CYIL vol. 14 (2023)

PAVEL ŠTURMA CYIL 14 (2023) law”. In addition, regarding the pending topics “Immunity of State officials from foreign criminal jurisdiction”, “Succession of States in respect of State responsibility”, the Commission held informal consultations on the first one and debate within a Working Group on the other topic. The Commission successfully completed its debate and adopted, on its first reading, the draft conclusions with commentaries on General principles of law. 2.1 General principles of law This year, the Special Rapporteur Mr. Vázquez-Bermúdez did not present any new report. The Commission, and particularly its Drafting Committee continued in discussing draft conclusions proposed in the previous reports. In the end, the Commission provisionally adopted the entire text of draft conclusions on first reading. At its 3646 th meeting, the ILC also adopted commentaries to these conclusions. The outcome of the topic consists of 11 draft conclusions. Not surprisingly, draft conclusion 1 sets the scope of the topic, which is “general principles of law as a source of international law”. Conclusion 2 provides that for a general principle of law to exist, it must be recognized by the community of nations. Draft conclusion 3 addresses the most controversial issue of categories of general principles of law. 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(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. 2 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 as to whether a second category of general principles of law exists. The commentary refers to the alleged support for the second category of principles in the jurisprudence of courts and tribunals, but it is not entirely clear whether the cases had in mind principles of international law, general principles of law, or principles of morality. However, the commentary also reveals that some members consider that Article 38(1)(c) does not encompass a second category of general principles of law, or at least remain sceptical of its existence as an autonomous source of international law. 3 Conclusion 4 concerns identification of general principles of law derived from national legal systems. To determine the existence and content of such a principle, it is necessary to ascertain (a) the existence of a principle common to the various legal systems of the world; and (b) its transposition to the international legal system. The following two conclusions specify the meaning of the above requirements for determination. Draft conclusion 5 provides that a determination of the existence of a principle common to the various legal systems of the world requires a comparative analysis of national legal systems. This analysis includes an assessment of national laws and decisions of national courts, and other relevant materials. Conclusion 6 addresses transposition and sets that “a principle common to the various legal 2 Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, June 16th – July 24 th , 1920 (The Hague, Van Langenhuysen Bros., 1920), pp. 331–336. 3 See Report of the International Law Commission on the work of its seventy-fourth session, Official Records of the General Assembly, Seventy-eighth Session, Supplement No. 10 (A/78/10), p. 16, para. 3.


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