CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE FINAL YEAR… guideline 10 (Uniting of States), guideline 10 bis (Incorporation of a State into another State), and guideline 11 (Dissolution of a State). In turn, the proposed Part Three (Reparation for injury resulting from internationally wrongful acts committed against the predecessor State) comprises guideline 12 (Cases of succession of State when the predecessor State continues to exist), guideline 13 (Uniting of States), guideline 13 bis (Incorporation of a State into another State), and guideline 14 (Dissolution of a State). This part may also include guideline 15 (Diplomatic protection), which was adopted just in a form of saving clause (“the present draft guidelines do not address” the application of these rules), as diplomatic protection is just one type of invocation of the responsibility of a State. The last draft guideline adopted so far could be included in Part Four (Content and forms of obligations arising from State responsibility in the context of succession of States). It is guideline 15 bis (Cessation and non-repetition). The only proposed draft guideline that is left pending in the Drafting Committee should concern reparation and its forms. All in all, the Commission when it will meet in a new composition in 2023 will be a good position to resume the work on the topic and adopt the entire set of draft guidelines on a first reading. 2.5 General principles of law Regarding this topic, the Commission considered the third report of the Special Rapporteur Mr. Marcelo Vázquez-Bermúdez. 74 The report discussed the issue of transposition (Part One), general principles of law formed within the international legal system (Part Two), and the functions of general principles of law and their relationship with other sources of international law (Part Three). The Special Rapporteur also proposed five new draft conclusions and made suggestions for the future programme of work. The Commission provisionally adopted draft conclusion 5 (Determination of the existence of a principle common to the various legal systems of the world). It also provisionally adopted draft conclusions 3 and 7. Later, in July 2022, the Commission considered the report of the Drafting Committee on the consolidated text of draft guidelines 1 to 11, provisionally adopted by the Committee. 75 Those draft conclusions that were provisionally adopted at this session concern some very important but controversial issues. Conclusion 3 addresses the two categories of general principles of law. 76 Subparagraph (a) refers to the general principles of law derived from national legal systems. The fact that general principles of law in the sense of Article 38, paragraph 1(c) of the Statute of the ICJ undoubtedly include those derived from national legal systems is established in the jurisprudence of courts and tribunals and is confirmed by the travaux préparatoires of the Statute. 77 However, subparagraph (b) is more controversial, as it refers to general principles “that may be formed within the international legal system”. This phrase was used by the Commission in order to acknowledge that there was a debate 74 UN doc. A/CN.4/753. 75 UN doc. A/CN.4/L.971. 76 Report of the International Law Commission, 2022, ibid., p. 315. 77 Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June – 24 July 1920 (The Hague, Van Langenhuysen Bros., 1920), pp. 331–336.

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