradelle (France), Dr Bernard C.J. Loder (Vice-President of the Committee, the Netherlands), Lord Phillimore (Great Britain), Arturo Ricci-Busatti (Italy), and Elihu Root (US).
23. See annex no. 6 of the Second Meeting: Note read by Baron Descamps “[a]bout the difficulties of the problem submitted to the Jurists Committee and a proper method for solving these difficulties”, ibid., at 44.
24. Annex no. 2 talks about the Draft of General Agenda adopted by the committee, ibid., at 33; agenda (g) titled as “Material law to be applied by the court” raised several questions, such as whether the principles of law to be applied by the court should be framed in general or in detail, ibid., at 38:
In the latter case, what body of law shall be applied? Would the adoption of a system of detailed rules necessitate very extensive codifications of international law? In the former case, how should the principles of law to apply be described? What importance should be given to the practice to be established by the Court? Should the Court itself be sole judge over the interpretation of the principles laid down as base for its authority? How should existing gaps in international law, and in principles of such law, be filled?
25. Ibid., at 306.
26. Initially few members opposed the idea of laying down sources of law to be applied by the Court. But later they endorsed it. De Lapradelle called the President's draft “interesting but useless”. According to him the task of defining the law must be left to the judges. Therefore, he preferred a short wording that “the Court shall judge in accordance with law, justice, and equity”, ibid., at 295–6.
27. Mr Root, while responding to President Descamps’ proposal, initially rejected any such idea of codification of rules to be applied by the Court. He pointed that “[i]f the Committee undertook to establish the actual rules to be followed by the judges, they would exceed their mandate, which was to organize the Court and not to make laws for it”. However, later he also agreed with Clauses 1 and 2 of the President's Report, ibid., at 293.
28. Ibid., at 294.
29. On this issue, De Lapradelle, another Committee member, also disagreed with Mr Root. He stated that Mr Root's solution, that the judges should act as per the recognized rules and in the absence of such rules they should declare a non liquet, seemed inadmissible, ibid., at 313.
30. Mr Root substantiated his argument by citing his two personal experiences. First, he gave the example of the Treaties of Arbitration, 1907, signed between the US on the one side, and Great Britain and France on the other. But it failed to be ratified by the US because it contained an open-ended clause which said that every justiciable dispute would be submitted to arbitration. The US vehemently opposed this as it gave unlimited powers to the Court to apply a conception of justice which might be incompatible with that recognized by the US. The second example he gave was of the International Prize Court which could not be established because Great Britain wanted to know the exact scope of the principles of justice and equity which the Court was to apply, ibid., at 313–14.
31. Ibid., at 310–11.
32. Ibid., at 310–11, the President quoted the example of the California Pious Funds case, in which the judgment was rendered in accordance with the principle of res judicata, which according to him was nothing but the application of general principles.
33. Ibid., at 315.
34. M. Root submitted his draft proposal at the 15th meeting of the Advisory Committee, ibid., at 344. The draft read as:
The following rules are to be applied by the Court within the limits of its competence, as described above, for the settlement of international disputes; they will be considered in the undermentioned order:
- 1.
1. conventional international law, whether general or special, being rules expressly adopted by the States which are parties to a dispute;
- 2.
2. international custom, being recognized practice between nations accepted by them as law;
- 3.
3. the general principles of law recognized by civilized nations;
- 4.
4. the authority of judicial decisions and the opinions of writers as a means for the application and development of law.
35. The President of the Committee approved the draft with changes only in point 4 by replacing the words “the opinions” with the words “coinciding doctrines”, ibid., at 331; it was the assembly of the League of the Nations that inserted a new paragraph in the Draft Article which empowered the Court to decide a case ex aequo et bono. For details, see Documents Concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption of the Assembly of the Statute of the Permanent Court: (not Including Material Collected For, or the Minutes of the Advisory Committee of Jurists) (Geneva, 1921).
36. He also observed that the phrase “civilized nations” was superfluous because law implies civilizations, ibid., at 335.
37. Ibid.
38. Ibid.
39. Ibid.
40. Third World Approaches to International Law [TWAIL] scholars like Bhupinder S. Chimni attribute a completely different meaning to the term “civilized nations” that occurs in art. 38(1) of the ICJ Statute. He argues that it “is a reminder of how the ‘formal’ and ‘material’ sources were historically tied together, facilitating the colonization of non-western nations”; see CHIMNI, Bhupinder S., “Customary International Law: A Third World Perspective” (2018) 112 American Journal of International Law 1CrossRefGoogle Scholar at 15. On TWAIL, also see ANGHIE, Antony and CHIMNI, Bhupinder S., “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts”, (2003) 2 Chinese Journal of International Law 1 at 77CrossRefGoogle Scholar; CHIMNI, Bhupinder S., “Third World Approaches to International Law: A Manifesto” (2006) 8 International Community Law Review at 3CrossRefGoogle Scholar.
41. Procès-verbaux of the Proceedings of the Committee, supra note 21 at 336.