CYIL vol. 14 (2023)

CYIL 14 (2023) THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING … systems of the world may be transposed in the international legal system in so far as it is compatible with that system”. Conclusion 7 addresses the identification of general principles of law formed within the international legal system. Paragraph 1 provides that, to determine the existence and content of those principles, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system. The term “intrinsic” means that the principle is specific to the international legal system and reflects and regulates its basic features. 4 Moreover, the second paragraph indicates that the draft conclusion is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system. Unfortunately, even the commentary to this draft conclusion did not bring much clarity to the problem, as the examples those general principles referred to by members of the Commission include mainly, if not exclusively, principles or customary rules of international law and general principles derived from national legal systems. 5 Draft conclusions 8 and 9 deal respectively with decisions of courts and tribunals and teachings of the most highly qualified publicists of the various nations. They may serve as a subsidiary means for the determination of general principles of law. Functions of general principles of law are explained in draft conclusion 10. According to its para. 1, 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”. In addition, para. 2 provides that they contribute to the coherence of the international legal system. They may serve, inter alia , (a) to interpret and complement other rules of international law, and (b) “as a basis for primary rights and obligations, as well as a basis for secondary and procedural rules”. Paragraphs 1 and 2(a) suggest a subsidiary function of general principles of law, which seems to be generally supported in theory and practice. The descriptive statement in para. 1 correctly reflects the role of these principles in contemporary international law. The last part of the conclusion includes a potentially far-reaching normative claim that is, however, moderated by the expression “may serve”. In the end, draft conclusion 11 addresses the relationship between general principles of law and treaties and customary international law. Its content is very important and complex and was an object of many controversies within the Commission. The first paragraph provides that general principles of law, as a source of international law, are not in a hierarchical relationship with treaties and customary international law. At first sight, this contradicts the subsidiary role that is played by general principles of law. On balance, para. 2 admits 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”. Finally, the last paragraph concerns any conflict between a general principle of law and two other sources. It suggests its resolution by applying generally accepted techniques of interpretation and conflict resolution in international law. It is only the commentary that may shed more light on this question. In spite of the revised and expanded commentaries to draft conclusions on General principles of law adopted on first reading, some issues still remain. They should be addressed in comments and observations sent by Governments before the Commission will start the second reading.

Ibid., p. 23, para. 4. Ibid., p. 22, fn. 34.

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