United Nations A/CN.

4/732
General Assembly Distr.: General
5 April 2019
English
Original: English and French

International Law Commission

Seventy-first Session
Geneva, 29 April–7 June and 8 July–9 August 2019

First report on general principles of law

by Marcelo Vázquez-Bermúdez, Special Rapporteur *

Contents
Page

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Inclusion of the topic in the Commission’s programme of work . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Purpose and structure of the report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Part One: General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. Scope and outcome of the topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Issues to be considered by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Final outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. Methodological approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Part Two: Previous work of the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I. References to general principles of law in the work of the Commission . . . . . . . . . . . . . . . . . . 11
II. Previous consideration by the Commission of issues relating to the present topic . . . . . . . . . . 16
Part Three: Development of general principles of law over time . . . . . . . . . . . . . . . . . . . . . . . . 20
I. Practice prior to the adoption of the Statute of the Permanent Court of International Justice . 20
II. “General principles of law recognized by civilized nations ” in Article 38 of the Statutes of
the Permanent Court of International Justice and the International Court of Justice . . . . . . . . . 25
III. General principles of law after the adoption of the Statutes of the Permanent Court of
International Justice and the International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

* The Special Rapporteur wishes to thank Ms. Xuan Shao (DPhil candidate at University of
Oxford) and Mr. Alfredo Crosato Neumann (PhD candidate at the Graduate Institute of
International and Development Studies) for their invaluable assistance with the preparation of
the present report.
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Part Four: Elements and origins of general principles of law . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

I. The elements of general principles of law in Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
A. “General principles of law” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. “Recognized” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
C. “Civilized nations” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
II. The origins of general principles of law as a source of international law . . . . . . . . . . . . . . . . . . 56
A. General principles of law derived from national legal systems . . . . . . . . . . . . . . . . . . . . . . 56
B. General principles of law formed within the international legal system . . . . . . . . . . . . . . 67
III. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Part Five: Future programme of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Annex
Proposed draft conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

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Introduction
I. Inclusion of the topic in the Commission’s programme
of work
1. At its sixty-ninth session, the Commission decided to include the topic “General
principles of law” in its long-term programme of work. 1
2. In the course of the debate in the Sixth Committee in 2017, delegations
emphasized the importance of the topic, and generally welcomed its inclusion in the
long-term programme of work. 2 Many delegations noted that the Commission’s work
on the topic would complement the existing work on the sources of international law
identified in Article 38, paragraph 1, of the Statute of the International Court of
Justice. It was also indicated that the topic was ripe for inclusion in the programme
of work of the Commission, and that it should be given priority. Delegations were
generally of the view that the Commission could provide authoritative clarification of
the nature, scope and function of general principles of law, as well as of the criteria
and methods for their identification. At the same time, possible difficulties related to
the topic were pointed out. 3 In its resolution 72/116, 4 the General Assembly took note
of the inclusion of the topic in the Commission’s long-term programme of work.
3. During its seventieth session, the Commission decided to include the topic in its
current programme of work and appointed Mr. Marcelo Vázquez -Bermúdez as
Special Rapporteur. The debate in the Sixth Committee in 2018 again showed general

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1
A/72/10, para. 267.
2
See Austria (“The source of international law known as ‘general principles of law’ was subject to
the most divergent interpretations and needed urgent clarification ”) (A/C.6/72/SR.18, para. 80);
Brazil (“the inclusion of the topic … in the Commission’s agenda would be in line with the work
recently or currently undertaken regarding other sources of international law ”) (A/C.6/72/SR.21,
para. 15); Chile (A/C.6/72/SR.19, para. 87); Czech Republic (A/C.6/72/SR.20, para. 20);
El Salvador (A/C.6/72/SR.19, para. 33); El Salvador (on behalf of the Community of Latin
American and Caribbean States) (A/C.6/72/SR.18, para. 38); Estonia (“the work could give a
comprehensive insight into the three principal sources of international law ”) (A/C.6/72/SR.20,
para. 75); Greece (“the Commission should undertake a thorough examinati on of the topic of
general principles of law, which was closely related to the topic of sources of international law ”)
(A/C.6/72/SR.19, para. 54); India (ibid., para. 15); Japan (A/C.6/72/SR.20, para. 68); Malawi
(A/C.6/72/SR.26, para. 137); Netherlands (A/C.6/72/SR.20, para. 24); New Zealand (ibid.,
para. 53); Peru (A.C.6/72/SR.19, para. 12); Poland (“general principles of law were the only
source of law applied by the International Court of Justice that had not been analysed by the
Commission”) (ibid., para. 96); Portugal (A/C.6/72/SR.18, para. 92); Romania (A/C.6/72/SR.19,
para. 86); Russian Federation (ibid., para. 48); Singapore (A/C.6/72/SR.18, para. 157); Slovakia
(“General principles of law were an essential complement to primary sources of international law
but had not been given much attention by the Commission to date. The considerat ion of the topic
was a natural next step, following the Commission’s work on the law of treaties, customary
international law and jus cogens”) (A/C.6/72/SR.19, para. 60); Slovenia (ibid., para. 19); Sweden
(on behalf of the Nordic Countries) (A/C.6/72/SR.18, para. 63); Thailand (A/C.6/72/SR.19,
para. 64); Turkey (A/C.6/72/SR.20, para. 83); United Kingdom of Great Britain and Northern
Ireland (A/C.6/72/SR.26, para. 109).
3
A/CN.4/713, para. 83.
4
General Assembly resolution 72/116 of 7 December 2017, para. 7.

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support for the topic. 5 In its resolution 73/265, 6 the General Assembly took note of
the inclusion of the topic in the current programme of work of the Commission.

II. Purpose and structure of the report

4. This first report is preliminary and introductory in nature. Its main purpose is to
lay the foundation for the future work of the Commission on the topic “General
principles of law”, as well as to obtain the views of members of the Commission and
States in this regard.
5. The report is divided into five parts. Part One addresses certain general matters.
Section I deals with the scope of the topic and sets out the main issues which, in the
view of the Special Rapporteur, should be addressed in the course of the work of the
Commission. It also suggests a possible outcome of that work. Section II addresses
questions of methodology.
6. Part Two deals with the previous work of the Commission related to general
principles of law.
7. Part Three provides an overview of the development of general principles of law
over time. Section I sets out the practice of States and adjudicative bodies relating to
this source of international law prior to the adoption of the Statute of the Permanent
Court of International Justice. Section II addresses the drafting history of Articl e 38
of the Statutes of the Permanent Court of International Justice and the International
Court of Justice. Finally, Section III briefly summarizes the practice relating to
general principles of law from 1920 to date.
8. Part Four makes an initial assessment of certain basic aspects of the present
topic. Section I focuses on Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice and addresses the elements contained therein, namely
the term “general principles of law”, the requirement of “recognition” and the term
“civilized nations”. Section II analyses the origins of general principles of law as a
source of international law. Finally, Section III provides some clarifications as regards
terminology.
9. Part Five of the report sets out a tentative future programme of work.

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5
Brazil (A/C.6/73/SR.21, para. 41); Colombia (A/C.6/73/SR.27, para. 35); Cuba (A/C.6/73/SR.23,
para. 54); Czech Republic (A/C.6/73/SR.21, para. 14); Ecuador (A/C.6/73/SR.23, para. 18);
El Salvador (on behalf of the Community of Latin American and Caribbean States)
(A/C.6/73/SR.20, para. 24); Estonia (A/C.6/73/SR.21, para. 58); Gambia (on behalf of the
African Group) (A/C.6/73/SR.20, para. 27); Iran (Islamic Republic of) (A/C.6/73/SR.24,
para. 14); Italy (A/C.6/73/SR.20, para. 82); Japan (ibid., para. 101); Malawi (A/C.6/73/SR.24,
para. 42); Mexico (A/C.6/73/SR.25, para. 57); Peru (A/C.6/73/SR.20, para. 86); Poland (ibid.,
para. 99); Portugal (A/C.6/73/SR.21, para. 3); Republic of Korea (A/C.6/73/SR.23, para. 70);
Russian Federation (A/C.6/73/SR.22, para. 50); Sierra Leone (ibid., para. 73); Singapore
(A/C.6/73/SR.20, para. 96); Slovakia (A/C.6/73/SR.21, para. 26); Togo (A/C.6/73/SR.22,
para. 103); United Kingdom (ibid., para. 77); United States (A/C.6/73/SR.29, para. 25, but also
stating the concern “that there might not be enough material on State practice for the
Commission to reach any useful conclusions”).
6
General Assembly resolution 73/265 of 22 December 2018, para. 7.

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Part One: General

I. Scope and outcome of the topic
10. The present topic concerns “general principles of law” as a source of
international law. In this regard, the Special Rapporteur recalls that the Commission
has made an important contribution in the sphere of the sources of international law.
Some of the most relevant work of the Commission has related, for instance, to the
law of treaties and to customary international law. In line with this, the C ommission
is in a position to clarify various aspects of general principles of law, and to do so in
a pragmatic way based on current law and practice. In undertaking this work, it is
expected that the Commission will provide guidance to States, internation al
organizations, courts and tribunals, and others called upon to deal with general
principles of law as a source of international law.
11. Since the adoption of the Statute of the Permanent Court of International Justice
in 1920, various practical and theoretical issues concerning general principles of law
have persisted. The practice of States and international courts and tribunals is
sometimes described as unclear or ambiguous. Furthermore, the abundance of
literature devoted to general principles of law shows not only the continuing relevance
of the topic, but also the diversity of views that exist and the need for clarification.
Against this background, and as the present topic is likely to touch upon certain
fundamental aspects of the international legal system, a cautious and rigorous
approach is required.
12. The following is a brief account of the main issues surrounding the topic which,
in the view of the Special Rapporteur, should be addressed and clarified by the
Commission. It is not intended to be an exhaustive list of all existing issues. The
objective is to obtain early views of the members of the Commission and States as
regards the future work on the topic.

A. Issues to be considered by the Commission

13. Without excluding other questions or aspects related to the present topic, it is
suggested that the Commission should address the issues below. Some of them are
dealt with in greater depth later in the present report.

1. The legal nature of general principles of law as a source of international law

14. Article 38, paragraph 1 (c), of the Statute of the International Court of Justice is
an authoritative statement of the legal nature of general principles of law as a source
of international law. It reads:
The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
…
(c) the general principles of law recognized by civilized nations.
15. This provision has been an important point of reference when general principles
of law have been addressed, both in practice and in the literature. In the view of the
Special Rapporteur, the starting point for the work of the Commission on this topic
should be Article 38, paragraph 1 (c), analysed in the light of the practice of State s
and the jurisprudence of international courts and tribunals.

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16. In this regard, the three elements found in Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice, namely the term “general principles of
law”, the requirement of “recognition” and the term “civilized nations”, ought to be
analysed by the Commission at the outset. Part Four below makes an initial
assessment of these elements.
17. Several questions arise in connection with this paragraph. For example, the
Commission would need to clarify whether the term “general principles of law”
provides any indication of the possible nature, content or functions of this source of
international law, its relationship with other sources of international law or its scope
of application.
18. The requirement of “recognition” is of particular importance, and perhaps at the
heart of the work of the Commission on the topic. The Commission can clarify a
number of issues in this regard, such as the different forms that recognition may take,
which materials are relevant when establishing that recognition exists and how to
weigh them, and to what extent such recognition is required.
19. Another issue to address is whose recognition is required and the meaning of
the term “civilized nations”. Many seem to be of the view that the term is
anachronistic and should no longer be employed. This may be considered the current
position of States, which have departed from that term in certain treaties subsequent
to the adoption of the Statutes of the Permanent Court of International Justice and the
International Court of Justice, such as the International Covenant on Civil and
Political Rights 7 and the Rome Statute of the International Criminal Court. 8
20. In connection with the issue of whose recognition is required, the Commission
may further consider whether international organizations and other actors may also
contribute to the formation of general principles of law as a source of international
law.

2. The origins of general principles of law

21. Immediately related to the above-mentioned issues is the question of the origins
of general principles of law as a source of international law. Different viewpoints on
this question exist, mainly in the literature but also in practice, and various categories
of general principles of law have been referred to depending on their origin.
22. Among the categories of general principles of law that may fall under Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice, two appear to
stand out: (a) general principles of law derived from national legal systems; and
(b) general principles of law formed within the international legal system. The present
report addresses these two categories in Part Four below.
23. In the literature on the topic, references are made to other categories of general
principles of law. One author, for example, considers that, in addition to the two
categories mentioned above, there also exist principles “intrinsic to the idea of law
and basic to all legal systems”, principles “valid through all kinds of societies in
relationships of hierarchy and coordination”, and principles founded on “the very
nature of man as a rational and social being”. 9 Similarly, another author maintains

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7
International Covenant on Civil and Political Rights (New York, 16 December 1966), United
Nations, Treaty Series, vol. 999, No. 14668, p. 171.
8
Rome Statute of the International Criminal Court (Rome, 17 July 1998), ibid., vol. 2187,
No. 38544, p. 3.
9
O. Schachter, “International law in theory and practice: General course in Public International
Law”, Collected Courses of the Hague Academy of International Law 1982 -V, vol. 178 (1982),
pp. 9–396, at pp. 74–75.

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that there are principles “applicable to all kinds of legal relations” and principles “of
legal logic”. 10

3. The functions of general principles of law and their relationship with other
sources of international law
24. Other important issues that the Commission may wish to consider are the
functions of general principles of law and their relationship with other sources of
international law, in particular treaties and custom. This, to a limited extent, has been
addressed by the Commission in its previous work. 11
25. A number of questions in this respect would require clarification. A widely held
view, for example, is that general principles of law are a supplementary 12 source of
international law in the sense that they serve to fill gaps in conventional and
customary international law, or to avoid findings of a non liquet. 13 If this is so, the
Commission may need to consider whether there exist gaps in international law in the
first place and how to define them. Similarly, the Commission may need to address
the precise meaning of non liquet and whether it is generally prohibited under
international law.
26. It has also been suggested that general principles of law, in addition to serving
as a direct source of rights and obligations, 14 may serve as a means to interpret other
rules of international law15 or as a tool to reinforce legal reasoning. 16 A more abstract

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10
H. Mosler, “General principles of law”, in R. Bernhardt (ed.), Encyclopedia of Public
International Law, vol. II (Amsterdam, Elsevier, 1995), pp. 511–526, at pp. 513–515.
11
See paras. 65–75 below.
12
The term “subsidiary” is often found in the literature. Yet this term also appears in Article 38,
paragraph 1 (d) of the Statute with respect to judicial decisions and teachings, and it may cause
confusion if used to describe general principles of law.
13
H. Thirlway, The Sources of International Law (Oxford University Press, forthcoming), pp. 125–
130; A. Pellet and D. Müller, “Article 38”, in A. Zimmermann and C.J. Tams (eds.), The Statute
of the International Court of Justice: A Commentary, 3rd ed. (Oxford, Oxford University Press,
2019), p. 923; M. Andenas and L. Chiussi, “Cohesion, convergence and coherence of
international law”, in M. Andenas et al. (eds.), General Principles and the Coherence of
International Law (Brill, 2019), pp. 10 and 14; C. Redgwell, “General principles of international
law”, in S. Vogenauer and S. Weatherill (eds.), General Principles of Law: European and
Comparative Perspectives (Hart, 2017), p. 7; F.O. Raimondo, General Principles of Law in the
Decisions of International Criminal Courts and Tribunals (Leiden, Martinus Nijhoff, 2008), p. 7;
J. G. Lammers, “General principles of law recognized by civilized nations ”, in F. Kalshoven et
al. (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), pp. 53–77, at p. 64; J. A. Barberis,
“Los Principios Generales de Derecho como Fuente del Derecho Internacional ”, Revista IIDH,
vol. 14 (1991), pp. 11–42, at pp. 14 and 29; M. Bogdan, “General principles of law and the
problem of lacunae in the law of nations”, Nordic Journal of International Law, vol. 46 (1977),
pp. 37–53, at p. 37; A. Blondel, “Les principes généraux de droit devant la Cour permanente de
Justice internationale et la Cour internationale de Justice”, in Recueil d’études de droit
international en hommage à Paul Guggenheim (Geneva, Institut universitaire de hautes études
internationales, 1968), pp. 201–236, at pp. 202 and 204; D. Anzilotti, Cours de droit
international (Editions Panthéon-Assas, 1929/1999), p. 117.
14
See para. 68 below. See also Pellet and Müller, “Article 38” (footnote 13 above), p. 941.
15
See para. 66 below. See also Andenas and Chiussi, “Cohesion, convergence and coherence of
international law” (footnote 13 above), pp. 10 and 14–15; Raimondo, General Principles of
Law … (footnote 13 above), p. 7; Lammers, “General principles of law recognized by civilized
nations” (footnote 13 above), pp. 64–65.
16
Pellet and Müller, “Article 38” (footnote 13 above), p. 944; Raimondo, General Principles of
Law … (footnote 13 above), p. 7; Blondel, “Les principes généraux de droit devant la Cour
permanente de Justice internationale et la Cour internationale de Justice ” (footnote 13 above),
p. 202.

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role is sometimes attributed to them, such as that they inform or underlie the
international legal system, 17 or that they serve to reinforce its systemic nature. 18
27. Another question related to the relationship between general principles of law
and other sources of international law is that of autonomy. Most of the literature
suggests that general principles of law are distinct from treaties and custom, a
proposition that is supported by a plain reading of Article 38 of the Statute of the
International Court of Justice as a whole. Some seem to deny such autonomy by
suggesting, for example, that a general principle of law must be somehow embodied
in treaties or customary international law. 19
28. The relationship between general principles of law and customary international
law, sometimes described as unclear, 20 deserves particular attention. 21 Nevertheless,
the fact that a rule of customary international law requires there to be a “general
practice accepted as law” (accompanied by opinio juris), while a general principle of
law needs to be “recognized by civilized nations”, should not be overlooked. This
suggests that these two sources are distinct and should not be confused.

4. The identification of general principles of law

29. As in the topic “Identification of customary international law”, the Commission
can provide practical guidance regarding how to identify general principles of law.
This issue is closely related to the meaning of the phrase “recognized by civilized
nations” employed in Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice insofar as one may have to look at the ways and means in which
general principles of law are recognized in order to identify them.
30. The method for identifying general principles of law will depend on the
conclusions that the Commission adopts concerning the issues set out above. 22 For
example, in order to identify general principles of law derived from national legal
systems, a two-step analysis may be required: first, identifying a principle common
to a majority of national legal systems; second, determining whether that p rinciple is
applicable in the international legal system. 23

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17
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14,
Separate Opinion of Judge Cançado Trindade, at p. 152, para. 41 (“It is in the light of [general
principles of law] that the whole corpus of the droit des gens is to be interpreted and applied”);
C. W. Jenks, The Common Law of Mankind (London, Stevens and Sons, 1958), p. 106.
18
Andenas and Chiussi, “Cohesion, convergence and coherence of international law” (footnote 13
above), pp. 10 ff.
19
See, for example, G. Tunkin, Theory of International Law, L. N. Shestakov (ed.) and William E.
Butler (transl. and ed.) (Wildy, Simmons and Hill, 2003), pp. 145–157; G.I. Tunkin,
“Co-existence and international law”, Collected Courses of the Hague Academy of International
Law, vol. 95 (1958), pp. 1–81, at p. 26; V. M. Koretsky, “Общие Принципы Права” в
Международном Праве [“General Principles of Law” in International Law”] (Kiev, Ukrainian
Academy of Sciences, 1957).
20
B. Cheng, General Principles of Law as Applied by International Courts and Tribunals
(Cambridge, Cambridge University Press, 1953), p. 23. See also paras. 70–71 below.
21
See, for example, Pellet and Müller, “Article 38” (footnote 13 above), p. 943 (“general principles
of law are ‘transitory’ in the sense that their repeated use at the international level transforms
them into custom and therefore makes it unnecessary to have recourse to the underlying general
principles of law”). See also P. Palchetti, “The role of general principles in promoting the
development of customary international rules”, in M. Andenas et al. (eds.), General Principles
and the Coherence of International Law (Brill, 2019), pp. 47–59.
22
General principles of law have been described as a “heterogeneous concept”, in the sense that
their nature and method of identification may vary depending on which category of general
principles of law is in question. See Lammers, “General principles of law recognized by civilized
nations” (footnote 13 above), pp. 74–75
23
See Parts Three and Four below.

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31. If, on the other hand, the Commission arrives at the conclusion that general
principles of law comprise principles formed within the international legal system,
not based on principles common to national legal systems, the method for
identification may be different. The two-step analysis mentioned above may not be
necessary, but “recognition” in the sense of Article 38, paragraph 1 (c), of the Statute
would still need to be established.
32. Moreover, the Commission can clarify the role of judicial decisions and
teachings as “subsidiary means” in the sense of Article 38, paragraph 1 (d), of the
Statute in the identification of general principles of law. In this regard, views that the
decisions of international courts and tribunals are not only an aid in the identification
of general principles of law, but play also a substantive role in the formation of this
source of international law may need to be addressed. 24
33. The Commission may also wish to consider whether there may be general
principles of law in the sense of Article 38, paragraph 1 (c), of the Statute that are not
universal but rather regional, or even principles that are applicable in bilateral
relations. 25

B. Final outcome

34. The Special Rapporteur considers that the outcome of the present topic should
take the form of conclusions accompanied by commentaries. A first draft conclusion
on the scope of the topic seems warranted at this stage:

“Draft conclusion 1: Scope

The present draft conclusions concern general principles of law as a source of
international law.”

II. Methodological approach

35. The work of the Commission will be based primarily on the practice of States.
This includes, inter alia, statements, diplomatic exchanges, pleadings before
international courts and tribunals, treaties and their drafting histories, and decisions
of national courts.
36. The practice of international organizations may also be analysed if considered
relevant for purposes of the present topic.
37. The jurisprudence of international courts and tribunals will be analysed as well.
The objective is to be as comprehensive as possible in covering the existing case law
relevant to the topic.
38. A crucial methodological question in the present top ic is how to select the
relevant materials for its study. Terms such as “principle”, “general principle”,
“general principle of law”, “general principle of international law” and “principle of
international law” are often found in practice and in the literature, usually without a
clear indication as regards the source of such principles. It may well be the case that,
while such terms are employed on a given occasion, reference is being made to a rule
of conventional or customary international law and not to a general principle of law
__________________
24
See, for example, J. R. Leiss, “The juridical nature of general principles”, in M. Andenas et al.
(eds.), General Principles and the Coherence of International Law (Brill, 2019), pp. 79–99.
25
See, for example, R. Kolb, La bonne foi en droit international public (Geneva, Presses
universitares de France, 2000), pp. 50–52; Lammers, “General principles of law recognized by
civilized nations” (footnote 13 above), p. 63.

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in the sense of Article 38, paragraph 1 (c), of the Statute. How is one to make the
distinction?
39. In order for the Commission to select the relevant materials, the Special
Rapporteur considers that it is necessary to take into account certain factors. These
include:
(a) Whether Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice is expressly referred to;
(b) Whether Article 38, paragraph 1 (c), of the Statute is implicitly referred to
(for example, by employing the term “general principles of law”);
(c) Whether a legal norm is invoked or applied in the absence of a rule of
conventional or customary international law;
(d) Whether, even though the terms “principle”, “general principle” or other
similar terms are employed, there is a conventional or customary rule addressing the
situation at hand; 26
(e) Whether the instrument governing the functioning of a court or tribunal
contains an applicable law provision that includes general principles of law. 27
To the extent possible, the Special Rapporteur has taken these factors into account
when selecting the materials that are discussed below.
40. Scholarly work on general principles of law will also be considered in an
integrated and systematic manner with the rest of the materials. In this connection,
the Commission could provide a widely representative bibliography containing the
main writings related to the topic at the end of its work.
41. Examples of general principles of law will certainly be r eferred to in the course
of the Commission’s work on the present topic and in the commentaries that will
accompany the draft conclusions. However, in line with the practice of the
Commission, the Special Rapporteur considers that those references should be for
illustration only and that the Commission should not address the substance of general
principles of law. 28

__________________
26
It may be the case that a rule of conventional or customary international law addresses the same
issue that a general principle of law does. An illustration of this is the principle of res judicata as
applied by the International Court of Justice, which, while often referred to as a general principle
of law, is also linked to Articles 59, 60 and 61 of the Statute of the Court. In such cases, it may
be necessary to stop and ask whether the Court is applying a general principle of law or a treaty
rule, or both at the same time.
27
Arguably, and as it appears from some of the case law that is discussed below, general principles
of law may not need to be expressly referred to in a statute or compromis for a court or tribunal
to apply them.
28
See the approach adopted by the Commission in its draft conclusions on the identification of
customary international law (para. (6) of the commentary to conclusion 1, A/73/10, paras. 65–66,
at p. 124).

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Part Two: Previous work of the Commission

42. Before starting the analysis of the issues set out in Part One, it is useful to recall
the previous work of the Commission that may be relevant for the consideration of
the present topic. 29 The intention of the Special Rapporteur is to build on that work
as appropriate.
43. General principles of law have appeared in the work of the Commission, ofte n
in a discrete manner, since its early years. For convenience, that work is divided in
two parts: first, references to general principles of law within the Commission,
including examples of such principles; second, the previous consideration by the
Commission of certain aspects of the present topic that were outlined above.

I. References to general principles of law in the work of

the Commission
44. References to “principles”, “general principles”, “general principles of law” and
other similar terms can be found throughout the work of the Commission. As is often
the case elsewhere, however, it is not always entirely clear whether those references
are to general principles of law in the sense of Article 38, paragraph 1 ( c), of the
Statute of the International Court of Justice or to something else. One should therefore
assess the work of the Commission with caution.
45. The examples that are given below are illustrative only and not exhaustive. They
include references to general principles of law in statements by the Commission as a
whole, in statements by individual members of the Commission in the course of
debates, in reports submitted by Special Rapporteurs on various topics, and in
memorandums prepared by the Secretariat.
46. As part of the topic “Formulation of the Nürnberg Principles” (Principles of
International Law Recognized in the Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal), the Commission formulated a number of “principles of
international law” related to criminal matters. In the course of its deliberations, the
Commission considered the question of whether it “should ascertain to what extent
the principles contained in the Charter [of the International Military Tribunal] and
judgment constituted principles of international law”. It concluded that “since the
Nürnberg principles had been affirmed by the General Assembly, the task entrusted
to the Commission … was not to express any appreciation of these principles as

__________________
29
Another account of the work of the Commission relating to general principles of law can be
found in the 2018 draft report of the International Law Association on “The use of domestic law
principles in the development of international law” (paras. 106–181). The report has a somewhat
different approach, focus being on references to domestic law principles within the work of the
Commission. It states that, “in accordance with its mandate, the Study Group, expressly focused
on general principles derived from domestic law, without discussing whether general principles
could also derive from other sources” (ibid., para. 2). The report also states that “[t]he Study
Group has concluded its work but, considering the complexity and continuing relevance of the
topic, it would recommend that the Association considers establishing a Committee with broader
representation to contribute to the work of the … International Law Commission on the broader
topic of general principles of law (including other potential sources from which general
principles could be derived)” (ibid., p. 70). See also resolution 9/2018 adopted at the 78th
Conference of the International Law Association, held in Sydney, Australia, from 19 to
24 August 2018.

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principles of international law but merely to formulate them”. 30 Thus, the principles
elaborated by the Commission should be understood in the light of this limited task.
47. A question arose during the debates of the Commission on that topic regarding
the legal nature of the right of self-defence of the accused. One member considered
that
the right of self-defence was certainly a principle of international law which had
been recognized in the Charter and the Judgment and which at the same time
constituted one of the general principles of law recognized by civilized nations,
referred to in paragraph 1 (c) of Article 38 of the Statute of the International
Court of Justice. 31
On this point, another member commented that “general principles of law mentioned
in [Article 38, paragraph 1 (c)] were principles of municipal law” and that “[i]t could
not therefore be held that there was a principle of international law in that matter,
which, moreover, came under penal procedure”. 32 This view was objected to on the
basis that nothing in that provision limits it to princip les of municipal law. It was
stated that “the Statute of the Court referred in that paragraph to the principles of
international law as well as to the principles of municipal law”. 33
48. In its draft articles on the continental shelf and related subjects, t he Commission
noted, in the commentary to draft article 2 (on the exercise by the coastal State of
control and jurisdiction over the continental shelf), that
[t]he Commission has not attempted to base on customary law the right of a
coastal State to exercise control and jurisdiction for the limited purposes stated
in article 2 … It is sufficient to say that the principle of the continental shelf is
based upon general principles of law which serve the present -day needs of the
international community. 34
49. References to general principles of law were also made in the work of the
Commission related to arbitral procedure. In a first draft on arbitral procedure, in
1952, the Commission took the view that “the arbitral tribunal is always entitled to
adjudicate on the basis of general principles of law considered to be rules of positive
law, but is not entitled to act as amiable compositeur, that is, to judge contra legem,
without the consent of the parties”. 35 The Commission also considered, with respect
to draft article 12, that
paragraph 2 contains one of the most important stipulations in the whole draft.
It corresponds to the general rule of law recognized in a large number of the

__________________
30
Yearbook … 1950, vol. II, document A/1316, p. 374, para. 96. See also Yearbook … 1949, p. 133,
para. 35; Yearbook … 1950, vol. II, document A/CN.4/22, p. 189, para. 36.
31
Yearbook … 1949, p. 205, para. 75.
32
Ibid., p. 206, para. 80. Spiropoulos also said that “[t]he meaning of that paragraph was that the
Court should, when necessary, apply the general principles of municipal law in the settlement of
international disputes” (ibid.).
33
Ibid., p. 206, para. 81. Scelle pointed out, however, that “any principle of international law had
its origin in custom … Before becoming a principle of international law, therefore, any principle
was first a general principle of municipal law and at both stages of its development it could be
applied by the Court in international matters” (ibid.).
34
Para. 6 of the commentary to art. 2 of the draft articles on the continental shelf and related
subjects, Yearbook … 1951, vol. II, document A/1858, annex, at p. 142.
35
Para. (8) of the commentary to art. 9 of the draft on arbitral procedure, Yearbook … 1952, vol. II,
document A/2163, chap. II, at p. 63. See also Yearbook … 1953, vol. I, 194th meeting, pp. 63–64,
para. 73.

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juridical systems of the world according to which a judge may not refuse
judgment on the ground of the silence or obscurity of the law. 36
50. Draft article 12 was subject to further debate in 1958, with a proposal being
made to delete it. 37 The provision was finally retained as article 11 (“The tribunal may
not bring in a finding of non liquet on the ground of the silence or obscurity of the
law to be applied”). 38 The Commission also adopted article 10, concerning the
possibility for an arbitral tribunal to apply, inter alia, “general principles of law
recognized by civilized nations” in the absence of any agreement between the parties
as to the law to be applied. 39
51. Within the context of its work on the law of treaties, various references to
general principles of law were made. It was suggested by the Special Rapporteur, Sir
Hersch Lauterpacht, for example, that “the conditions of the validity of treaties, their
execution, interpretation and termination are governed by international custom and,
in appropriate cases, by general principles of law recognized by civilized nations”. 40
Mention was also made of general principles of law concerning the voidance of
contractual agreements whose object is illegal, 41 fraus omnia corrumpit, 42 error as a
defect of consent, 43 and exceptions to the pacta tertiis rule. 44
52. In its draft articles on succession of States in respect of State property, archives
and debts, the Commission referred to the “general principle” of equity in the context
of movable State property, which “should never be lost from view and which, in such
cases, enjoins apportionment of the property between the successor State or States
and the predecessor State”. 45
53. Article 33 of the draft statute for an international criminal court provided that
the court shall apply, inter alia, “[a]pplicable treaties and the principles and rules of
general international law”. 46 The commentary to this provision specified that “[t]he
expression ‘principles and rules’ of general international law includes general
principles of law, so that the court can legitimately have recourse to the whole corpus
of criminal law, whether found in national forums or in international practice,
whenever it needs guidance on matters not clearly regulated by treaty”. 47
54. The Commission also appears to have identified a nu mber of “general
principles” in the context of its work related to the draft code of crimes against the
peace and security of mankind. It recognized, based on the Nürnberg principles, the
__________________
36
Para. (2) of the commentary to art. 12 of the draft on arbitral procedure, Yearbook … 1952,
vol. II, document A/2163, chap. II, at p. 64. See also Yearbook … 1953, vol. I, 188th meeting,
p. 24, paras. 25–26; Yearbook … 1958, vol. I, 441st and 442nd meetings, pp. 46–49,
paras. 17−52.
37
Yearbook … 1958, vol. I, pp. 50–54, paras. 69–74 and paras. 1–42, respectively.
38
Yearbook … 1958, vol. II, document A/3859, pp. 84 ff., para. 22.
39
Ibid.
40
Yearbook … 1953, vol. II, document A/CN.4/63, pp. 90, 105–106, draft art. 3 and comments
thereto of the articles on the law of treaties proposed by the Special Rapporteur on the topic.
41
Ibid., p. 155, comment to draft art. 15, para. 5.
42
Yearbook … 1963, vol. I, 679th meeting, pp. 32–38, paras. 2–60.
43
Ibid., 680th meeting, pp. 41–43, paras. 19–60.
44
Para. (1) of the commentary to draft art. 62 of the draft articles on the law of treaties,
Yearbook … 1964, vol. II, document A/CN.4/167 and Add.1–3, p. 20.
45
Para. (8) of the commentary to sect. 2 of the draft articles on succession of States in respect of
State property, archives and debts, Yearbook … 1981, vol. II (Part Two), p. 30.
46
Art. 33 of the draft statute for an international criminal court, Yearbook … 1994, vol. II (Part
Two), para. 91, at p. 51.
47
Para. (2) of the commentary to art. 33, ibid. See also para. (5), ibid., at p. 52. For previous
debates of the Commission on this issue, see Yearbook … 1992, vol. I, 2254th to 2264th
meetings, pp. 3–69; ibid., vol. II (Part Two), p. 14, para. 77; Yearbook … 1993, vol. II (Part
Two), p. 17, para. 63.

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“general principle of the direct applicability of international law with respect to

individual responsibility and punishment for crimes under international law ”. 48 It
similarly recognized the “general principle of the autonomy of international law over
national law with respect to the criminal characterization of conduct co nstituting
crimes under international law”. 49 Notably, the Commission also stated that the fact
that it is not necessary for an individual to know in advance the precise punishment
for a crime is “in accord with the precedent of punishment for a crime under
customary international law or general principles of law as recognized in the
Judgment of the International Military Tribunal for the Prosecution and Punishment
of the Major War Criminals of the European Axis (Nürnberg Tribunal) and in
article 15, paragraph 2, of the International Covenant on Civil and Political Rights ”. 50
55. The Commission likewise referred to “general principles of criminal law
relating to complicity”, 51 as well as the “general principle” of aut dedere aut
judicare 52 and of fair trial. 53
56. Articles 14 and 15 of the draft code deal with the admissibility of defences and
extenuating circumstances, both of which must be taken into account “in accordance
with the general principles of law”. 54 With respect to article 14, the Commission
explained that a competent court must consider the validity of a defence under general
principles of law, which limits the possible defences to those that are “well-
established and widely recognized as admissible with respect to similarly serious
crimes under national or international law”. 55 Similar conclusions were reached as
regards extenuating circumstances. 56 The Commission considered that, in order to
determine the applicable general principles which govern these questions, guidance
could be drawn from the case law of military tribunals and national courts after the
trials of the major war criminals by the Nürnberg Tribunal. 57
57. The Commission also referred to various “principles”, “general principles”,
“general principles of law” and “general principles of international law” in its articles
on the responsibility of States for internationally wrongful acts. 58 In connection with
article 3, for example, the Commission identified the “principle” according to which
the characterization of an act of a State as internationally wrongful is not affected by
the characterization of the same act as lawful by internal law. 59

__________________
48
Para. (8) of the commentary to art. 1 of the draft Code against the Peace and Security of
Mankind, Yearbook … 1996, vol. II (Part Two), para. 50, at p. 18.
49
Para. (12), ibid.
50
Para. (7) of the commentary to art. 3, ibid., at p. 23.
51
Para. (5) of the commentary to art. 6, ibid., at p. 26.
52
Para. (2) of the commentary to art. 9, ibid., at p. 31.
53
Para. (4) of the commentary to art. 11, ibid., at p. 34. References to certain “general principles of
criminal law” were also made in the debates of the Commission on the topic. See, for example,
Yearbook … 1985, vol. I, p. 15, para. 23, p. 20, paras. 51–52, p. 27, para. 42, p. 38, para. 27,
pp. 52–53, paras. 35–36; Yearbook … 1986, vol. I, p. 140, para. 43, pp. 141–142, paras. 58 and
61, p. 150, paras. 1 and 4, p. 151, paras. 11 and 14–16, p. 177, para. 36; Yearbook … 1988, vol. I,
p. 287, paras. 46–47.
54
Yearbook … 1996, vol. II (Part Two), para. 50, at pp. 39 and 42.
55
Para. (3) of the commentary to art. 14, ibid., at p. 39. See further discussions on this issue in
Yearbook … 1991, 2236th meeting, vol. I, pp. 192–194, paras. 66–94.
56
Para. (3) of the commentary to art. 15, Yearbook … 1996, vol. II (Part Two), para. 50, at p. 42.
57
Para. (4), ibid.
58
Similar references have been made in the topic “Responsibility of international organizations”.
See Yearbook … 2011, vol. II (Part Two).
59
Commentaries to arts. 3 and 32 of the articles on the responsibility of States for internationally
wrongful acts, Yearbook … 2001, vol. II (Part Two) and corrigendum, paras. 76–77, at pp. 36–38,
94.

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58. In terms of attribution, the Commission referred to the “general principle”

according to which the conduct of private persons or entities, as we ll as unsuccessful
insurrectional movements, is not attributable to the State. 60 The Commission also
referred to the “general principle” of intertemporal law 61 and the “general principle”
according to which the legal consequences of an internationally wrongf ul act do not
affect the continued duty of the State to perform the obligation it has breached. 62 With
respect to force majeure, the Commission considered that it “may qualify as a general
principle of law”. 63
59. In its principles on the allocation of loss in the case of transboundary harm
arising out of hazardous activities, the Commission indicated that “[s]ome general
principles concerning payment of compensation have evolved over a period of time
and were endorsed by the [International Court of Justice] and other international
tribunals”. 64 During the debates of the Commission, reference to general principles of
law in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court
of Justice, such as the “polluter pays” principle, was also made. 65
60. In the context of its work on diplomatic protection, the Commission considered
that, in case of direct injury to shareholders and where the company is incorporated
in the wrongdoing State, “there may be a case for the invocation of general principles
of company law in order to ensure that the rights of foreign shareholders are not
subjected to discriminatory treatment”. 66 Similarly, the Commission was of the
opinion that, in case of joint exercise of the right of diplomatic protection, proble ms
relating to such situations “should be dealt with in accordance with the general
principles of law recognized by international and national tribunals governing the
satisfaction of joint claims”. 67
61. The Commission’s Study Group on fragmentation of international law, referred
in its conclusions to the “general principle”, “maxim” or “generally accepted
technique of interpretation and conflict resolution” of lex specialis derogat legi
generali, 68 to the “principle” of lex posterior derogat legi priori, 69 and to the
“principle of harmonization” as a “generally accepted principle that when several
norms bear on a single issue, they should, to the extent possible, be interpreted so as
to give rise to a single set of compatible obligations”. 70
62. During the debate on the 2005 report of the Study Group on the same topic, one
member of the Commission noted that the report contained “fairly vague references
to ‘general principles of international law’”. He expressed the view that, at least in
French, a clear distinction exists between “les principes généraux du droit
international” and “les principes généraux de droit reconnus par les nations
__________________
60
Commentaries to arts. 8 and 10, ibid., at pp. 47, 50 and 52.
61
Commentary to art. 13, ibid., pp. 57–59.
62
Para. (2) of the commentary to art. 29, ibid., paras. 76–77, at p. 88.
63
Para. (8) of the commentary to art. 23, ibid., at p. 78. In a study of 1978, the Secretariat also
referred to the possibility of force majeure being a general principle of law (see Yearbook …
1978, vol. II (Part One), document A/CN.4/315, pp. 206–207, paras. 525–529).
64
Para. (18) of the commentary to principle 3 of the principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, Yearbook … 2006, vol. II (Part Two), paras.
66–67, at p. 76.
65
See, for example, Yearbook … 2003, vol. I, 2766th meeting, p. 107, para. 32, and p. 109,
para. 48.
66
Para. (4) of the commentary to art. 12 of the articles on diplomatic protection, Yearbook … 2006,
vol. II (Part Two),paras. 49–50, at p. 43.
67
Para. (4) of the commentary to art. 6, ibid., p. 34.
68
Para. (5) of the conclusions of the Study Group on fragmentation of international law, ibid.,
para. 251, at p. 178.
69
Paras. (24)–(27), ibid., at p. 181.
70
Para. (4), ibid., at p. 178.

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civilisées”, the latter being those under Article 38, paragraph 1 ( c), of the Statute of
the International Court of Justice. 71
63. In its commentaries in the Guide to Practice on Reservations to Treaties, the
Commission made reference to the “general principles” of good faith and
reciprocity. 72 With respect to the latter, the Commission was of the opinion that it “is
recognized not only as a general principle, but also as a principle that applies
automatically, requiring neither a specific clause in the treaty nor a unilateral
declaration by the States or international organizations that have accepted the
reservation to that effect”. 73
64. Other norms that have been considered general principles of law in the course
of the Commission’s work include those relating to the connection between
counter-claims and main claim, 74 division of costs and expenses, 75 public reading of
judicial decisions, 76 abuse of rights, 77 ex injuria jus non oritur, 78 freedom of
consent, 79 voidance of contractual agreements whose object is illegal, 80 competence-
competence 81 and the notion of “shared expectation”. 82

II. Previous consideration by the Commission of issues relating

to the present topic
65. In addition to the references to and examples of general principles of law found
throughout its work, the Commission has addressed specific issues that relate to the
present topic and which were outlined in Part One.
66. The conclusions of the work of the Study Group on fragmentation of
international law, 83 for example, are relevant to some aspects of the present topic,
including as regards the relationship between general principles of law and other
sources of international law, as well as the functions of general principles of law. The
following conclusions adopted by the Study Group are worth highlighting:
(a) In the context of the maxim lex specialis derogat legi generali, the “source
of a norm (whether treaty, custom or general principle of law) is not decisive for the
determination of the more specific standard. However, in practice treaties often act as

__________________
71
Yearbook … 2005, vol. I, 2860th meeting, p. 218, para. 60.
72
Para. (5) of the commentary to guideline 3.1.5 and para. (33) of the commentary to
guideline 4.2.4 of the Guide to Practice on Reservations to Treaties, Yearbook … 2011, vol. II
(Part Three), at pp. 213 and 271, respectively.
73
Para. (33) of the commentary to guideline 4.2.4, ibid., p. 271.
74
Yearbook … 1953, vol. I, 188th meeting, p. 27, para. 75.
75
Ibid., 192nd meeting, p. 53, para. 98.
76
Ibid., 193rd meeting, p. 57, para. 65.
77
Ibid., 236th meeting, p. 362, para. 92, and p. 376, paras. 67–68; Yearbook … 1953, vol. II,
p. 219, para. 100.
78
Yearbook … 1953, vol. II, A/CN.4/63, p. 148, para. 3 of the comment to draft art. 12 of the
articles on the law of treaties proposed by the Special Rapporteur on the topi c.
79
Ibid., p. 149, para. 6.
80
Ibid., p. 155, para. 5 of the comment to draft art. 15 of the articles on the law of treaties proposed
by the Special Rapporteur on the topic.
81
Yearbook … 1958, vol. I, 441st meeting, p. 45, para. 8.
82
Yearbook … 1982, vol. I, 1739th meeting, p. 243, para. 6.
83
Yearbook … 2006, vol. II (Part Two), p. 177, para. 251.

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lex specialis by reference to the relevant customary law and general principles [of
law]”; 84
(b) One of the roles of general law (including general principles of law) in
special regimes is that of gap-filling; 85
(c) General principles of law can serve as a source external to a treaty for
purposes of interpretation under article 31, paragraph 3 (c), of the Vienna Convention
on the Law of Treaties; 86
(d) The objective of systemic integration applies as a presumption with
positive and negative aspects: “(a) the parties are taken to refer to customary
international law and general principles of law for all questions which a treaty does
not resolve in express terms; (b) in entering into treaty obligations, [States] do not
intend to act inconsistently with generally recognized principles of international
law”; 87
(e) General principles of law are of particular relevance to the interpretation
of a treaty, especially where: “(a) the treaty rule is unclear or open-textured; (b) the
terms used in the treaty have a recognized meaning … under general principles of
law; (c) the treaty is silent on the applicable law and it is necessary for the interpreter,
applying the presumption [of systemic integration], to look for rules developed in
another part of international law to resolve the point ”; 88
(f) “The main sources of international law (treaties, custom and general
principles of law …) are not in a hierarchical relationship inter se.” 89
67. The Study Group also considered the distinction between “rules” and
“principles”, noting that it “captures one set of typical relationships, namely those
between norms of a lower and higher degree of abstraction. A ‘rule’ may thus
sometimes be seen as a specific application of a ‘principle’ and understood as lex
specialis or lex posterior in regard to it, and become applicable in its stead ”. 90

__________________
84
Para. (5) of the conclusions of the Study Group on fragmentation of international law, ibid., at
p. 178. See also “Fragmentation of international law: difficulties arising from the diversification
and expansion of international law”, report of the Study Group of the International Law
Commission finalized by Martti Koskenniemi (A/CN.4/L.682 and Corr. 1 and Add.1) (available
on the Commission’s website, documents of the fifty-eighth session; the final text will be
published as an addendum to Yearbook … 2006, vol. II (Part One)), para. 66.
85
Para. (15) of the conclusions of the Study Group on fragmentation of international law,
Yearbook … 2006, vol. II (Part Two), at p. 179.
86
Para. (18), ibid., at p. 180. See also “Fragmentation of international law: difficulties arising from
the diversification and expansion of international law”, report of the Study Group of the
International Law Commission, finalized by Martti Koskenniemi ( A/CN.4/L.682 and Corr.1 and
Add.1) (see footnote 84 above), para. 469. For the Vienna Convention on the Law of Treaties
(Vienna, 23 May 1969), see United Nations, Treaty Series, vol. 1155, No. 18232, p. 331.
87
Para. (19), Yearbook … 2006, vol. II (Part Two), at p. 180. See also “Fragmentation of
international law: difficulties arising from the diversification and expansion of international
law”, report of the Study Group of the International Law Commission, fina lized by Martti
Koskenniemi (A/CN.4/L.682 and Corr.1 and Add.1) (see footnote 84 above), para. 465.
88
Para. (20), Yearbook … 2006, vol. II (Part Two), at p. 180.
89
Para. (31), ibid., at p. 182. See also “Fragmentation of international law: difficulties arising from
the diversification and expansion of international law”, report of the Study Group of the
International Law Commission, finalized by Martti Koskenniemi ( A/CN.4/L.682 and Corr.1 and
Add.1) (see footnote 84 above), para. 85 (“Any court or lawyer will first look at treaties, then
custom and then the general principles of law for an answer to a normative problem ”).
90
“Fragmentation of international law: difficulties arising from the diversification and expansion of
international law”, report of the Study Group of the International Law Commission, finalized by
Martti Koskenniemi (A/CN.4/L.682 and Corr.1 and Add.1) (see footnote 84 above), para. 28.

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Additionally, the Study Group noted that “the general or earlier principle may be
understood to articulate a rationale or a purpose to the specific (or later) rule ”. 91
68. In its articles on the responsibility of States for internationally wrongful acts,
the Commission considered, in connection with article 12 (Existence of a breach of
an international obligation), that “international obligations may be established by a
customary rule of international law, by a treaty or by a general principle applicable
within the international legal order”. 92
69. The Special Rapporteur for the topic “Identification of customary international
law” envisaged the possibility of covering the relationship between customary
international law and general principles of law at the outset of his work. 93 This found
the support of some members of the Commission. 94
70. In his first report, the Special Rapporteur considered briefly the distinction
between general principles of law and customary international law. 95 He noted that:
(a) the distinction between the two is important, but not always clear in the case law
or the literature; (b) “general principles of law” are listed separately from customary
international law in Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice, and in the case law and literature this is sometimes taken to refer not
only to general principles common to the various systems of internal law but also to
general principles of international law; (c) the International Court of Justice may have
recourse to general principles of international law in circumstances when the criteria
for customary international law are not present; and (d) while it may be difficult to
distinguish between customary international law and general principles of law in the
abstract, whatever the scope of general principles of law it remains important to
identify those rules which, by their nature, need to be grounded in the actual practice
of States. 96 The Special Rapporteur also referred to the term “general international
law” in pointing out that “[a]t times the term is used to mean something broader than
general customary international law, such as customary international law together
with general principles of law, and/or together with widely accepted international
conventions”. 97 He suggested that it was “desirable that the specific meaning intended
by this term be made clear whenever the context leaves the meaning unclear ”. 98
71. The debate within the Commission on these issues was brief. Some members
agreed with the approach of the Special Rapporteur and considered that the
relationship between the two sources should be addressed. Some preliminary points
on that relationship were also made. One member, for example, noted that
[an] important interaction was the one that took place between customary
international law and the general principles of law, the latter often being used in
conjunction with or in place of the traditional criteria of customary law. It was
thus conceivable for a customary rule to be interpreted in the light of a
recognized general principle. The role of such principles was closely linked to
the formation and evidence of customary international law … The Commission

__________________
91
Ibid., para. 29.
92
Para. (3) of the commentary to art. 12 of the articles on the responsibility of States for
internationally wrongful acts, Yearbook … 2001, vol. II (Part Two) and corrigendum,
paras. 76−77, at p. 55. See also commentary to draft art. 17 of the draft articles on State
responsibility, Yearbook … 1976, vol. II (Part Two), para. 78, at pp. 80–87.
93
Yearbook … 2012, vol. II (Part One), document A/CN.4/653, p. 55, para. 14.
94
Ibid., vol. I, 3148th meeting, p. 138, para. 31, 3151st meeting, p. 164, para. 27, and
3152nd meeting, p. 173, para. 8.
95
A/CN.4/663, para. 36.
96
Ibid.
97
Ibid., para. 42. See also A/73/10, p. 123, footnote 667.
98
A/CN.4/663, para. 42.

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must be careful, however, not to exclude the possibility of identifying a general

principle as a source of international law, whether as a s tand-alone rule or as a
complement to other rules from other sources. 99
Another member suggested that “when general principles of law applicable under
national law were transposed frequently enough into international law, they became
customary rules of international law. The process by which that occurred was a mode
of formation that the Commission could not afford to overlook ”. 100 Yet another
member noted that the distinction between customary international law and general
principles of law was not always very clear in the case law and the literature, and
referred to the advisory opinion of the International Court of Justice on the Legality
of the Threat or Use of Nuclear Weapons as an example, “inasmuch as the Court had
based its conclusions on an analysis of customary international law, international
humanitarian law and general international law, without however clarifying the
relationship between those different sources”. 101 Also referring to the difficulty of
distinguishing customary international law from general principles of law, another
member raised the question of whether pacta sunt servanda was a general principle
of law, a rule of customary international law or a treaty rule, and suggested that “[t]he
criterion might be the presence or the absence of actual State practice”. 102 The view
was also expressed that the term “general international law” encompasses general
principles of law. 103
72. In his second report, the Special Rapporteur recalled that there was “general
agreement that the Commission would need to deal to some degree with the
relationship between customary international law and other sources of international
law, in particular treaties and general principles of law”. 104 At the same time, he
considered that the Commission should avoid entering int o matters relating to other
sources of international law that are better addressed separately. 105 This approach was
adopted by the Commission, which made it clear in the commentary to the draft
conclusions on the identification of customary international law that
no attempt is made to explain the relationship between customary international
law and other sources of international law listed in Article 38, paragraph 1, of
the Statute of the International Court of Justice (international conventions,
whether general or particular, and general principles of law); the draft
conclusions touch on the matter only in so far as is necessary to explain how
rules of customary international law are to be identified. 106
73. The relationship between general principles of law and peremptory norms of
general international law (jus cogens) was addressed by the Special Rapporteur for
the latter topic in his second report. 107 The focus of the Special Rapporteur was on
whether the term “general international law” in article 53 of the Vienna Convention
on the Law of Treaties encompasses general principles of law, and whether the latter
could constitute a basis for jus cogens norms.
__________________
99
Yearbook … 2013, vol. I, 3183rd meeting, p. 92, para. 14.
100
Ibid., 3182nd meeting, p. 89, para. 39.
101
Ibid., 3183rd meeting, p. 91, para. 5.
102
Ibid., 3184th meeting, p. 97, para. 21.
103
Ibid., p. 98, para. 30.
104
A/CN.4/672, para. 3.
105
Ibid., para. 14. Reactions to the Special Rapporteur’s decision not to cover the relationship
between customary international law and general principles of law may be found in:
A/CN.4/SR.3223, p. 11 (Mr. Caflisch); A/CN.4/SR.3226, pp. 3 (Mr. Šturma) and 6 (Mr. Hmoud);
A/CN.4/SR.3227, p. 6 (Sir Michael Wood).
106
Para. (6) of the commentary to conclusion 1 of the draft conclusion on identification of
customary international law, A/73/10, paras. 65–66, at p. 124.
107
A/CN.4/706, paras. 48–52.

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74. The Special Rapporteur indicated that “[g]eneral principles of law, like rules of
customary international law, are generally applicable”, but that there is little authority,
apart from literature, to maintain that general principles of law can be the basis for a
jus cogens norm. 108 After some analysis, he concluded that the term “general
international law” encompasses general principles of law 109 and proposed a draft
conclusion stating that they can serve as the basis for jus cogens norms. 110
75. The proposal of the Special Rapporteur was provisionally adopted by the
Drafting Committee with amendments. Draft conclusion 5, paragraph 2, as
provisionally adopted by the Drafting Committee reads: “Treaty provisions and
general principles of law may also serve as bases for peremptory norms of general
international law (jus cogens)”. 111

Part Three: Development of general principles of law

over time
76. In order to shed some light on the nature of general principles of law, and more
generally to provide some background and relevant materials to members of the
Commission, the present Part sets forth the practice of States and adjudicative bodies
prior to the adoption of the Statute of the Permanent Court of International Justice,
the drafting history of Article 38, paragraph 3, of the latter and Article 38,
paragraph 1 (c), of the Statute of the International Court o f Justice, and later
references to this source of international law in the practice of States and the decisions
of international courts and tribunals. 112

I. Practice prior to the adoption of the Statute of the

Permanent Court of International Justice
77. The Special Rapporteur finds it useful to recall the practice prior to the adoption
of the Statute of the Permanent Court of International Justice whereby rules or
principles deriving from sources other than treaties and custom were resorted to. As
some authors have pointed out, recourse to such rules or principles may be explained,
at least partly, by the fact that international law at the time was not sufficiently
developed to address all situations, yet disputes had to be settled all the same. 113
78. Many treaties concluded for the settlement of disputes from the eighteenth
century to the early twentieth century contained broad applicable law provisions.
They provided that adjudicative bodies had to decide the disputes submitted to them
on the basis of concepts such as “the law of nations”, “principles of international

__________________
108
Ibid., para. 48.
109
Ibid., para. 52.
110
Draft conclusion 5, paragraph 3, proposed by the Special Rapporteur read: “General principles of
law within the meaning of Article 38 (1) (c) of the Statute of the International Court of Justice
can also serve as the basis for jus cogens norms of international law” (ibid., p. 46). The general
debate on the report is available at A/CN.4/SR.3368–3370 and 3372–3374.
111
Statement of the Chair of the Drafting Committee, 26 July 2017, annex, p. 11.
112
The examples referred to below are not exhaustive. References to further materials will be
provided and analysed in more detail in Part Four below and in future reports.
113
A. Pellet, Recherche sur les principes généraux de droit en droit international (Université de
droit, d’économie et de sciences sociales, 1974), pp. 7 and 15; H. Laut erpacht, Private Law
Sources and Analogies of International Law (London, Longmans, 1927), p. 39. See also
H. Waldock, “General course on public international law”, Collected Courses of the Hague
Academy of International Law, vol. 106 (1962), p. 54.

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law”, “justice” and “equity”. 114 For example, the 1907 Hague Convention (XII)
Relative to the Creation of an International Prize Court, which never entered into
force but was later referred to during the drafting of Article 38, paragraph 3, of the
Statute of the Permanent Court of International Justice, provided in article 7 that if a
question was not covered by a treaty or a generally recognized rule of international
law, the court was to “give judgment in accordance with the general principles of
justice and equity”. 115
79. The 1899 and 1907 Hague Conventions for the Pacific Settlement of
International Disputes also contained a broad applicable law provision according to
which the settlement of disputes was to be made “on the basis of respect for law”
(arts. 15 and 37, respectively). As will be shown below, some arbitral tribunals
constituted under these Conventions applied rules or principles derived from sources
other than treaties and custom.
80. The Martens Clause in the preamble of the 1899 Convention (II) with Respect
to the Laws and Customs of War on Land is also worth highlighting, as it was
mentioned during the drafting of Article 38, paragraph 3, of the Statute of the
Permanent Court of International Justice. It provided that:
Until a more complete code of the law of war has been issued, the high
contracting parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws of humanity,
and the dictates of the public conscience. 116

__________________
114
See, for example, art. VII of the 1794 Treaty of Amity, Commerce and Navigation (“Jay Treaty”)
between Great Britain and the United States; art. IV of the 1839 Convention for the adjustment
of claims of citizens of the United States against Mexico; art. II of the 1860 Convention
concerning the adjustment of claims of citizens of the United States against Costa Rica; art. VI
of the 1871 Treaty of Washington between Great Britain and the United States (concluded to
settle the “Alabama Claims”); art. 6 of the 1882 Convention for the reparation of damages
caused to French citizens between Chile and France; art. 6 of the 1882 Arbitration Convention
between Chile and Italy; art. 4 of the 1896 Arbitration Agreement between Argentina and Chile;
art. II of the 1899 Arbitration Agreement for the settlement of claims between Italy and Peru;
Article XXII of the 1907 Convention for the Establishment of a Central American Court of
Justice; art. 7 of the 1910 Special Agreement for the submission to arbitration of pecuniary
claims outstanding between the United States and Great Britain. These and other relevant treaties
may be found in J. B. Moore, History and Digest of the International Arbitrations to Which the
United States Has Been a Party, 6 vols. (Washington, Government Printing Office, 1898) and
H. La Fontaine, Pasicrisie internationale 1794–1900: Histoire documentaire des arbitrages
internationaux (Bern, Stämpfli, 1902).
115
See paras. 95 and 97 below. A report prepared by the First Commission of the 1907 Hague Peace
Conference explained this provision as follows: “[The Court] is thus called upon to create the
law and to take into account other principles than those to which t he national prize court whose
judgment is appealed from was required to conform. We are confident that the judges chosen by
the Powers will be equal to the high mission thus entrusted to them, and that they will execute it
with moderation and firmness. They will point practice in the direction of justice without
upsetting it. A fear of their just decisions may mean the exercise of more wisdom by belligerents
and national judges, may lead them to make a more serious and conscientious investigation, and
thus prevent the adoption of regulations and the rendering of decisions which are too arbitrary ”.
See J. B. Scott, The Proceedings of The Hague Peace Conferences: The Conference of 1907 ,
vol. I (Oxford, Oxford University Press, 1920), pp. 189–190.
116
Procès-verbaux of the Proceedings of the Committee, June 16th–July 24th 1920 (The Hague,
Van Langenhuysen Bros., 1920), 13th meeting (see para. 97 below). The Martens Clause was
later also included in the Hague Convention (IV) respecting the Laws and Customs of War on
Land (1907) with identical wording, and in subsequent treaties with some modifications.

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81. In the context of dispute settlement, rules and principles derived from sources
other than treaties and custom were relied upon by States and adjudicative bodies,
both on the basis of applicable law provisions like the ones mentioned above and in
the absence thereof.
82. In the Cestus case (1870), for example, the arbitrator considered a claim by
Great Britain for the losses suffered by British vessels due to the closure by Argentina
of its ports as an act of warfare against Uruguay. After rejecting the arguments based
on certain treaty provisions of Great Britain, 117 the arbitrator proceeded to analyse
whether Argentina was obliged to indemnify the losses “in justice”. 118 That argument
was rejected on the ground, inter alia, that “it is a principle of universal jurisprudence
that he who uses his right offends no one”. 119
83. In the Alabama Claims arbitration between Great Britain and the United States
(1872), the tribunal was called upon to apply rules and principles related to due
diligence, measure of damages and payment of interests. 120 The reasoning of the
tribunal was concise, but the pleadings of the parties contained various references to
national laws in support of their arguments. 121
84. In the Fabiani case (1896), the arbitrator applied the concept of denial of justice
to damages suffered by a French national before Venezuelan courts. It elaborated upon
that concept by relying on the jurisprudence of the Swiss Federal Court, the French
Code on Civil Procedure and doctrine. It concluded notably that:
By reference to the general principles of the law of nations …, i.e., to the rules
common to most legislations or taught by doctrines, one comes to decide the
denial of justice comprises not only the refusal of a judicial authority to exercise
its duties … but also the obstinate delays on its part in rendering its sentences. 122
85. In the Pious Fund case between Mexico and the United States (1902), the
Tribunal was asked to determine whether a previous decision rendered by the Mexico -
United States Mixed Commission was governed by the principle of res judicata. 123 In
the course of the proceedings, both parties relied extensively on the domestic law of

__________________
117
La Fontaine, Pasicrisie internationale (footnote 114 above), pp. 64–66. The compromis
contained no applicable law provision.
118
Ibid., p. 66.
119
Ibid., p. 67.
120
Alabama claims of the United States of America against Great Britain, Award of 14 September
1872, Reports of International Arbitral Awards (UNRIAA), vol. XXIX, pp. 125–134.
121
See, for example, Case of the United States, to Be Laid before the Tribunal of Arbitration, to Be
Convened at Geneva under the Provisions of the Treaty between th e United States of America
and Her Majesty the Queen of Great Britain, Concluded at Washington, May 8, 1871
(Washington, D.C., Government Printing Office, 1872), pp. 150–158 (defining the rule of “due
diligence”). See also Lauterpacht, Private Law Sources and Analogies of International Law
(footnote 113 above), pp. 216–223.
122
La Fontaine, Pasicrisie internationale (footnote 114 above), p. 356 (see also Antoine Fabiani
Case, 31 July 1905, UNRIAA, vol, X, pp. 83–139, at p. 91). The arbitrator also relied on various
national legal systems to elaborate on standards of evidence (p. 362) and responsibility
(pp. 363−364).
123
The dispute was submitted to arbitration based on a compromis of 1902. The compromis contained
no applicable law provision. See The Pious Fund Case (United States of America v. Mexico),
Award of 14 October 1902, UNRIAA, vol. IX, pp. 1–14, at pp. 7–10. See also para. 101 below.

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various States and Roman law to advance their arguments. 124 In its award, the tribunal
considered that res judicata was a principle that applied to international arbitration. 125
86. In the Venezuelan Preferential Case (1904), 126 the arbitral tribunal decided,
based on “principles of International Law and the maxims of justice ”, that a right of
preferential treatment of certain pecuniary claims existed in favour of Germany, Great
Britain and Italy, with respect to other States with similar claims. 127 In the North
Atlantic Coast Fisheries case (1910), 128 the United States argued the existence of an
“international servitude” in its favour, which would deprive Great Britain from an
independent right to regulate fisheries with respect to United States’ nationals in
certain parts of Great Britain’s waters. In rejecting that claim, the tribunal relied, inter
alia, on French civil law and Roman law, and considered that such a servitude would
not suit inter-State relations. 129
87. In the Walfish Bay Boundary case between Germany and Great Britain (1911), 130
when defining the applicable law, the arbitrator considered that the two main
questions put to him
must be solved in conformity with the principles and positive rules of public
international law, and, where they fail, in conformity with the general principles
of law, since neither the said Agreement of 1890 [nor] the supplementary
Declaration of Berlin of the 30th January, 1909, in any way authorize the
arbitrator to base his decision on other rules, and it is notorious, according to
constant theory and practice, that such authority cannot be presumed. 131
88. Later, in the Russian Indemnity case (1912), 132 the arbitral tribunal was called
upon to decide on matters related to the payme nt of moratory or compensatory
interests. The tribunal considered that it was applying public international law, while
also relying on the domestic (civil) law of various States and Roman law. 133 It came
to the conclusion that “le principe général de la responsabilité des Etats implique une
responsabilité spéciale en matière de retard dans le payement d ’une dette d’argent, à
__________________
124
The parties referred to Roman Law, the Napoleon Code, and the law and case law from Belgium,
France, Germany, Mexico, the Netherlands, Prussia, Spain and the United States. See United
States vs. Mexico, Report of Jackson H. Ralston, Agent of the United States and of Counsel, in
the matter of the case of the Pious Fund of the Californias (Washington, Government Printing
Office, 1902), Answer of Mexico, pp. 7–8; Replication of the United States, pp. 7, 10;
Conclusions of Mexico, p. 11; Statement and Brief on Behalf of the United States, pp. 32, 46–47,
50–52; Record of Proceedings, pp. 123, 130, 131, 235, 309.
125
Pious Fund (footnote 123 above), p. 12. The principle of compétence-compétence was also
discussed and applied in this case.
126
The dispute was submitted to arbitration on the basis of a compromis concluded between
Venezuela, on the one hand, and Germany, Great Britain and Italy, on the other, in 1903. The
compromis included no applicable law provision, but did contain a reference to the 1899 Hague
Convention. See The Venezuelan Preferential Case (Germany, Great Britain, Italy, Venezuela et
al), Award of 22 February 1904, UNRIAA, vol. IX, pp. 105–106.
127
Ibid., pp. 108–110.
128
The North Atlantic Coast Fisheries Case (Great Britain, United States), Award of 7 September
1910, UNRIAA, vol. XI, pp. 167–226. The dispute was submitted to arbitration based on a
compromis which contained no applicable law provision, but did contain a reference to the 1907
Hague Convention (see pp. 173–178).
129
Ibid., pp. 181–182. The tribunal also referred to principle of good faith (pp. 186–189).
130
The Walfish Bay Boundary Case (Germany, Great Britain), Award of 23 May 1911, UNRIAA,
vol. XI, pp. 263–308. The dispute was submitted to arbitration based on a compromis with no
applicable law provision (see pp. 265–266).
131
Ibid., p. 294.
132
Affaire de l’indemnité russe (Russie, Turquie), Award of 11 November 1912, UNRIAA, vol. XI,
pp. 421–447. The compromis between the parties did not contain an applicable law provision, but
included a reference to the 1907 Hague Convention (see pp. 427–430).
133
Ibid., pp. 439–440, 442.

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moins d’établir l’existence d’une coutume internationale contraire” [the general

principle of the responsibility of States implies a spe cial responsibility in the matter
of delay in the payment of a monetary debt, unless the existence of a contrary
international custom is established]. 134 Also having regard to national legal systems,
the tribunal concluded that Russia had renounced the payme nt of such interests. In
particular, it pointed out that:
Dès l’instant où le Tribunal a reconnu que, d’après les principes généraux et la
coutume en droit international public, il y avait similitude des situations entre
un Etat et un particulier débiteurs d’une somme conventionnelle liquide et
exigible, il est équitable et juridique d’appliquer aussi par analogie les règles de
droit privé commun aux cas où la demeure doit être considérée comme purgée
et le bénéfice de celle-ci supprimée. – En droit privé, les effets de la demeure
sont supprimés lorsque le créancier, après avoir constitué le débiteur en
demeure, accorde un ou plusieurs délais pour satisfaire à l ’obligation principale
sans réserver les droits acquis par la demeure. 135
[Since the Tribunal has recognized that, according to the general principles and
the custom of public international law, there is a similarity between the
condition of a State and that of an individual with regard to indebtedness for a
fixed and exigible conventional sum, it is consistent with equitable and statutory
rules also to apply the rules of ordinary private law, by analogy, to cases where
the demand for payment must be considered as cleared and the benefit to be
derived therefrom as extinguished. – In private law, the effects of a demand for
payment are extinguished when the creditor, after having made the legal demand
upon the debtor, grants one or more extensions for the payment of the principal
obligation, without reserving the rights acquired by means of the legal d emand.]
89. The practice set out above, while admittedly not always clear, constitutes the
background against which Article 38, paragraph 3, of the Statute of the Permanent
Court of International Justice was drafted. Some authors go further and maintain th at

__________________
134
Ibid., p. 441.
135
Ibid., p. 446. See also the following cases (mentioned in Lauterpacht, Private Law Sources and
Analogies of International Law (footnote 113 above), Part III): Dispute between Great Britain
and Portugal in the case of Yuille, Shortridge & Cie (1861) (Award of 21 October 1861,
UNRIAA, vol. XXIX, pp. 57–71); Delagoa Bay Railway Arbitration (1875) (Moore, History and
Digest of the International Arbitrations … (footnote 114 above), vol. 2, p. 1865); the
Van Bokkelen case (1888) (La Fontaine, Pasicrisie internationale (footnote 114 above),
pp. 301−322); Behring Sea Arbitration (1893) (Award of 15 August 1893, UNRIAA, vol.
XXVIII, pp. 263–276); British Guiana Boundary Arbitration (1899) (Award of 3 October 1899,
UNRIAA, vol. XXVIII, pp. 331–340); Cape Horn Pigeon, James Hamilton Lewis, C. H. White
and Kate and Anna case (1902) (19 October 1901–29 November 1902, UNRIAA, vol. IX,
pp. 51–78); Alaska Boundary case (1903) (20 October 1903, UNRIAA, vol. XV, pp. 481–540);
Japanese House Tax case (1905) (22 May 1905, UNRIAA, vol. XI, pp. 41–58); Grisbadarna case
(1909) (Award of 23 October 1909, UNRIAA, vol. XI, pp. 147–166). See also U.S. v. Schooner
La Jeune Eugenie (1822), Fed. Case No. 15551, p. 28 (“Now the law of nations may be deduced,
first, from the general principles of right and justice, applied to the concerns of individuals, and
thence to the relations and duties of nations; or, secondly, in things indifferent or questionable,
from the customary observances and recognitions of civilized nations; or, lastly, from the
conventional or positive law, that regulates the intercourse between states”).

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Article 38, paragraph 3, in fact constitutes a codification of that previous practice. 136
A few points seem clear: first, rules or principles which were considered to be distinct
from, but also sometimes interrelated with, those found in treaties and cust om were
invoked and applied; second, reliance on such rules or principles may have been
authorized by references to broad concepts such as “justice” and “equity” in
arbitration agreements, but the absence of such authorization did not preclude their
use; 137 third, in applying those rules or principles, arbitrators did not decide ex aequo
et bono; 138 and fourth, States and arbitrators often relied on national legal systems and
Roman law to identify the rules or principles in question.

II. “General principles of law recognized by civilized nations”

in Article 38 of the Statutes of the Permanent Court of
International Justice and the International Court of Justice
90. The Statutes of the Permanent Court of International Justice and the
International Court of Justice were drafted in various forums: the Advisory
Committee of Jurists (1920), the Council and the Assembly of League of Nations
(1920), the United Nations Committee of Jurists (1945) and the Committee IV/1 of
the United Nations Conference on International Organization (1945). While definitive
conclusions may not necessarily be drawn from the travaux alone, they nonetheless
provide some useful guidance as regards the inclusion of “general principles of law
recognized by civilized nations” in Article 38 of the Statutes.
91. Proposals that the Statute of the Permanent Court of International Justice make
reference to “general principles of law” (or broader concepts) as a source additional
to treaties and custom were made well before the Advisory Committee of Jurists
began its work. Germany, for example, proposed that the judgments of the Court shall
be “passed according to international agreements, international customary law and
according to general principles of law and equity”. 139 Similarly, Denmark, Norway
and Sweden proposed that, in the absence of treaties and “established rules of
International Law”, the Court shall apply “the general principles of Law”. 140
Switzerland, on the other hand, proposed that, in the absence of a treaty or a “principle
of the law of nations”, the Court shall decide in accordance with “justice and

__________________
136
See, for example, Pellet and Müller, “Article 38” (footnote 13 above), p. 923; R. Jennings and
A. Watts (eds.), Oppenheim’s International Law, vol. I, 9th ed. (Harlow, United Kingdom,
Longman, 1996), pp. 38–39; Jenks, The Common Law of Mankind (footnote 17 above),
pp. 266−268; Cheng, General Principles of Law as Applied by International Courts and
Tribunals (footnote 20 above), pp. 19–20; A. Verdross, “Les principes généraux du droit dans la
jurisprudence internationale”, Collected Courses of the Hague Academy of International Law,
vol. 52 (1935), pp. 191–251, at p. 220; Lauterpacht, Private Law Sources and Analogies of
International Law (footnote 113 above), pp. 67–69. For a different view, see J. d’Aspremont,
“What was not meant to be: general principles of law as a source of international law”, in
R. Pisillo Mazzeschi and P. de Sena (eds.), Global Justice, Human Rights and the Modernization
of International Law (Cham, Springer, 2018), pp. 163–184.
137
Kolb, La bonne foi en droit international public (footnote 25 above), pp. 36–37.
138
Raimondo, General Principles of Law … (footnote 13 above), p. 10; V.D. Degan, Sources of
International Law (The Hague, Martinus Nijhoff, 1997), p. 35; Pellet, Recherche sur les
principes généraux de droit en droit international (footnote 113 above), pp. 40–41; Lauterpacht,
Private Law Sources and Analogies of International Law (footnote 113 above), pp. 63–67.
139
Permanent Court of International Justice, Advisory Committee of Jurists, Documents Presented
to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of
International Justice, p. 129.
140
Ibid., p. 179. The alternative to this read: “the Court will decide according to what, in its
opinion, should be the rules of International Law”. See also p. 205.

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equity”. 141 Departing from these formulations, the joint proposal by the “Five neutral
Powers” (Denmark, the Netherlands, Norway, Sweden and Switzerland) suggested
that, in the absence of a treaty or “recognised rules of international law”, the Court
“shall enter judgment according to its own opinion of what the rule of international
law on the subject should be”. 142
92. The Advisory Committee of Jurists 143 started to discuss the question of the law
to be applied by the Court at its 13th meeting. Treaties and custom were taken up
quickly and without much discussion. In contrast, general principles of law were the
subject of long debates and gave rise to diverging views within the Committee. The
Special Rapporteur considers it therefore useful to describe those debates in some
detail.
93. The President of the Committee, Descamps, proposed at the outset the following
provision:
The following rules are to be applied by the judge in the solution of international
disputes; they will be considered by him in the undermentioned order:
1. conventional international law, whether general or special, being rules
expressly adopted by the States;
2. international custom, being practice between nations accepted by them as
law;
3. the rules of international law as recognised by the legal conscience of
civilised nations;
4. international jurisprudence as a means for the application and development
of law. 144
94. The third and fourth paragraphs of this proposal provoked different reactions.
The third paragraph was opposed to by Root, who did not regard it as clear and
considered it potentially dangerous. 145 In his view, the Committee had to “limit itself
to rules contained in Conventions and positive international law”. 146 Phillimore was
of a similar position, and expressed the view that the proposal “gave the Court a
legislative power”. 147
95. De Lapradelle proposed a shorter formulation: “the Court shall judge in
accordance with law, justice and equity”. 148 At the same time, he considered that it
was not really necessary to define the law to be applied by the Court, and that it would
be useful to specify that the Court must not act as a legislator. He also put forward
that the Court should be allowed to consider whether a particular legal solution was
“just and equitable”. 149 Hagerup, making reference to article 7 of the Hague
Convention (XII) relative to the Creation of an International Prize Court, stated the
__________________
141
Ibid., p. 267.
142
Ibid., p. 301.
143
The Advisory Committee of Jurists was established by the Council of the League of Nations
pursuant to Article 14 of the Covenant of the League, and met from 16 June to 24 July 1920. Its
members were Mineichiro Adatci (Japan), Rafael Altamira (Spain), Clovis Bevilaqua (Brazil)
(later replaced by Raoul Fernandes), Baron Descamps (Belgium), Francis Hagerup (Norway),
Albert de Lapradelle (France), B. C. J. Loder (Netherlands), Lord Phillimore (United Kingdom),
Arturo Ricci-Busatti (Italy) and Elihu Root (United States).
144
Procès-verbaux of the Proceedings of the Committee, June 16th – July 24th 1920 (footnote 116
above), 13th meeting, p. 293 and, annex 3 thereto, p. 306.
145
Ibid., pp. 293–294.
146
Ibid., p. 294.
147
Ibid., p. 295.
148
Ibid., p. 295.
149
Ibid., pp. 295–296.

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need to avoid findings of non liquet and considered that the Court should only have
recourse to equity if authorized to do so. 150
96. Loder disagreed with Root and stated that “[r]ules recognised and respected by
the whole world had been mentioned, rules which were, however, not yet in the nature
of positive law, but it was precisely the Court’s duty to develop law, to ‘ripen’ customs
and principles universally recognised, and to crystallise them into positive rules; in a
word, to establish international jurisprudence”. 151
97. The debate continued at the 14th meeting of the Committee. Descamps raised
the question whether “after having recorded as law conventions and custom, objective
justice should be added as a complement to the others under conditions which are
calculated to prevent arbitrary decisions”. 152 He explained that, in his view, “it would
be a great mistake to imagine that nations can be bound only by engagements which
they have entered into by mutual consent”, and that “objective justice is the natural
principle to be applied by the judge”. 153 He further considered that Root’s approach
of limiting the law to be applied by the Court to treaties and custom may amount to a
“refusal of justice” and would leave the judge in a “state of compulsory blindness”. 154
He continued to justify his initial proposal, this time by ref erence to article 7 of the
Hague Convention (XII) Relative to the Creation of an International Prize Court and
to the Martens Clause. 155
98. Hagerup agreed with the views of Descamps. With respect to Root ’s position,
he understood that it would limit the Court’s competence and place it “in an entirely
different position from that of an ordinary Court, which may not declare non liquet”.
He also repeated his view that “one of the tasks of the new Court would be to develop
jurisprudence”. 156
99. Root responded that, in his view, “the world was prepared to accept the
compulsory jurisdiction of a Court which applied the universally recognised rules of
International Law”, but not that of a Court “which would apply principles, differently
understood in different countries”. 157 He added that “[i]t is inconceivable that a
Government would agree to allow itself to be arraigned before a Court which bases
its sentences on its subjective conceptions of the principles of justice. The Court must
not have the power to legislate ”. 158 To this Descamps responded that, even if it might
be true that principles of justice varied from country to country, at least with respect
to certain rules “of secondary importance”, “it is no longer true when it concerns the
fundamental law of justice and injustice deeply engraved on the heart of every human
being and which is given its highest and most authoritative expression in the legal
conscience of civilised nations”. 159 He also added that “far from giving too much
liberty to the judges’ decision, his proposal would limit it … it would impose on the
judges a duty which would prevent them from relying too much on their own
subjective opinion; it would be incumbent on them to consider whether the dictates
of their conscience were in agreement with the conception of justice of civilised
nations”. 160

__________________
150
Ibid.
151
Ibid., p. 294.
152
Ibid., 14th meeting, annex 1, pp. 322–323.
153
Ibid., p. 323.
154
Ibid.
155
Ibid., pp. 323–324.
156
Ibid., 14th meeting, p. 307.
157
Ibid., p. 308.
158
Ibid., p. 309.
159
Ibid., pp. 310–311.
160
Ibid., p. 311.

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100. Ricci-Busatti agreed to some extent with Root, especially on the point that the
Court should not act as a legislator, and further considered that “[b]y declaring the
absence of a positive rule of international law … nevertheless a legal situation is
established. That which is not forbidden is allowed; that is one of the general
principles of law which the Court shall have to apply. If a case is brought before the
Court and if the latter finds that no rules exist concerning it, the Court shall declare
that one party has no right against the other, that the conduct of the accused State was
not contrary to any admitted rule”. 161 De Lapradelle 162 and Descamps disagreed with
this view. The latter stated that, if there is no applicable conventional or customary
rule, “the judge must then apply general principles of law. But he must be saved from
the temptation of applying these principles as he pleased. For that reason he urged
that the judge render decisions in keeping with the dictates of the legal conscience of
civilised peoples”. 163
101. At the 15th meeting of the Committee, Root presented a new proposal for the
article in question, which included as the third source to be applied by the Court “the
general principles of law recognised by civilised nations”. 164 As noted above,
Descamps had already used the term “general principles of law” at the previous
meeting, and he agreed with the proposal. 165 Based on an analogy of the application
of general principles by domestic courts, Fernandes stated that “[w]hat is true and
legitimate in national affairs, for reasons founded in logic and not in the arbitrary
exercise of sovereignty, cannot be false and illegal in international affairs, where,
moreover, legislation is lacking and customary law is being formed very slowly, so
that the practical necessity of recognising the application of such principles is much
greater”. 166 He mentioned as an example the “American declaration of rights and
duties of Nations”, and further explained that the Court shall have the power to base
its sentences, in the absence of a treaty or custom, “on those principles of international
law which, before the dispute, were not rejected by the legal traditions of one of the
States concerned in the dispute”. 167 Phillimore pointed out that “the general principles
referred to in point 3 were these which were accepted by all nations in foro domestico,
such as certain principles of procedure, the principle of good faith, and the principle
of res judicata”, 168 and that by “general principles of law” he had intended to mean
“maxims of law”. 169 De Lapradelle noted that “the principles which formed the bases
of national law, were also sources of international law. The only generally recognised
principles which exist, however, are those which have obtained unanimous or quasi-
unanimous support”. 170 At the same time, he thought it preferable not to indicate
“exactly the sources from which these principles should be derived ”. 171
102. Root’s proposal was adopted by the Committee at its 27th meeting without
modification. 172 Article 35, paragraph 3, of the Committee’s Draft Scheme thus read:

__________________
161
Ibid., p. 314. Phillimore seems to have agreed with this view (see p. 316).
162
Ibid., p. 315.
163
Ibid., pp. 318–319.
164
Ibid., 15th meeting, p. 331 and, annex 1 thereto, p. 344. It appears that Root had accepted this
wording because “[it was] based on a ruling of the Supreme Court of the United States”. See
O. Spiermann, “‘Who attempts too much does nothing well’: The 1920 Advisory Committee of
Jurists and the Statute of the Permanent Court of International Justice ”, British Yearbook of
International Law, vol. 73 (2002), pp. 187–260, at p. 217.
165
Procès-verbaux (footnote 144 above), 14th meeting, p. 331.
166
Ibid., p. 331, and annex 2 thereto, p. 346.
167
Ibid., p. 346.
168
Ibid., p. 335. He had previously referred to the Pious Fund case (ibid., p. 316).
169
Ibid.
170
Ibid.
171
Ibid., p. 336.
172
Ibid., 27th meeting, p. 584 and, 31st meeting, p. 648.

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The Court shall, within the limits of its jurisdiction as defined in Article 34,
apply in the order following:
…
3. the general principles of law recognised by civilised nations. 173
103. The Draft Scheme was submitted to the League of Nations for its consideration
by States, and some proposals with respect to article 35, paragraph 3, were made.
Within the Sub-Committee of the Third Committee of the First Assembly, France
proposed including the formulation “the general principles of law and justice”. 174 It
explained that this amendment would “enable the Court to state as the sole reason for
its judgments that the award had seemed to it to be just”, but that “[t]his did not imply
that the Court might disregard existing rules”. 175 This proposal was provisionally
adopted. 176 Later, Greece objected to the amendment and suggested that article 35,
paragraph 3, should instead read: “The general principles of law and with the consent
of the parties, the general principles of justice recognised by civilised nations ”. 177
After some discussion, it was decided to retain article 35, paragraph 3, as initially
drafted by the Advisory Committee of Jurists, and the following sent ence was added
at end of the provision:
This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono if the parties agree thereto. 178
104. As regards the words “in the order following” that appeared in the chapeau of
article 35 of the Draft Scheme, the Sub-Committee decided to delete them. 179
105. Article 38, paragraph 3, of the Statute of the Permanent Court of International
Justice did not undergo any changes when the Statute of the International Court of
Justice was drafted, other than appearing now as Article 38, paragraph 1 ( c). Within
the United Nations Committee of Jurists, a proposal was made by Costa Rica to delete
the word “general”, but it was not discussed. Furthermore, France pointed out that
“while Article 38 was not well drafted, it would be difficult to make a better draft in
the time at the disposal of the Committee”. It also noted that the Permanent Court of
International Justice had operated well under Article 38 of the Statute. 180
106. At the 1945 United Nations Conference on International Organization in San
Francisco, Chile noted that Article 38 of the Statute of the Permanent Court of
International Justice made no reference to international law and made a proposal to
change the formulation of Article 38, paragraph 3, to “general principles of law
recognized by civilized nations and especially the principles of international law ”.
Delegations responded that such an addition was not necessary because Article 38
had always been regarded as implying an obligation to apply international law. 181
Following a new proposal by Chile, the chapeau of Article 38 was changed from “The

__________________
173
Ibid., 32nd meeting, annex, p. 680. The final report of the Committee did not provide major
explanations concerning the provision (see ibid., 34th meeting, annex 1, pp. 729–730).
174
Documents concerning the action taken by the Council of the League of Nations under Article 14
the Covenant and the adoption by the Assembly of the Statute of the Permanent Court (Geneva,
1921), Sub-Committee of the Third Committee, 7th meeting, 1 December 1920, p . 145.
175
Ibid.
176
Ibid.
177
Ibid., 10th meeting, 7 December 1920, p. 157.
178
Ibid.
179
Ibid., 7th meeting, 1 December 1920, p. 145.
180
Documents of the United Nations Conference on International Organization, San Francisco,
1945, vol. XIV, 7th meeting, 13 April 1945, p. 162, at p. 170.
181
Documents of the United Nations Conference on International Organization, San Francisco,
1945, vol. XIII, 5th meeting of Committee IV/1, 10 May 1945, p. 162, at p. 164.

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Court shall apply” to “The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall appl y”. 182
107. The question of the order in which the sources listed in Article 38 should be
applied also arose briefly in San Francisco. Colombia suggested that the sources
should be applied in the order in which they appeared, but this proposal was
subsequently dropped. 183
108. The drafting history of Article 38, paragraph 1 ( c), of the Statute of the
International Court of Justice and its predecessor shows the following. First, as some
authors have noted, 184 it appears that the drafters did not believe that, by i ncluding
“general principles of law recognized by civilized nations ” in the Statute, they were
creating a new source of international law, but rather codifying an already existing
one. Second, the inclusion of this third source seems to have been partly dr iven by a
concern that the Court may decline to exercise its jurisdiction and find a non liquet,
but it was also generally agreed that the Court should not have a power to create the
law. 185
109. Third, the drafting history provides some important clarificat ions as regards the
origins of general principles of law. On the one hand, there was general agreement
among members of the Advisory Committee of Jurists that general principles of law
may derive from principles found in foro domestico. On the other hand, the
Committee did not exclude the possibility that general principles of law may find
their origins elsewhere as well. 186 Finally, the travaux also show that general
principles of law form part of international law, that there is no formal hierarchy
between the different sources of international law listed in the provision, and that
general principles of law are clearly distinguishable from ex aequo et bono.

III. General principles of law after the adoption of the Statutes

of the Permanent Court of International Justice and the
International Court of Justice
110. General principles of law as a source of international law have been referred to
and applied in State and judicial practice after the adoption of the Statutes of the
Permanent Court of International Justice and the International Court of Justice on
numerous occasions. The aim of the present section is to provide a brief overview of
the application of general principles of law in recent practice and to show the
continuing relevance of this source of international law to date, as well as the variety
of contexts in which it may play a role.

__________________
182
Ibid., 19th meeting of Committee IV/1, 6 June 1945, p. 279, at pp. 284–285. See also ibid.,
Report of the Rapporteur of Committee IV/1, Nasrat Al-Fasry, p. 381, at p. 392.
183
Ibid., 19th meeting of Committee IV/1, 6 June 1945, p. 279, at p. 287.
184
See footnote 132 above.
185
Pellet and Müller, “Article 38” (footnote 13 above), p. 923; O. Spiermann, “The history of
Article 38 of the Statute of the International Court of Justice: ‘A purely platonic discussion’?”, in
J. d’Aspremont and S. Besson (eds.), The Oxford Handbook of the Sources of International Law
(Oxford, Oxford University Press, 2017), pp. 167 and 171; Spiermann, “‘Who attempts too much
does nothing well’ …” (footnote 164 above), p. 215.
186
G. Gaja, “General principles in the jurisprudence of the ICJ”, in M. Andenas et al. (eds.),
General Principles and the Coherence of International Law (Brill, 2019), p. 37.

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A. References to general principles of law in international instruments

111. References to general principles of law can be found in many treaties concluded
after the adoption of the Statutes of the Permanent Court of International Justice and
the International Court of Justice, be it for purposes of establishing the law to be
applied by courts and tribunals or for determining the scope of specific substantive
provisions.
112. Some treaties refer to general principles of law by incorporating the exact
language of Article 38 of the Statute. 187 Other treaties use similar though not identical
language to Article 38. The 1921 Treaty of Arbitration and Conciliation between
Switzerland and Germany, for example, provides in article 5 that:
The Tribunal shall apply:
First: the conventions in force between the Parties, whether general or special,
and the principles of law arising therefrom;
Secondly: international custom as evidence of a general practice accepted as
law;
Thirdly: the general principles of law recognised by civilised nations.
If, in a particular case, the legal bases mentioned above are inadequate, the
Tribunal shall give an award in accordance with the principles of law which, in
its opinion, should govern international law. For this purpose it shall be guided
by decisions sanctioned by legal authorities and by jurisprudence.
If the Parties agree, the Tribunal may, instead of basing its decision on legal
principles, give an award in accordance with considerations of equity. 188
113. In the field of international criminal law, the Rome Statute deserves some
attention. 189 Article 21 of the Statute, entitled “Applicable law”, provides:

__________________
187
See, for example, art. 19 of the Treaty of Conciliation and Arbitration between Pola nd and
Czechoslovakia (Warsaw, 23 April 1925, Arbitration and Security: Systematic Survey of the
Arbitration Conventions and Treaties of Mutual Security Deposited with the League of Nations ,
2nd ed. (Publication of the League of Nations 1927.V.29, Geneva, 1927), p. 236); art. 4 of the
Convention of Arbitration and Conciliation between Germany and The Netherlands (The Hague,
20 May 1926, ibid., p. 291, at p. 292); art. 19 of the Treaty of Conciliation and Arbitration
between Poland and the Kingdom of the Serbs, Croats and Slovenes (Geneva, 18 September
1926, ibid., p. 342, at p. 345); art. 2 of the 1936 Arbitration Agreement between Belgium and
France (Award of 1 March 1937, UNRIAA, vol. III, pp. 1701–1716, at p. 1704); art. 19, para. 2,
of the 2002 Rules of Procedure of the Eritrea – Ethiopia Claims Commission; art. 2 of the 2012
Submission Agreement between Singapore and Malaysia of 2012. See also article 10 of the
Model Rules on Arbitral Procedure finalized by the Commission in 1958 ( Yearbook… 1958,
vol. II, pp. 84 ff., para. 22).
188
Treaty of Arbitration and Conciliation between the Swiss Confederation and the German Reich
(Bern, 3 December 1921), Arbitration and Security (footnote 187 above), p. 201, at p. 202. See
also article 5 of the 1925 Convention of Arbitration and Conciliation between Germany and
Finland (Berlin, 14 March 1925, ibid., p. 226, at p. 227); article 5 of the 1925 Convention of
Arbitration and Conciliation between Germany and Estonia (Berlin, 10 August 1925, ibid.,
p. 284, at pp. 285–286); article 4 of the 1926 Treaty of Arbitration and Conciliation between
Germany and Denmark (Berlin, 2 June 1926, ibid., p. 269, at pp. 269–270).
189
Unlike the Rome Statute, the statutes of other international criminal tribunals do not include
applicable law provisions. As will be shown in the next section, however, this has not precluded
those tribunals from applying general principles of law. See the Report of the Secretary -General
pursuant to paragraph 2 of Security Council resolution 808 (1993) (S/25704), para. 58 (“The
[International Tribunal for the former Yugoslavia] itself will have to decide on various personal
defenses which may relieve a person of individual criminal responsibility, such as minimum age
or mental incapacity, drawing upon general principles of law recognized by all nations ”).

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1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of
Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the
principles and rules of international law, including the established principles of the
international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national
laws of legal systems of the world including, as appropriate, the national laws of
States that would normally exercise jurisdiction over the crime, provided that those
principles are not inconsistent with this Statute and with international law and
internationally recognized norms and standards …
114. The travaux of the Rome Statute may provide some guidance as regards the
meaning of paragraph 1, subparagraphs (b) and (c), of article 21. The Commission’s
draft statute for an international criminal court listed three sources of law without
specifying a hierarchy between them: the Statute, “[a]pplicable treaties and the
principles and rules of general international law”, and “[t]o the extent applicable, any
rule of national law”. 190 As noted in Part Two above, in the commentary to this
provision the Commission stated that “[t]he expression ‘principles and rules’ of
general international law includes general principles of law, so that the court can
legitimately have recourse to the whole corpus of criminal law, whether found in
national forums or in international practice, whenever it needs guidance on matters
not clearly regulated by treaty”. 191
115. At the Preparatory Committee on the Establishment of an International Criminal
Court, the question of “whether the Court should be empowered to elaborate/legislate
further the general principles of criminal law that are not written in the Statute ” was
discussed, 192 and various proposals were advanced by delegations. Some favoured
granting some degree of judicial latitude to the Court (for instance, to elaborate the
elements of crimes and principles of liability and defence), while others opposed the
idea of the Court acting as legislator and preferred having refer ences to national
law. 193
116. The final draft of the Preparatory Committee contained a provision on
applicable law (draft article 20), which was similar to what finally became article 21
of the Rome Statute. It contained, however, two options for the third source of law to
be applied by the Court. The first option provided that the Court would apply “general
principles of law derived by the Court from national laws of legal systems of the
world”. The second option required the Court to apply the national law of particular
States to be selected on various bases. 194
117. At the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court in Rome in 1998, States reached a
compromise solution by essentially combining both options. A working paper of the
Working Group on applicable law explains that “[m]ost delegations favoured
__________________
190
Art. 33 of the draft statute for an international criminal court, Yearbook…1994, vol. II (Two),
para. 91, at p. 51.
191
Para. (2) of the commentary to art. 33, ibid.
192
Report of the Preparatory Committee on the Establishment of an International Criminal Court,
vol. II, Official Records of the General Assembly, Fifty-first Session, Supplement No. 22A
(A/51/22), p. 104.
193
Ibid, pp. 104–107. See also Report of the Preparatory Committee on the Establishment of an
International Criminal Court, vol. I, ibid., Supplement No. 22 (A/51/22), paras. 179–188.
194
Report of the Preparatory Committee on the Establishment of an International Criminal Court,
A/CONF.183/2/Add.1, pp. 46–47.

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option 1, but some still favour option 2. A view was expressed that the laws indicated
in option 2 could be given as examples of the national laws referred to in option 1, so
that the two options could be combined”. 195 The report of the Working Group further
notes that “[s]ome delegations express the view that, as a matter of principle, no
reference to any national laws of States should be made. The Court ought to derive
its principles from a general survey of legal systems and their respective national
laws”. 196
118. Article 21 of the Rome Statute has been interpreted differently by scholars.
According to one view, general principles of law in the sense of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice are included in
paragraph 1 (b) (“principles and rules of international law”). 197 Another view
considers that paragraph 1 (c) (“general principles of law derived by the Court from
national laws of legal systems of the world”) is a more precise formulation of Article
38, paragraph 1 (c), of the Statute of the International Court of Justice. 198 A third view
is that general principles of law in the sense of Article 38, paragraph 1 (c), are
included in both paragraphs of article 21 of the Rome Statute. 199
__________________
195
A/CONF.183/C.1/WGAL/L.1, p. 2.
196
A/CONF.183/C.1/WGAL/L.2 and Corr.1, p. 2. See also United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, Rome , 15 June–
17 July 1998, Official Records, vol. II, Summary records of the plenary meetings and of the
meetings of the Committee of the Whole (A/CONF.183/13 (Vol. II)), Committee of the Whole,
12th and 13th meetings, pp. 217–224.
197
W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute , 2nd ed.
(Oxford, Oxford University Press, 2016), p. 520 (“Article 21(1)(c) seems to imply the use of
‘general principles’ not as a means of determining the content of public international law, but
rather in the context of comparative criminal law. The reference in article 21(1)(c) to such
principles not being inconsistent with international law and internationally recognized norms and
standards would lead to an illogical result if that provision was intended to encompass ‘general
principles’ when this term is used to refer to one of the three primary sources of public
international law. For this reason, ‘general principles of law recognized by civilized nations’
should be considered under article 21(1)(b) rather than 21(1)(c) ”). Schabas also noted, however,
that a reference by the Appeals Chamber to article 21, paragraph 1 ( c), of the Rome Statute in a
recent judgment with respect to general principles of law (see paras. 213–214 below) “leaves this
matter somewhat uncertain” (pp. 520–521). See also J-P. Perez-Leon-Acevedo, “Reparation
Principles at the International Criminal Court”, in M. Andenas et al. (eds.), General Principles
and the Coherence of International Law (Brill, 2019), pp. 332–333; J. Powderly, “The Rome
Statute and the attempted corseting of the interpretative judicial function: reflections on sources
of law and interpretative technique”, in C. Stahn (ed.), The Law and Practice of the International
Criminal Court (Oxford, Oxford University Press, 2015), pp. 478 and 482.
198
A. Pellet, “Article 21”, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of
the International Criminal Court (Oxford, Oxford University Press, 2002), p. 1051, at
pp. 1071−1073 (“It may be that the letter of Article 21(1)(b) of the Statute should not be
accorded an unmerited importance. In reality, there is little doubt that this provision refers,
exclusively, to customary international law, of which the ‘established principles of the
international law of armed conflict’ clearly form an integral part … Article 21 of the ICC Statute
defines [general principles of law] better and more precisely than Article 38 of the Statute of the
[International Court of Justice] since it indicates that these principles are ‘derived by the Court
from national laws of legal systems of the world’, which dispels all uncertainty as to their nature
and clearly differentiates them from the general principles of international law”).
199
R. Wolfrum, “General international law (principles, rules, and standards)”, in Max Planck
Encyclopedia of Public International Law (2010), para. 28 (“On the basis of the wording of
Art. 38 (1) (c) ICJ Statute, its legislative history, as well as its object and purpose, the view
seems to be more tenable that general principles may be derived not only from municipal law,
but also from international law. This reasoning is enforced by Art 21 ICC Statute, which clearly
distinguishes between general principles derived from international and those from national
law”). See also M. deGuzman, “Article 21”, in O. Triffterer and K. Ambos (eds.), Rome Statute
of the International Criminal Court: A Commentary, 3rd ed. (Munich and Oxford, C. H. Beck,
Hart, Nomos, 2016), pp. 932–948, at pp. 939–944.

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119. As noted by one author, the sources listed in article 21 of the Rome Statute seem
to derive generally from those found in Article 38, paragraph 1 ( c), of the Statute of
the International Court of Justice, but with certain “modifications to account for the
particularities of criminal law, in particular the need for clarity and specificity ”. 200
The same author correctly notes that article 21 reflects a compromise reached dur ing
the negotiations of the Rome Statute, the main issue at stake being how much
discretion should be granted to judges in the light of the principle of legality, on the
one hand, and the possible lacunae in international criminal law, on the other. 201
120. The debates and compromises reached during the drafting of article 21 of the
Rome Statute show that article 21, paragraph 1 (c), of the Rome Statute is unique in
the sense that it was designed to take into account the special character and
considerations of international criminal law. It may therefore be inappropriate to
consider it a more precise formulation of Article 38, paragraph 1 (c), of the Statute of
the International Court of Justice. However, since the former paragraph 1 ( c)
expressly refers to “general principles of law” and, as will be seen in Part Four below,
State and judicial practice support the position that general principles of law may be
derived from national legal systems, it could be considered that it reflects part of the
scope of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice. With respect to paragraph 1 (b) of article 21 of the Rome Statute, it may be
concluded that it also includes general principles of law in the sense of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice given its similarity
to the initial draft prepared by the Commission.
121. In the area of human rights law, article 15, paragraph 2, of the International
Covenant on Civil and Political Rights provides that “[n]othing in this article shall
prejudice the trial and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general principles of law
recognized by the community of nations”. Similarly, article 7, paragraph 2, of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights) 202 provides that “[t]his Article shall not
prejudice the trial and punishment of any person for any act or omis sion which, at the
time when it was committed, was criminal according to the general principles of law
recognised by civilised nations”. The travaux of both treaties show that these articles
were introduced in order to further confirm and strengthen the pr inciples affirmed in
General Assembly resolution 95 (I) of 11 December 1946 (the Nürnberg principles). 203
122. In this connection, it is worth mentioning that, following the formulation of
article 15, paragraph 2, of the International Covenant on Civil and P olitical Rights,
section 11 (g) of the Canadian Constitution Act, 1982, provides that “[a]ny person
charged with an offence has the right … not to be found guilty on account of any act
or omission unless, at the time of the act or omission, it constituted an offence under
Canadian or international law or was criminal according to the general principles of
law recognized by the community of nations”. The Constitution of Sri Lanka contains
a similar provision (article 13, paragraph 6), also referring to “the general principles
of law recognized by the community of nations”.
__________________
200
deGuzman, “Article 21” (see previous footnote), p. 933.
201
Ibid.
202 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights) (Rome, 4 November 1950), United Nations, Treaty Series,
vol. 213, No. 2889, p. 221.
203
See A/2929, p. 127, para. 96; A/4625, paras. 15–16; A/C.3/SR.1008, paras. 2 and 14;
A/C.3/SR.1010, para. 9; A/C.3/SR.1012, para. 15; A/C.3/SR.1013, paras. 14–15, 17; European
Commission of Human Rights, Preparatory work on article 7 of the European Convention on
Human Rights, Information document prepared by the Secretariat of the Commission
(DH (57) 6), p. 4.

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123. Further examples can be found in the area of international economic law. For
instance, Article 143, paragraph 2, of the 2008 China -New Zealand Free Trade
Agreement provides that “[f]air and equitable treatment includes the obligation to
ensure that, having regard to general principles of law, investors are not denied justice
or treated unfairly or inequitably in any legal or administrative proceeding affecting
the investments of the investor”. Other investment agreements provide that “‘fair and
equitable treatment’ includes the obligation not to deny justice in criminal, civil, or
administrative adjudicatory proceedings in accordance with the principle of due
process embodied in the principal legal systems of the world”. 204
124. General principles of law have also been referred to in State concession
agreements. For instance, according to the applicable law provision contained in the
1935 Agreement between Petroleum Development (Qatar) Ltd. and the Sheik of
Qatar, “[t]he award shall be consistent with the legal principles familiar to civilized
nations”. The Concession granted by the Persian Government to the Anglo -Persian
Oil Company, Ltd in 1933 contained a clause providing that “[t]he award shall be
based on the judicial principles contained in Article 38 of the Statute of the Permanent
Court of International Justice”.
125. Some regional treaties contain provisions that seem to refer to general principles
with a limited scope of application. Article 340 of the 2007 Treaty on the Functioning
of the European Union, for example, provides that “[i]n the case of non-contractual
liability, the Union shall, in accordance with the general principles common to the
laws of the Member States, make good any damage caused by its institutions or by its
servants in the performance of their duties”. 205 Article 61 of the African Charter on
Human and Peoples’ Rights 206 provides that “[t]he Commission shall also take into
consideration, as subsidiary measures to determine the principles of law … general
principles of law recognized by African States”. Similarly, article 29 of the 1997
Rules of Procedure of the Economic Court of the Commonwealth of Independent
States provides that the Court shall apply, inter alia, “general principles of law
recognized by the Member States of the Commonwealth”.

B. General principles of law in international judicial practice

126. General principles of law as a source of international law have been referred to
in contemporary judicial practice on several occasions and across different
jurisdictions. While, as mentioned above, the Special Rapporteur does not intend to
provide here a complete and detailed account of such practice (something that will be
done when discussing specific issues later in the present and in future reports), it is
nonetheless useful to show, briefly, the variety of contexts in which general principles
of law have played a role. At this stage, the Special Rapporteur wishes to highlight
that the fact that the present sub-section focuses on litigation-related practice (for the
simple reason that it is more readily available than other materials) in no way implies
that this is the only context in which general principles of law apply. As a source of

__________________
204
See, for example, art. 9.5, para. 2 (a), of the 2018 Central America-Korea Free Trade Agreement;
art. 11.5, para. 2 (a) of the 2014 Australia-Korea Free Trade Agreement; art. 5, para. 2 (a), of the
2008 United States-Rwanda Bilateral Investment Treaty; art. 5, para. 2 (a), of the of the 2005
United States-Uruguay Bilateral Investment Treaty.
205
Treaty on the Functioning of the European Union (13 December 2007), consolidated version in
Official Journal of the European Union, No. C 326, p. 47. See also art. 215 of the Treaty
Establishing the European Economic Community (Rome, 25 March 1957, United Nations, Treaty
Series, vol. 298, No. 4300, p. 3).
206
African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981), United Nations, Treaty
Series, vol. 1520, No. 26363, p. 217.

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international law, they ought to apply in the relations between subjects of

international law generally.
127. The International Court of Justice and its predecessor appear to have clearly
referred to general principles of law in the sense of Article 38, paragraph 3, and
Article 38, paragraph 1 (c), of the respective Statutes in only a few cases. This may
appear to be in some contrast to States’ attitude towards this source of international
law: they have invoked general principles of law in their pleadings on many
occasions, although at times their arguments, for one reason or another, were
eventually not upheld or even discussed by the Court. Similarly, individual judges
have often relied on general principles of law in their opinions. 207
128. The Permanent Court of International Justice, for example, appears to have
rejected the application of general principles of law, without denying their existence,
in the Jaworzina advisory opinion, 208 the Mavrommatis Jerusalem Concessions
case 209 and the Serbian Loans case. 210 Application of general principles of law may
be found in the Greco-Turkish Agreement advisory opinion 211 and the Chorzów
Factory case. 212 Furthermore, brief references to what may be regarded as general
principles of law, but without any clear consequences being drawn from them, are
found in some cases, such as the advisory opinion concerning the interpretation of
Article 3, paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and
Iraq). 213 In none of the cases referred to in this paragraph did the Court make
reference to Article 38, paragraph 3, of its Statute.
129. As regards the International Court of Justice, it appears to have applied general
principles of law in the Corfu Channel case, 214 the advisory opinion on Reservations
to the Convention on Genocide, 215 the advisory opinion concerning the Effect of

__________________
207
Opinions of individual judges are referred to in Part Four below.
208
Question of Jaworzina, Advisory Opinion of 6 December 1923, PCIJ Series B, No. 8, pp. 37–38
(rejecting a claim by Poland based on the “traditional principle” of ejus est interpretare legem
cujus condere).
209
The Mavrommatis Jerusalem Concessions, Judgment of 26 March 1925, PCIJ Series A, No. 5,
p. 30 (referring to “principles which seem to be generally accepted in regard to contracts ”).
210
Case Concerning the Payment of Various Serbian Loans Issued in France , Judgment of 12 July
1929, PCIJ Series A, No. 20/21, pp. 38–39 (rejecting the application of the principle of estoppel).
211
Interpretation of Greco-Turkish Agreement of December 1st, 1926, Advisory Opinion of
28 August 1928, PCIJ Series B, No. 16, p. 20 (applying the principle of compétence-
compétence).
212
Case concerning the Factory at Chorzów (Germany/Poland), Judgment of 26 July 1927, PCIJ
Series A, No. 9, p. 31 (considering that it is “a principle generally accepted in the jurisprudence
of international arbitration, as well as by municipal courts, that one Party cannot avai l himself of
the fact that the other has not fulfilled some obligation or has not had recourse to some means of
redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the
obligation in question, or from having recourse to the tribunal which would have been open, to
him”); Case concerning the Factory at Chorzów (Merits), Judgment of 13 September 1928, PCIJ
Series A, No. 17, p. 29. (stating that “[i]t is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make reparation ”).
213
Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion of
21 November 1925, PCIJ Series B, No. 12, p. 32 (considering that Article 15, paragraphs 6
and 7, of the Covenant of the League of Nations reflected the “well-known rule that no one can
be judge in his own suit”).
214
Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 4, at p. 18. (with
respect to the admission of indirect evidence).
215
Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15, at
p. 23 (referring to the principles underlying the Genocide Convention as “principles which are
recognized by civilized nations as binding on States, even without any conventional obligation ”).

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awards of compensation made by the U.N. Administrative Tribunal, 216 the Barcelona
Traction case, 217 the advisory opinion on the Application for Review of Judgment
No. 158 of the United Nations Administrative Tribunal,218 and the cases concerning
Question of the Delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 Nautical Miles from the Nicaraguan Coast 219 and Land
Boundary in the Northern Part of Isla Portillos. 220
130. In other cases, the Court has rejected arguments based on general principles of
law, 221 or simply considered that, since rules of conventional or customary
international law addressed the situation at hand, it was not necessary for it to
determine the existence of a general principle of law. 222

__________________
216
Effect of awards of compensation made by the U.N. Administrative Tribunal, Advisory Opinion of
July 13th,1954, I.C.J. Reports 1954, p. 47, at p. 53. (applying the “well-established and generally
recognized principle of law” of res judicata).
217
Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, at
p. 37, para. 50 (applying the “rules generally accepted by municipal legal systems which
recognize the limited company whose capital is represented by shares ”).
218
Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1973, p. 166, at p. 181, para. 36 (considering that “[g]eneral
principles of law and the judicial character of the Court do require that, even in advisory
proceedings, the interested parties should each have an opportunity, on the basis of e quality, to
submit all the elements relevant to the questions which have been referred to the review
tribunal”). See also Application for Review of Judgment No. 273 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 325, at pp. 338–339, para. 29.
219
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond
200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 100, at p. 125, para. 58 (referring to the principle
of res judicata).
220
Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment of
2 February 2018, para. 68 (also referring to the principle of res judicata).
221
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969 , p. 3, at pp. 21–22, paras. 17–18
(rejecting Germany’s argument that the principle of just and equitable share was a general
principle of law in the sense of Article 38, paragraph 1 (c) of the Statute); Application for Review
of Judgment No. 158 (footnote 218 above), p. 181, para. 36 (considering that there is no general
principle of law requiring that in review proceedings the parties must necessarily have an
opportunity to submit oral statements); South West Africa, Second Phase, Judgment, I.C.J.
Reports 1966, p. 6, at p. 47, para. 88 (considering that actio popularis cannot be regarded as a
general principle of law in the sense of Article 38, paragraph 1 ( c), of the Statute).
222
Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960,
I.C.J. Reports 1960, p. 6, at p. 43.

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131. As regards the invocation of general principles of law by States appearing before
the Court, such invocation varies from brief references 223 to detailed arguments
regarding this source of international law. Examples of the latter, which will be further
discussed below, include the pleadings of Portugal and India in the case concerning
Right of Passage over Indian Territory, 224 Liechtenstein in the Certain Property
case, 225 and Australia and Timor-Leste in the case concerning Questions relating to
the Seizure and Detention of Certain Documents and Data. 226
132. General principles of law have also played a role beyond the International Court
of Justice. In inter-State arbitration, for example, they have been relied upon, or
broadly referred to, in the Eastern Extension, Australasia and China Telegraph Co.
case, 227 the Goldenberg case, 228 a decision of the Franco-Italian Conciliation
Commission, 229 the Diverted Cargoes case, 230 the Lighthouses Arbitration, 231 the
Argentine-Chile Frontier case, 232 the Lac Lanoux case, 233 the OSPAR Arbitration, 234
__________________
223
To name but a few recent examples, see the arguments concerning estoppel and legitimate
expectations in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) (Reply of
Bolivia, paras. 320 ff.; Rejoinder of Chile, para. 2.28); good faith in Obligations concerning
Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom) (Memorial of the Marshall Islands, para. 182); abuse of
rights in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (Counter-
Memorial of Japan, paras. 9.40 ff.); calculation of damages in Ahmadou Sadio Diallo (Republic
of Guinea v. Democratic Republic of Congo) (Memorial on Compensation of Guinea, para. 13);
the exceptio non adimpleti contractus in Application of the Interim Accord of 13 September 1995
(the former Yugoslav Republic of Macedonia v. Greece) (Counter-Memorial of Greece,
paras. 8.1 ff.; Reply of North Macedonia, paras. 5.54 ff.; Rejoinder of Greece, paras. 8.6 ff.);
exclusion of illegally obtained evidence in criminal proceedings in Avena and Other Mexican
Nationals (Mexico v. United States of America) (Memorial of Mexico, paras. 21, 374, 380;
Counter-Memorial of the United States, paras. 8.27 ff.); admissibility of evidence in the form of
admissions in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America) (Memorial of Nicaragua (merits), para. 160; nullity of arbitral awards
in Arbitral Award Made by the King of Spain on 23 December 1906 (Counter-Memorial of
Nicaragua, paras. 56 ff.).
224
Right of Passage (footnote 222 above).
225
Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports
2005, p. 6.
226
Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v.
Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014 , p. 147.
227
Eastern Extension, Australasia and China Telegraph Company, Ltd. (Great Britain v. United
States), Award of 9 November 1923, UNRIAA, vol. VI, pp. 112–118, at pp. 114–115.
228
Affaire Goldenberg (Allemagne contre Roumanie), Award of 27 September 1928, UNRIAA,
vol. II, pp. 901–910, at p. 909 (considering that the term “droit des gens” employed in
paragraph 4 of the annex to articles 297 and 298 of the Treaty of Versailles included general
principles of law recognized by civilized nations, and making reference to the “general principle”
prohibiting the expropriation of the property of aliens without just compensation).
229
Différend Sociétés « Les Petits-Fils de C.J. Bonnet » – « Tessitura Serica Piemontese »,
Decisions of 16 March 1949, 1 December 1950, and 3 March 1952, UNRIAA, vol. XIII,
pp. 75−87, at p. 83 (making reference to general principles of law for purposes of treaty
interpretation).
230
The Diverted Cargoes Case (Greece, United Kingdom of Great Britain and Northern Ireland) ,
Award of 10 June 1955, UNRIAA, vol. XII, pp. 53–81, at p. 70.
231
Affaire relative à la concession des phares de l’Empire ottoman (Grèce, France), Award of 24/27
July 1956, UNRIAA, vol. XII, pp. 155–269, at pp. 197, 199 and 241 (making reference to
general principles of law with respect to unjust enrichment and succession of responsibility).
232
Argentine-Chile Frontier Case, Award of 9 December 1966, UNRIAA, vol. XVI, pp. 109–182, at
p. 164. (referring to the principle of estoppel).
233
Affaire du lac Lanoux, Award of 16 November 1957, UNRIAA, vol. XII, pp. 281–317, at p. 308
(considering, among others, the principle according to which bad faith cannot be presumed). See
also International Law Reports, vol. 24 (1994), pp. 101–142, at pp. 129–130, for English.
234
Proceedings pursuant to the OSPAR Convention (Ireland –United Kingdom), Award of 2 July
2003, UNRIAA, vol. XXIII, pp. 59–151, at p. 87, para. 84.

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the Abyei Arbitration, 235 the Chagos Marine Protected Area case, 236 and the recent
arbitration between Croatia and Slovenia. 237
133. Various references to general principles of law have also been made in the
context of international criminal law, a field in which, as some authors have noted,
this source of international law may play a particularly important role. 238 Examples
can be found in judgments and decisions of the International Criminal Court, 239 the
International Tribunal for the Former Yugoslavia, 240 the International Tribunal for
Rwanda, 241 and the Special Court of Sierra Leone. 242
134. General principles of law have also been relied upo n in investor-State dispute
settlement, where one can find references (sometimes expressly mentioning
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice) to

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235
Delimitation of the Abyei Area between the Government of Sudan and the Sudan People ’s
Liberation Movement/Army, Award of 22 July 2009, UNRIAA, vol. XXX, pp. 145–416, at p. 299,
para. 401 (regarding, inter alia, the question of excess of jurisdiction).
236
Chagos Marine Protected Area (Mauritius v. United Kingdom), Award of 18 March 2015,
UNRIAA, vol. XXXI, pp. 359–606, at pp. 542–544, paras. 435–438 (regarding the principle of
estoppel).
237
Arbitration between the Republic of Croatia and the Republic of Slovenia , Permanent Court of
Arbitration, Case No. 2012-04, Award of 29 June 2017, para. 347.
238
A. Cassese, “The contribution of the International Criminal Tribunal for the former Yugoslavia to
the ascertainment of general principles of law recognized by the community of nation s”, in
S. Yee and W. Tieya (eds.), International Law in the Post-Cold War World: Essays in Memory of
Li Haopei (London, Routledge, 2001), pp. 46–55, p. 46.
239
See, for example, Situation in the Democratic Republic of the Congo, Judgment on the
Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006
Decision Denying Leave to Appeal, 13 July 2006 (ICC-01/04), para. 32 (rejecting the argument
that a general principle of law may give a right to appeal on a basis not provided for in the Rome
Statute); Situation in the Democratic Republic of the Congo, Prosecutor v. Germain Katanga and
Mathieu Ngudjolo Chui, Decision on the confirmation of charges, 30 September 2008 (ICC -
01/04-01/07), para. 190 (referring to the principle of res judicata); Situation in the Republic of
Kenya, Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on the Prosecutor’s
Application for Witness Summonses and resulting Request for State Party Cooperation, 17 April
2014 (ICC-01/09-01/11), paras. 65 ff. (regarding the competence of Trial Chambers to subpoena
witnesses).
240
See, for example, Prosecutor v. Anto Furundžija, Judgment of 10 December 1998 (IT-95-17/1-T),
Trial Chamber, Judicial Reports 1998, paras. 177–186 (relying on general principles of law to
provide a definition of rape); Prosecutor v. Zoran Kupreškić et al., Judgment of 14 January 2000,
Trial Chamber (IT-95-16-T), paras. 539, 677 ff. (referring to general principles of law as part of
the law to be applied by the Tribunal, and addressing general principles regarding multiple
offences); Prosecutor v. Dragoljub Kunarac et al., Judgment of 22 February 2001, Trial
Chamber (IT-96-23-T & IT-96-23/1-T), paras. 437–460 (also relying on general principles of law
to provide a definition of rape); Prosecutor v. Mucić et al. (Čelebići case), Judgment of 20
February 2001, Appeals Chamber (IT-96-21-A), paras. 583–590 (addressing a “special defence”
of diminished responsibility).
241
See, for example, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Decision on the
Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, Trial Chamber
(ICTR-96-10-T & ICTR-96-17-T), para. 42 (referring to the principle of res judicata);
Prosecutor v. Jean-Paul Akayesu, Judgment of 2 September 1998, Trial Chamber (ICTR-96-4-T),
para. 501 (referring to “general principles of criminal law” to decide on the basis of an
interpretation more favourable to the accused).
242
See, for example, Prosecutor v. Issa Hassan Sesay et al., Ruling on the Issue of the Refusal of
the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on
7 July 2004 and Succeeding Days, 12 July 2004, Trial Chamber (SCSL-04-15-T), paras. 9–10
(regarding trial in absentia).

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principles such as res judicata, 243 compétence-compétence, 244 burden of proof, 245
legitimate expectations, 246 unjust enrichment 247 and good faith. 248 Similarly, general
principles of law have been referred to, though less frequently, in the case law of the
dispute settlement mechanism of the World Trade Organization. 249
135. General principles of law have similarly appeared in the field of human rights.
The Inter-American Court of Human Rights, for example, has considered on various
occasions that general principles of law form part of the body of human rights law
that it must apply. 250 The Court has briefly referred to the principle of estoppel, 251
pacta sunt servanda, 252 iura novit curia, 253 the “principle of international law” that

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243
Waste Management, Inc. v. United Mexican States (“Number 2”), International Centre for
Settlement of Investment Disputes (ICSID) Case No. ARB(AF)/00/3, Decision of 26 June 2002,
paras. 38 ff.
244
Sociedad Anónima Eduardo Vieira v. República de Chile, ICSID Case No. ARB/04/7, Award of
21 August 2007, para. 203.
245
Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan, ICSID Case
No. ARB/02/13, Award of 31 January 2006, paras. 70 ff.; Autopista Concesionada de Venezuela,
C.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/00/5, Award of 23 September
2003, para. 110; International Thunderbird Gaming Corporation v. United Mexican States,
Award of 26 January 2006, para. 95; Asian Agricultural Products Limited v. Republic of Sri
Lanka, ICSID Case No. ARB/87/3, Award of 27 June 1990, para. 56.
246
Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award
of 22 September 2014, paras. 575–576; Total S.A. v. Argentine Republic, ICSID Case
No. ARB/04/01, Decision on liability of 27 December 2010, paras. 128–130; Toto Costruzioni
S.p.A. v. Republic of Lebanon, ICSID Case No. ARB/07/12, Award of 7 June 2012, para. 166.
247
Sea-Land Service, Inc. v. Iran, Case No. 33, Award No. 135-33-1 (20 June 1984), Iran–United
States Claims Tribunal Reports (IUSCTR), vol. 6, p. 168; Saluka Investments B.V. v. Czech
Republic, United Nations Commission on International Trade Law (UNCITRAL), Partial Award
of 17 March 2006, para. 449.
248
Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ICSID Case
No. ARB(AF)/00/2, Award of 29 May 2003, para. 153; Canfor Corporation v. United States,
Terminal Forest Products Ltd. v. United States of America, UNCITRAL, Decision on preliminary
question of 6 June 2006, para. 182; Sempra Energy International v. Argentine Republic, ICSID
Case No. ARB/02/16, Award of 28 September 2007, para. 297.
249
See, for example, WTO Appellate Body Report, United States – Import Prohibition of Certain
Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998, para. 158; WTO Appellate
Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R,
3 December 2007, para. 224 (referring to good faith and abuse of rights).
250
Advisory Opinion on the Environment and Human Rights, 15 November 2017 (OC-23/17),
Series A, No. 23, para. 45; Advisory Opinion on the Rights of Legal Persons, 26 February 2016
(OC-22/16), Series A, No. 22, para. 29; Advisory Opinion on the Rights and Guarantees of
Children in the Context of Migration and/or in Need for International Protection, 19 August
2014 (OC-21/14), Series A, No. 21, para. 60.
251
Almonacid Arellano and Others v. Chile, Judgment (Preliminary objections, merits, reparations
and costs) of 26 September 2006, Series C, No. 154, para. 65; Moiwana Community v. Suriname,
Judgment (Preliminary objections, merits, reparations and costs) of 15 June 2005, Series C,
No. 124, para. 58; Neira Alegría et al. v. Peru, Judgment (Preliminary objections) of
11 December 1991, Series C, No. 13, para. 29.
252
Bulacio v. Argentina, Judgment (Merits, reparations and costs) of 18 September 2003, Series C,
No. 100, paras. 117–118; Advisory Opinion on the Right to Information on Consular Assistance
in the Framework of the Guarantees of the Due Process of Law, 1 October 1999 (OC-16/99),
Series A, No. 16, para. 128.
253
Durand and Ugarte v. Peru, Judgment of 16 August 2000, Series C, No. 68, para. 76; Castillo
Petruzzi et al. v. Peru, Judgment (Merits, reparations and costs) of 30 May 1999, Series C,
No. 52, paras. 116 and 166; Blake v. Guatemala, Judgment (Merits) of 24 January 1998,
Series C, No. 36, para. 112; Godínez Cruz v. Honduras, Judgment (Merits) of 20 January 1989,
Series C, No. 5, para. 172; Velásquez-Rodríguez v. Honduras, Judgment (Merits) of 29 July
1988, Series C, No. 4, para. 163.

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any violation of an international obligation entails an obligation to make reparation, 254

a principle that allows for the revision of judgments, 255 and principles relating to
consequential damages and loss of profits as damages. 256 In only one case has the
Court made express reference to Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice in order to determine who are the successors of a person
for purposes of reparation. 257 In another case, the Court considered that the principle
of “equality before the law, equal protection before the law and non -discrimination”
is a general principle of law which, moreover, constitutes a peremptory norm of
general international law (jus cogens). 258
136. The European Court of Human Rights, in Golder v. the United Kingdom, made
reference to Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice, and similarly determined that general principles of law must be taken into
account when interpreting the European Convention on Human Rights. 259
137. One may also find in practice references to what appear to be general pr inciples
of law with a regional scope of application (an issue which, as mentioned above, may
be addressed in a future report). This is notably the case of the European Court of
Justice, which on several occasions has applied “general principles of Community
law” based on constitutional traditions common to its member States or on the
European Union legal order. 260
138. Furthermore, “general principles” also appear to have been applied to some
extent by international administrative tribunals. 261

__________________
254
Goiburú et al. v. Paraguay, Judgment (Merits, reparations and costs) of 22 September 2006,
Series C, No. 153, paras. 140–141; “Panel blanca” (Paniagua Morales et al.) v. Guatemala,
Judgment (Reparations and costs) of 25 May 2001, Series C, No. 76, para. 75; Velásquez-
Rodríguez v. Honduras, Judgment (Reparations and costs) of 21 July 1989, Series C, No. 7,
para. 25.
255
Genie Lacayo v. Nicaragua, Order of 13 September 1997, Series C, No. 45, para. 9.
256
Aloeboetoe et al. v. Suriname, Judgment (Reparations and costs) of 10 September 1993, para. 50.
257
Ibid., paras. 61–62.
258
Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants ,
17 September 2003 (OC-18/03), Series A, No. 18, para. 101.
259
Golder v. the United Kingdom, Judgment, 21 February 1975, Series A, No. 18, para. 35. See also
Enea v. Italy [Grand Chamber], No. 74912/01, Judgment, 17 September 2009, Reports of
Judgments and Decisions of the European Court of Human Rights 2009, para. 104; Demir and
Baykara v. Turkey [Grand Chamber], No. 34503/97, Judgment, 12 November 2008, Reports of
Judgments and Decisions of the European Court of Human Rights 2008, para. 71. See also
M. Forowicz, The Reception of International Law in the European Court of Human Rights
(Oxford, Oxford University Press, 2010), p. 360; J. G. Merrills, The Development of
International Law by the European Court of Human Rights (Manchester, Manchester University
Press, 1988), pp. 160–183.
260
See, for example, E. Castellarin, “General Principles of EU Law and General International Law”,
in M. Andenas et al. (eds.), General Principles and the Coherence of International Law (Brill,
2019), pp. 131–148; S. Vogenauer and S. Weatherill (eds.), General Principles of Law: European
and Comparative Perspectives (Hart, 2017); K. Lenaerts and J.A. Gutiérrez-Fons, “The
constitutional allocation of powers and general principles of EU law ”, Common Market Law
Review, vol. 47 (2010), pp. 1629–1669; T. Tridimas, The General Principles of EU Law, 2nd ed.
(Oxford, Oxford University Press, 2016); C. Semmelmann, “General principles of EU law
between a compensatory role and an intrinsic value”, European Law Journal, vol. 19 (2013),
pp. 457–487; U. Bernitz and J. Nergelius (eds.), General Principles of European Community Law
(The Hague, Kluwer Law International, 2000); J.A. Usher, General Principles of EC Law
(London, Longman, 1998).
261
See, for example, G. Ullrich, The Law of the International Civil Service (Berlin, Duncker and
Humblot, 2018), Part 2, chap. 2; A. Reinisch, “Sources of international organizations’ law: why
custom and general principles are crucial”, in J. d’Aspremont and S. Besson (eds.), The Oxford
Handbook of the Sources of International Law (Oxford University Press, 2017), p. 1022.

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139. This brief overview of some of the recent practice relating to general principles
of law shows that, since the adoption of the Statute of the Permanent Court of
International Justice in 1920, States and international courts and tribunals have
referred to this source of international law on several occasions and in different
contexts, leaving no doubt as to its relevance for the international legal order.

Part Four: Elements and origins of general principles of law

140. In the light of the above overview of the development of general principles of
law in the practice of States and the decisions of international courts and tribunals
over time, the Special Rapporteur now turns to an analysis of certain basic aspects of
the present topic: the elements of general principles of law found in Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice and the origins of
general principles of law as a source of international law. In addition, some
clarifications as regards terminology are provided.

I. The elements of general principles of law in Article 38,

paragraph 1 (c), of the Statute of the International Court
of Justice
141. As mentioned in Part One, the starting point for the work of the Commission o n
the present topic is Article 38, paragraph 1 (c), of the Statute of the International Court
of Justice. The present section aims to provide an initial assessment of that provision
by addressing what, in the view of the Special Rapporteur, may be consider ed the
elements contained therein. In particular, the following sub -sections deal with the
term “general principles of law”, the requirement of “recognition”, and the term
“civilized nations”.

A. “General principles of law”

142. The Special Rapporteur considers it useful to start with an analysis of the first
element of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice, namely the term “general principles of law”. Two issues are addressed in the
present sub-section: first, whether the term “general principles of law” tells us
anything about the possible characteristics, origins, functions or otherwise of this
source of international law; second, the relationship between general principles of
law and general international law.
143. As an introductory remark, the Special Rapporteur notes that “general principles
of law” are not unique to the international legal system. A similar notion exists also
in most, if not all, domestic legal systems, although the same terminology is not
always employed. The Austrian General Civil Code, for example, provides that when
a case cannot be solved by statutory rules or by analogy, a decision must be made on

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the basis of natürliche Rechtsgrundsätze (“natural legal principles”). 262 The Italian
Civil Code establishes that, when a dispute cannot be solved with a specific statutory
rule, recourse may be had to analogy and, if that fails, to the general principles of the
State’s legal system. 263 According to the Mexican Federal Civil Code, when a civil
dispute cannot be solved by statutory rules or by interpreting them, it shall be solved
in accordance with the general principles of law. 264 The Spanish Civil Code similarly
authorizes the application of general principles of law in the absenc e of applicable
statutes or custom. 265 The Egyptian Civil Code authorizes judges to decide on the
basis of principles of natural law and principles of justice in the absence of applicable
legislative texts, custom or principles of Islamic Law. 266

__________________
262
Article 7 (“Lässt sich ein Rechtsfall weder aus den Worten, noch aus dem natürlichen Sinne eines
Gesetzes entscheiden, so muss auf ähnliche, in den Gesetzen bestimmt entschiedene Fälle, und
auf die Gründe anderer damit verwandten Gesetze Rücksicht genommen werden. Bleibt der
Rechtsfall noch zweifelhaft, so muss solcher mit Hinsicht auf die sorgfältig gesammelten und
reiflich erwogenen Umstände nach den natürlichen Rechtsgrundsätzen entschieden werden ”;
Unofficial translation: “If a legal dispute cannot be decided on the basis of the terms or the
natural sense of the law, consideration must be given to similar situations regulated by the law
and to the raison d’être of other related laws. If the legal dispute remains doubtful, it shall be
decided in accordance with the natural legal principles, taking into account the carefully
collected and well-considered circumstances.”) [When a legal case cannot be adjudicated with
reference either to the wording or to the natural meaning of a law, consideration shall be given to
similar cases that are provided for in law and to the reasoning of other related laws. If the case
remains in doubt, it shall be adjudicated with reference to carefully gathered and thoroughly
considered facts in accordance with the principles of natural law.].
263
Article 12 (“Nell’applicare la legge non si può ad essa attribuire altro senso che quello fatto
palese dal significato proprio delle parole secondo la connessione di esse, e dalla inten zione del
legislatore. Se una controversia non può essere decisa con una precisa disposizione, si ha
riguardo alle disposizioni che regolano casi simili o materie analoghe; se il caso rimane ancora
dubbio, si decide secondo i principi generali dell’ordinamento giuridico dello Stato” Unofficial
translation: “In apply the law, it cannot be attributed to it a meaning other than that deriving from
the clear meaning of its terms read in their textual context, and from the intention of the
legislator. If a legal dispute cannot be decided with a particular rule, consideration must be given
to the rules that regulate similar cases or analogous matters; if the case remains doubtful, it shall
be decided in accordance with the general principles of the legal system of the State.”) [In the
application of the law, no interpretation shall be attributed to it other than that which emerges
clearly from the inherent meaning of the words and their interrelation, and from its legislative
intent . If a dispute cannot be adjudicated through the application of a specific statutory
provision, account shall be taken of provisions governing similar cases or analogous subject
matter; if the case remains in doubt, it shall be adjudicated in accordance with the general
principles of the legal system of the State.].
264
Article 19 (“Las controversias judiciales del orden civil deberán resolverse conforme a la letra de
la ley o a su interpretación jurídica. A falta de ley se resolverán conforme a los principios
generales de derecho”) [Legal disputes of a civil nature shall be adjudicated in accordance with
statutory rules or the legal interpretation thereof. In the absence of such rules, they shall be
adjudicated in accordance with the general principles of law].
265
Article 1(4) (“Los principios generales del derecho se aplicarán en def ecto de ley o costumbre,
sin perjuicio de su carácter informador del ordenamiento jurídico ”) [The general principles of
law shall apply in the absence of applicable statutes or custom, without prejudice to their role in
informing the legal system].
266
Article 1(2) (‫ تطبيقه يمكن تشريعي نص يوجد لم فإذا‬، ‫ العرف بمقتضى القاضي حكم‬، ‫ يوجد لم فإذا‬، ‫مبادئ فبمقتضى‬
‫ اإلسالمية الشريعة‬، ‫ توجد لم فإذا‬، ‫العدالة وقواعد الطبيعي القانون مبادئ فبمقتضى‬.; Unofficial translation: “If
there is no applicable legislation, the judge shall decide on the basis of custom. In the absence of
custom, the judge shall decide on the basis of the principles of Islamic Law. In the absence of
any such principle, the judge shall decide on the basis of the principles of natural law and the
principles of justice.”) In the absence of applicable legal provisions, the judge shall decide in
accordance with custom, and in the absence of custom, in accordance with the principles of
Islamic law. In the absence of such principles, the judge shall apply the principles of natural law
and the rules of equity.].

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144. The question may arise whether general principles within domestic legal
systems like the ones mentioned above and general principles of law in the sense of
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice share
any characteristics. Some authors seem to be of this view. 267 The drafting history of
Article 38, paragraph 3, of the Statute of the Permanent Court of International Justice
set out in Part Three above shows that one of the reasons for the inclusion of that
provision in the Statute was the perceived need to fill gaps in conventional and
customary international law and to avoid findings of non liquet. 268 If filling gaps is
indeed one function of general principles of law, then this may be something that they
have in common with general principles within domestic legal systems. At the same
time, however, one must not lose sight of the fact that general principles of law in the
sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice,
being a source of international law, are likely to have their own unique features due
to the structural differences between the international legal system and domestic legal
orders.
145. The term “general principles of law” in Article 38, paragraph 1 (c), of the Statute
of the International Court of Justice has been interpreted on various occasions, either
as a whole or each word separately, to try to clarify certain aspects of this source of
international law, including its characteristics, origins and functions. The Spe cial
Rapporteur considers that this exercise is useful as an initial approach to the present
topic. It is important to highlight, however, that any conclusions drawn in this manner
can only be preliminary and need to be further assessed in the light of exi sting
practice.
146. The term “principle” and its relationship with the term “rule” has attracted
considerable attention. To cite but a few views, one author suggests that “[t]he
difference between legal principles and legal rules is a logical distinction. Both sets
of standards point to particular decisions about legal obligation in particular
circumstances, but they differ in the character of the direction they give. Rules are
applicable in an all-or-nothing fashion … the principle is one which [one] must take
into account, if it is relevant, as a consideration inclining in one direction or
another”. 269 For another author, “[b]y a principle, or general principle, as opposed to
a rule, even a general rule, of law is meant chiefly something which is not itself a
rule, but which underlies a rule, and explains or provides the reason for it. A rule
answers the question ‘what’; a principle in effect answers the question ‘why’”. 270 Yet
another author suggests that principles “restent synonymes de règles juridiques
abstraites, fournissant les bases d’un régime juridique susceptible de s’appliquer à de
multiples situations concrètes, soit pour les réglementer de façon permanente, soit
pour résoudre les difficultés qu’elles font naître” [are understood as abstract legal
rules underpinning a legal regime that may be applied to a variety of specific

__________________
267
See, for example, S. Besson, “General principles of international law – whose principles?”, in
S. Besson and P. Pichonnaz (eds.), Les principes en droit européen – Principles in European Law
(Geneva, Schulthess, 2011), pp. 32–34. The author is of the view that “[g]eneral principles of
international law … share the main characteristics of general principles of domestic law …: they
are general and abstract, but also fundamental and indeterminat e legal norms” (p. 32).
268
See para. 108 above.
269
R. Dworkin, Taking Rights Seriously (London, Bloomsbury, 2013), pp. 40 and 42.
270
G. Fitzmaurice, “The general principles of international law considered from the standpoint of
the rule of law”, Collected Courses of the Hague Academy of International Law, vol. 92 (1957),
pp. 5–128, at p. 7. Commenting on this view, Thirlway suggests that “[t]his does not mean that a
principle is on too elevated a plane to be capable of being applied to a legal problem, but it does
mean that the principle will, by being applied to the case, in effect generate a rule for solving it ”
(Thirlway, The Sources of International Law (footnote 13 above), p. 107).

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situations, either to govern them on an ongoing basis or to resolve the difficulties to

which they give rise]. 271
147. It has also been suggested in the literature that, “when associated with ‘general’
the word ‘principle’ implies a wide-ranging norm”, 272 or that the term “general
principle” relates to the number of domestic legal systems that one must look at to
identify a general principle of law in the sense of Article 38, paragraph 1 ( c), of the
Statute of the International Court of Justice. 273 On the other hand, the view has been
expressed that a “principle of law differs from a legal rule as commonly understood
not on account of its wide validity, but rather owing to the generality of its content ”. 274
Furthermore, some authors suggest that general principles embody important or
fundamental values. 275
148. Judge Cançado Trindade, also elaborating on the term “principles”, stated that:
Every legal system has fundamental principles, which inspire, inform and
conform to their norms. It is the principles (derived etymologically from the
Latin principium) that, evoking the first causes, sources or origins of the norms
and rules, confer cohesion, coherence and legitimacy upon the legal norms and
the legal system as a whole. It is the general principles of law ( prima principia)
which confer to the legal order (both national and international) its ineluctable
axiological dimension; it is they that reveal the values which inspire the whole
legal order and which, ultimately, provide its foundations themselves. 276
149. In contrast, other authors do not see much of a difference between the terms
“rules” and “principles”. For instance, it has been noted that “although there is quite
a debate among legal theorists as to the difference and hierarchical relation between
rules and principles, none of this finds any reflection in the utterances of the
[International Court of Justice], which tends to treat the two terms as synonymous”. 277
Another author suggests that “[i]t is almost impossible to draw a clear line between
positive legal rules that are general principles and other positive legal rules ”. 278

__________________
271
M. Virally, “Le rôle des « principes » dans le développement du droit international”, in Recueil
d’études de droit international en hommage à Paul Guggenheim (Geneva, IUHEI, 1968),
pp. 531–556, at pp. 533–534.
272
Pellet and Müller, “Article 38” (footnote 13 above), p. 925.
273
D. Costelloe, “The role of domestic law in the identification of general principles of law under
article 38(1)(c) of the Statute of the International Court of Justice ”, in M. Andenas et al. (eds.),
General Principles and the Coherence of International Law (Brill, 2019), p. 183.
274
G. Herczegh, General Principles of Law and the International Legal Order (Budapest,
Akadémiai Kiadó, 1969), p. 43. He adds that “general principles of international law denote rules
of general content rather than provisions governing details” (ibid.).
275
Besson, “General principles of international law – whose principles?” (footnote 267 above),
pp. 32–33; M. Sørensen, “Principes de droit international public: cours général ”, Collected
Courses of the Hague Academy of International Law, vol. 101 (1960), pp. 16–30, at p. 16. For
Thirlway, “there is about the concept of ‘general principles’ such an air of permanence, of
stability, of having been selected for their evident and perpetual rightness, that an interpretation
of the phrase as meaning ‘whatever principles may in future come to be regarded as general
principles’ is somehow disquieting” (Thirlway, The Sources of International Law (footnote 13
above), p. 111).
276
Pulp Mills (footnote 17 above), Separate Opinion of Judge Cançado Trindade, p. 210, para. 201.
277
M. Mendelson, “The International Court of Justice and the sources of international law ”, in
V. Lowe and M. Fitzmaurice (eds.), Fifty years of the International Court of Justice: Essays in
honour of Sir Robert Jennings (Cambridge, Cambridge University Press, 1996), pp. 63–89, at
p. 80.
278
Bogdan, “General principles of law and the problem of lacunae in the law of nations ”
(footnote 13 above), p. 47. See also Kolb, La bonne foi en droit international public (footnote 25
above), pp. 53–54.

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150. The drafting history of Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice does not provide much guidance on this matter. It was
not discussed by the members of the Advisory Committee of Jurists, States or others.
Members of the Advisory Committee of Jurists, for instanc e, appear to have used the
terms “rules” and “principles” interchangeably during their deliberations. 279
Article 38 of the Statute of the International Court of Justice itself does not make a
clear distinction between “rules” and “principles”, since the “rules of law” to be
determined through the subsidiary means under Article 38, paragraph 1 ( d), clearly
include general principles of law. 280
151. The International Court of Justice and the Commission do not seem to make a
clear distinction between “rules” and “principles”, but they agree that the latter may
be regarded as norms with a more general and more fundamental character. In the
Gulf of Maine case, for example, the Chamber of the International Court of Justice
stated that:
[T]he association of the term “rules” and “principles” [in the Special
Agreement] is no more than the use of a dual expression to convey one and the
same idea, since in this context “principles” clearly means principles of law, that
is, it also includes rules of international law in who se case the use of the term
“principles” may be justified because of their more general and more
fundamental character. 281
152. Similarly, in its draft conclusions on the identification of customary
international law, the Commission explained that “[t]he reference to ‘rules’ of
customary international law in the present draft conclusions and commentaries
includes rules of customary international law that may be referred to as ‘principles’
because of their more general and more fundamental character ”. 282
153. In the light of the above, it may be concluded that the term “general principles
of law” in Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice makes reference to norms that have a “general” and “fundamental” character.
They are “general” in the sense that their content has a certain degree of abstraction,
and “fundamental” in the sense that they underlie specific rules or embody important
values.
154. It cannot be excluded, however, that some general principles of law may not
have a “general” and “fundamental” character in the sense described above. As shown
in Part Three above and will be further discussed below, States have invoked a great
variety of norms that they considered to be general principles of law in the context of
litigation, such as good faith, abuse of rights, the “clean hands” doctrine, unjust
enrichment, the obligation to make full reparation, res judicata, a right of passage
over the territory of another State, and a right of lawyer-client confidentiality. The
same variety can be found in the decisions of international courts and tribunals, which
have relied on general principles of law to, inter alia, determine the separate

__________________
279
For example, the initial proposal made by Descamps was “the rules of international law as
recognised by the legal conscience of civilized nations ” (see para. 93 above). Similarly,
according to Loder, “rules recognized and respected by the whole world had been mentioned,
rules which were, however, not yet of the nature of positive law, but it was precisely the Court ’s
duty to develop law, to “‘ripen’ customs and principles universally recognised, and to crystallize
them into positive rules” (see para. 96 above).
280
S. Yee, “Article 38 of the ICJ Statute and applicable law: selected issues in recent cases ”,
Journal of International Dispute Settlement, vol. 7 (2016), pp. 472–498, at pp. 488–489.
281
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports
1984, p. 246, at pp. 288–290, para. 79.
282
Para. (3) of the commentary to conclusion 1 of the draft conclusion on identification of
customary international law, A/73/10, paras. 65–66, at p. 124. See also para. 67 above.

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personality of a company from its shareholders, provide a definition of “rape” for the
purposes of determining the commission of an international crime, and provide a
definition of “successors” for purposes of reparation. Although some of these
principles, such as good faith, may be considered “general” and “fundamental”, it is
questionable whether others, such as a right of lawyer-client confidentiality or a right
of passage over the territory of another State, or certain principles relating to
procedural matters, are of comparable character.
155. With respect to the view that the term “general” employed in Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice suggests a broad
scope of application, i.e., that general principles of law apply to all States, this may
well be the case. 283 However, exceptions to this general rule appear to be supported
by references in practice to general principles with a regional scope of application.
As mentioned in Part Three above, examples of this include practice in Africa, Asia
and Europe. 284
156. As regards the term “law” in Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice, it has been suggested in the literature that, taken in its
ordinary meaning, it can refer both to national law and to international law, so that a
general principle of law can arise both from national legal systems and from the
international legal system. 285 Moreover, assuming that the purpose of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice is to fill the gaps
in conventional and customary international law, the same author suggests that there
is no reason to believe that the drafters intended to limit the origins of general
principles of law to national legal systems. Instead, they “must be deemed to have by
implication assented to the use of general principles of international law”. 286 This
view may be assisted by the way in which general principles are applied in some
domestic legal systems. As shown above, national courts are sometimes allowed to
rely on general principles proper to their own legal s ystem when a dispute cannot be
solved on the basis of other rules. Following this logic, one could consider that
general principles of law in the sense of Article 38, paragraph 1 ( c), of the Statute of
the International Court of Justice ought to include ge neral principles formed within
the international legal system as well.
157. Others have argued that the term “law” suggests rather that, when identifying
general principles of law derived from national legal systems, all branches of the latter
are relevant. Judge Tanaka, for instance, was of the view that “[s]o far as the ‘general
principles of law’ are not qualified, the ‘law’ must be understood to embrace all
branches of law, including municipal law, public law, constitutional and administrative
law, private law, commercial law, substantive and procedural law, etc. ”. 287
158. While these interpretations of the term “law” are plausible, the Special
Rapporteur considers, as mentioned above, that they need to be further assessed as
the topic progresses and taking into account the practice of States and the decisions
of international courts and tribunals.
159. A last issue to address in the present sub-section is the relationship between
general principles of law and “general international law”.
160. The fact that general international law encompasses general principles of law
has been confirmed within the Commission on a number of occasions. Thus, the use
of the term “general international law” may refer, in certain cases, depending on the
__________________
283
See also para. 161 below.
284
See paras. 125 and 137 above.
285
Lammers, “General principles of law recognized by civilized nations” (footnote 13 above), p. 67.
286
Ibid.
287
South West Africa (footnote 221 above), Dissenting Opinion of Judge Tanaka, p. 294.

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context, to general principles of law. For example, in its commentary to draft

article 33 of the draft statute for an international criminal court, the Commission
specified that “the expression ‘principles and rules’ of general international law
includes general principles of law”. 288 Later, the report of the Study Group on
fragmentation of international law stated that “‘[g]eneral international law’ clearly
refers to general customary law as well as ‘general principles of law recognized by
civilized nations’ under Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice”. 289 Similarly, in its commentaries to the draft conclusions on the
identification of customary international law, the Commission noted that “‘general
international law’ is used in various ways (not always clearly specified) including to
refer to rules of international law of general application, whether treaty law or
customary international law or general principles of law”. 290 Moreover, the second
report of the Special Rapporteur for the topic “Peremptory norms of general
international law (jus cogens)” indicated that “[g]eneral principles of law, like rules
of customary international law, are generally applicable ”, 291 and that general
international law includes general principles of law. 292 On that topic, the Drafting
Committee provisionally adopted draft conclusion 5, paragraph 2, according to which
general principles of law, together with customary international law and treaty
provisions, may serve as a basis for peremptory norms of general international law
(jus cogens). 293
161. In the North Sea Continental Shelf case, the International Court of Justice stated
that norms of general international law “must have equal force for all members of the
international community”. 294 Given the ample support that general international law
encompasses general principles of law, it can be concluded that general principles of
law in the sense of Article 38, paragraph 1 (c), of the Statute of the International Court
of Justice are universally applicable. This is without prejudice to the possibility of
general principles of law with a regional or bilateral scope of application.
162. In the light of the preceding paragraphs, it can be concluded that general
principles of law in the sense of Article 38, paragraph 1 ( c), of the Statute of the
International Court of Justice may share some characteristics with the general
principles that exist within domestic legal systems, but the structural differences
between the latter and the international legal system must not be overlooked.
Furthermore, general principles of law as a source of international law may have a
more “general” and more “fundamental” character than other rules of international
law. Moreover, the ordinary meaning of the term “general principles of law”, together
with the generally accepted function of this source of international law (gap -filling),
suggests that general principles of law are not limited to those derived from national
legal systems. Finally, general principles of law, being part of general international
law, are universally applicable.

__________________
288
Para. (2) of the commentary to art. 33 of the draft statute for an international court, Yearbook …
1994, vol. II (Part Two), para. 91, at p. 51.
289
“Fragmentation of international law: difficulties arising from the diversification and expansion
of international law”, report of the Study Group of the International Law Commission, finalized
by Martti Koskenniemi (A/CN.4/L.682 and Corr.1 and Add.1) (see footnote 84 above), p. 254.
See also para. 174.
290
A/73/10, p. 123, footnote 667.
291
A/CN.4/706, para. 48.
292
Ibid., para. 49.
293
Statement of the Chair of the Drafting Committee, 26 July 2017, annex, p. 11.
294
North Sea Continental Shelf (footnote 221 above), p. 38, para. 63.

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B. “Recognized”

163. The second element of general principles of law found in Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice is the requirement
of “recognition”. In the view of the Special Rapporteur, this second element is closely
related to the issue of the identification of general principles of law, which will be
addressed in a future report, and to the origins of general principles of law as a source
of international law, which is further discussed below. The present section is therefore
limited to some general remarks concerning recognition.
164. At the outset, a comparison between paragraphs 1 (b) and paragraph 1 (c) of
Article 38 of the Statute of the International Court of Justice seems warranted, as it
may be useful to understand the requirement of recognition. In its draft conclusions
on the identification of customary international law, the Commission follo wed the
“two-element approach”, based on the two elements that appear in Article 38,
paragraph 1 (b): a general practice and its acceptance as law (opinio juris). In this
regard, the Commission clarified that these “are the essential conditions for the
existence of a rule of customary international law”. 295
165. Article 38, paragraph 1 (c), of the Statute of the International Court of Justice is
worded quite differently: it does not mention a general practice accepted as law, but
speaks of principles recognized by “civilized nations”. In the view of the Special
Rapporteur, recognition is similarly the essential condition for the existence of a
general principle of law as a source of international law. 296 Therefore, to identify a
general principle of law, a careful examination of available evidence showing that it
has been recognized is required.
166. The drafting history of Article 38, paragraph 3, of the Statute of the Permanent
Court of International Justice, and in particular the procès-verbaux of the Advisory
Committee of Jurists, confirms that recognition is the essential condition for the
existence of general principles of law. While some disagreements existed among the
members of the Committee, they agreed that the formal validity of general principles
of law depends on their recognition by “civilized nations”. The rationale behind this
was to avoid granting judges overly broad discretion in determining the law, or even
the power to legislate. 297 In other words, the existence of a general principle of law
must be determined on an objective basis. This is all the more warranted because, as
mentioned above, general principles of law as a source of international law must apply
in the relations between subjects of international law generally.
167. What forms may recognition take? The answer to this question may depend on
the category of general principles of law. With respect to general principles of law
derived from national legal systems, a position that is generally accepted in the
literature and, as will be shown in the next section, is supported by practice is that the
__________________
295
Para. (2) of the commentary to conclusion 2 of the draft conclusion on identification of
customary international law, A/73/10, paras. 65–66, at p. 125. The Commission further clarified
that “[t]he identification of such a rule thus involves a careful examination of available evidence
to establish their presence in any given case” (ibid.).
296
One author has noted in this regard that: “In the definition of the third source of international law
there is also the element of recognition on the part of civilised peoples but the requirement of a
general practice is absent. The object of recognition i s, therefore, no longer the legal character of
the rule implied in an international usage, but the existence of certain principles intrinsically
legal in nature” (Cheng, General Principles of Law as Applied by International Courts and
Tribunals (footnote 20 above), p. 24).
297
See Cheng, General Principles of Law as Applied by International Courts and Tribunals
(footnote 20 above), p. 24 (“how is it possible to ascertain whether a given principle is a principle
of law and not of another cognate social discipline, such as religion or morality? The recognition
of its legal character by civilised peoples supplies the necessary element of determination ”).

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requirement of recognition is fulfilled when a principle exists within a sufficiently

large number of national legal systems. 298 Some scholars make an express link
between recognition and the existence of the principle in foro domestico. Others do
not mention the requirement of recognition, but advance more broadly that general
principles of law “derive from”, or are those “accepted in”, “found in”, “applied in”
or “borrowed from” national legal systems, which could be interpreted as implying
that this is how recognition takes place. In explaining the logic behind this form of
recognition, it has been observed, for example, that the existence of a principle within

__________________
298
Pellet and Müller, “Article 38” (footnote 13 above), p. 925; Andenas and Chiussi, “Cohesion,
convergence and coherence of international law” (footnote 13 above), p. 26; Palchetti, “The role
of general principles in promoting the development of customary international rules ”
(footnote 21 above), p. 48; Costelloe, “The role of domestic law in the identification of general
principles of law under article 38(1)(c) of the Statute of the International Court of Justice ”
(footnote 273 above), p. 178; B. Juratowitch and J. Shaerf, “Unjust enrichment as a primary rule
of international law”, in M. Andenas et al. (eds.), General Principles and the Coherence of
International Law (Leiden, Brill, 2019), pp. 231–232; A. Yusuf, “Concluding remarks”, in ibid.,
p. 450; A. Orakhelashvili, Akehurst’s Modern Introduction to International Law (Routledge,
2019), p. 46; E. Bjorge, “Public law sources and analogies of international law”, in Victoria
University of Wellington Law Review, vol. 49 (2018), pp. 533–560, at p. 536; Redgwell, “General
principles of international law” (footnote 13 above), pp. 5–19; O. Casanovas and A. Rodrigo,
Compendio de Derecho Internacional Público, 6th ed. (Tecnos, 2017), p. 72; B.I. Bonafé and
P. Palchetti, “Relying on general principles in international law”, in C. Brölmann and Y. Radi
(eds.), Research Handbook on the Theory and Practice of International Lawmaking
(Cheltenham, Edward Edgar, 2016), pp. 160–176, at p. 163; Yee, “Article 38 of the ICJ Statute
and applicable law …” (footnote 280 above), p. 487; A. Verdross and B. Simma, Universelles
Völkerrecht (Berlin, Dunker and Humboldt, 2010), p. 383; Besson, “General principles of
international law – whose principles?” (footnote 267 above), pp. 33 and 35; Wolfrum, “General
international law (principles, rules, and standards)” (footnote 199 above), paras. 30–32;
T. Gazzini, “General principles of law in the field of foreign investment ”, Journal of World
Investment and Trade, vol. 10 (2009), pp. 103–120, at p. 104; A. Boyle and C. Chinkin, The
Making of International Law (Oxford, Oxford University Press, 2007), p. 223; Jennings and
Watts, Oppenheim’s International Law (footnote 136 above), pp. 36–37; Barberis, “Los
Principios Generales de Derecho como Fuente del Derecho Internacional ” (footnote 13 above),
pp. 30–31; G. Abi-Saab, “Cours général de droit international public”, Collected Courses of the
Hague Academy of International Law, vol. 207 (1987), pp. 188–189; American Law Institute,
Restatement of the Law (Third), the Foreign Relations Law of the United States, vol. 1 (St. Paul,
Minnesota, 1987), p. 24; Lammers, “General principles of law recognized by civilized nations”
(footnote 13 above), pp. 59–66, 74; Bogdan, “General principles of law and the problem of
lacunae in the law of nations” (footnote 13 above), pp. 42–43; Pellet, Recherche sur les principes
généraux de droit en droit international (footnote 113 above), pp. 9, 195–196 and 239; P. de
Visscher, “Cours général de droit international public”, Collected Courses of the Hague Academy
of International Law, vol. 136 (1972), pp. 114 and 116; C. de Visscher, Théories et réalités en
droit international public, 4th ed. (Paris, Pedone, 1970), p. 419; Herczegh, General Principles of
Law and the International Legal Order (footnote 274 above), p. 97; Blondel, “Les principes
généraux de droit devant la Cour permanente de Justice internationale et la Cour internationale
de Justice” (footnote 13 above), pp. 203 and 213; Verdross, “Les principes généraux du droit
dans la jurisprudence internationale” (footnote 136 above), pp. 223–224; W. Bishop, “General
course of public international law”, Collected Courses of the Hague Academy of International
Law, vol. 115 (1965), p. 238; Jenks, The Common Law of Mankind (footnote 17 above), p. 312;
Waldock, “General course on public international law” (footnote 113 above), pp. 55–56; Cheng,
General Principles of Law as Applied by International Courts and Tribunals (footnote 20 above),
p. 25; L. Le Fur, “Règles générales du droit de la paix”, Collected Courses of the Hague
Academy of International Law, vol. 54 (1935), p. 205; G. Ripert, “Les règles du droit civil
applicables aux rapports internationaux”, Collected Courses of the Hague Academy of
International Law, vol. 44 (1933), pp. 579–580; Anzilotti, Cours de droit international
(footnote 13 above), p. 117. See also the International Law Association, 2018 draft report on
“The use of domestic law principles in the development of international law” (footnote 29 above).

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national legal systems corresponds to “the dictates of the legal conscience of civilised
nations”. 299
168. Similar expressions have been used by international courts and tribunals. In the
Barcelona Traction case, for example, the International Court of Justice determined
that “[i]t is to rules generally accepted by municipal legal systems which recognize
the limited company whose capital is represented by shares, and not to the municipal
law of a particular State, that international law refers”. 300 Similarly, in Sea-Land
Service v. Iran, the Iran-United States Claims Tribunal found that unjust enrichment
“is codified or judicially recognised in the great majority of the municipal legal
systems of the world, and is widely accepted as having been assimilated into the
catalogue of general principles of law available to be applied by international
tribunals”. 301
169. That the requirement of recognition may be fulfilled through the existence of a
principle that is common to national legal systems is of course a broad proposition,
and a number of questions remain open. For example, the degree of recognition for a
general principle of law to emerge needs to be considered. Furthermore, it is often
suggested that, after a principle common to national legal systems is identified, it
must be further determined that it is applicable in the international legal system. This
is sometimes referred to as “transposition”. 302 The rationale behind this is “that
conditions in the international field are sometimes very different from what they are
in the domestic, and that rules which these latter conditions fully justify may be less
capable of vindication if strictly applied when transposed onto the international
level”. 303
170. A key issue in this regard is whether the requirement of recognition is also
relevant for determining whether a principle common to national legal systems is
applicable at the international level and, if so, how. This important question will be
analysed in a future report addressing the identification of general principles of law.
171. As mentioned above, another category of general principles of law often
referred to in the literature as falling within the scope of Article 38, paragraph 1 ( c),
of the Statute of the International Court of Justice is that of general principles of law
that may be formed within the international legal system and that do not have their
origin in national legal systems. Assuming that this category is distinct from the one
addressed in the preceding paragraphs, recognition may need to be established in a
different manner.
172. Some authors make broad statements that this second category falls within the
scope of Article 38, paragraph 1 (c), but they do not enter into the details of how

__________________
299
Pellet and Müller, “Article 38” (footnote 13 above), p. 925, referring to the initial proposal by
Descamps within the Advisory Committee of Jurists (see para. 93 above).
300
Barcelona Traction (footnote 217 above), p. 37, para. 50.
301
Sea-Land Service v. Iran (footnote 247 above), p. 168. See further examples in the next section.
302
Pellet and Müller, “Article 38” (footnote 13 above), pp. 930–932; Andenas and Chiussi,
“Cohesion, convergence and coherence of international law ” (footnote 13 above), p. 26;
Juratowitch and Shaerf, “Unjust enrichment as a primary rule of international law” (footnote 298
above), p. 232; Yusuf, “Concluding remarks” (footnote 298 above), p. 451; Bonafé and Palchetti,
“Relying on general principles in international law” (footnote 298 above), p. 163; Yee, “Article 38
of the ICJ Statute and applicable law …” (footnote 280 above), p. 487; Gazzini, “General
principles of law in the field of foreign investment” (footnote 298 above), p. 104; Jennings and
Watts, Oppenheim’s International Law (footnote 136 above), p. 37; Pellet, Recherche sur les
principes généraux de droit en droit international (footnote 113 above), pp. 272–320.
303
Barcelona Traction (footnote 217 above), Separate Opinion of Judge Fitzmaurice, p. 66.

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recognition takes place. 304 Those who do attempt to explain how the requirement of
recognition is met for this category advance a number of arguments.
173. For example, some maintain that the general principles of law under this
category emerge through a process of deduction or abstraction from existing rules of
conventional and customary international law. The requirement of recognition would
be met by having recourse to those existing rules, which have already been accepted
(or recognized) by States. 305 Others suggest that recognition could take the form of
acts of international organizations or similar instruments showing the consensus of
States on specific matters, such as resolutions of the General Assembly. 306 It has been
suggested that in this context “[t]he basic element should be the attitude of States to
consider themselves bound”.307
174. For purposes of the present section, it suffices to note that, despite the different
approaches in the literature, there seems to be agreement on the point that recognition
in the sense of Article 38, paragraph 1 (c), can take place at the international level,
without the need to look at the national legal systems of States. As will be shown in
the next section, this position appears to be supported to some extent by the practice
of States and the decisions of international courts and tribunals.
175. In the light of the above, it can be concluded that recognition in the sense of
Article 38, paragraph 1 (c), is the essential condition for the existence of a general
principle of law. The precise forms that such recognition can take may depend on the
category of general principles of law in question.

C. “Civilized nations”

176. Article 38, paragraph 1 (c), of the Statute of the International Court of Justice
provides that general principles of law are those recognized by “civilized nations”.
This third element concerns the question of whose recognition is required for a
general principle of law to be part of international law.
177. The term “civilized nations” is the product of political and legal conceptions
that can be traced back to the early history of international law. During that time, the
view was held that only so-called “civilized nations” participated in the formation of
international law and were obliged by it. 308 For example, only the practice of
__________________
304
Boyle and Chinkin, The Making of International Law (footnote 298 above), p. 223; Anzilotti,
Cours de droit international (footnote 13 above), p. 117.
305
Palchetti, “The role of general principles in promoting the development of customary
international rules” (footnote 21 above), p. 50; R. Yotova, “Challenges in the identification of the
‘general principles of law recognized by civilized nations ’: the approach of the International
Court”, Canadian Journal of Comparative and Contemporary Law, vol. 3 (2017), pp. 269–325,
at p. 310; Bonafé and Palchetti, “Relying on general principles in international law”
(footnote 298 above), p. 163; Wolfrum, “General international law (principles, rules, and
standards)” (footnote 199 above), paras. 33–34; A. Cassese, International Law in a Divided
World (Oxford, Clarendon, 1986), p. 174; Lammers, “General principles of law recognized by
civilized nations” (footnote 13 above), p. 74.
306
Yotova, “Challenges in the identification of the ‘general principles of law recognized by civilized
nations’” (footnote 305 above), p. 310; Wolfrum, “General international law (principles, rules,
and standards)” (footnote 199 above), para. 36; Verdross and Simma, Universelles Völkerrecht
(footnote 298 above), p. 386.
307
Gaja, “General principles in the jurisprudence of the ICJ ” (footnote 186 above), pp. 42–43. Gaja
then notes that “[t]o a certain extent, this attitude may result from the adoption of General
Assembly resolutions, but would need to be viewed in relation to other elements of State
practice. Giving relevance to State practice when asserting the existence of this type of principles
would bring these principles close to customary rules ” (ibid.).
308
J. Sloan, “Civilized nations”, Max Planck Encyclopedia of Public International Law (2011),
para. 2.

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“civilized nations” would be taken into account for purposes of determining the
existence of customary international law. 309 One author has observed that, in the
context of general principles of law, the term “civilized nations” was intended to
exclude from consideration the legal systems of countries not considered to be
civilized. 310 According to another author, when courts and tribunals resorted to
“principles common to civilized countries” to fill the gaps in treaties and custom, they
“enunciated principles that had a very general purport and were indisputably common
to all major Western legal systems”. 311
178. Today there is wide agreement in the literature that there is no need to attribute
any particular meaning to the term “civilized nations” in Article 38, paragraph 1 (c),
of the Statute of the International Court of Justice. It is often considered that the term
is anachronistic and should therefore be avoided. 312 This position is also supported by
practice, where no distinction between “civilized” and “uncivilized” nations is made.
As pointed out by Judge Ammoun:
the [text of Article 38, paragraph 1 (c), of the Statute of the International Court
of Justice] cannot be interpreted otherwise than by attributing to it a universal
scope involving no discrimination between the members of a single community
based upon sovereign equality. The criterion of the distinction between civilized
nations and those which are allegedly not so has thus been a political criterion, –
power politics, – and anything but an ethical or legal one …
…
… the Court, when quoting, as necessary, paragraph 1 (c) of Article 38, could
omit the adjective referred to, and content itself with the words “the general
principles of law recognized by … [the] nations”; or could make use of the form
of words used by Sir Humphrey Waldock in his address of 30 October 1968,
namely: “the general principles of law recognized in national legal systems ”.
One might also say, quite simply: ‘the general principles of law”. 313
179. It has also been observed that “this inappropriate wording [of ‘civilized
nations’] may partly explain why the [International Court of Justice] has been so far

__________________
309
Ibid., para. 25.
310
Cheng, General Principles of Law as Applied by International Courts and Tribunals (footnote 20
above), p. 25.
311
Cassese, “The contribution of the International Criminal Tribunal for the former Yugoslavia to
the ascertainment of general principles of law recognized by the community of nations ”
(footnote 238 above), p. 43.
312
Pellet and Müller, “Article 38” (footnote 13 above), p. 927; Yusuf, “Concluding remarks”
(footnote 298 above), pp. 449–450; Besson, “General principles of international law – whose
principles?” (footnote 267 above), pp. 37–38; Barberis, “Los Principios Generales de Derecho
como Fuente del Derecho Internacional” (footnote 13 above), p. 33; Bogdan, “General principles
of law and the problem of lacunae in the law of nations ” (footnote 13 above), p. 45; Herczegh,
General Principles of Law and the International Legal Order (footnote 274 above), p. 41;
Verdross, “Les principes généraux du droit dans la jurisprudence international ” (footnote 136
above), p. 523; Cheng, General Principles of Law as Applied by International Courts and
Tribunals (footnote 20 above), p. 25.
313
North Sea Continental Shelf (footnote 221 above), Separate Opinion of Judge Ammoun,
pp. 134−135. See also Reparation for injuries suffered in the service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 174, dissenting opinion of Judge Krylov, at p. 219
(referring to general principles of law “recognized by the nations”); Maritime Delimitation in the
Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, p. 38, Separate Opinion
of Judge Weeramantry, at p. 236, footnote 9 (referring to the term “civilized nations” as
inappropriate phraseology).

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reluctant to refer to specific rules of one or other municipal system, lest it imply that
some other systems had to be regarded as less civilized ”.314
180. Some calls to amend Article 38, paragraph 1 (c), of the Statute of the
International Court of Justice have been made. In 1971, for example, the Secretary -
General, upon request of the General Assembly, prepared a report containing the
views and suggestions of States concerning the role of the Internation al Court of
Justice. 315 Mexico and Guatemala suggested the amendment or deletion of the term
“civilized nations” in Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice. In particular, Mexico considered this term as “a verbal relic of the
old colonialism”, and suggested that the term “international community” or another
similar term be used instead. 316
181. On the assumption that general principles of law must be generally recognized,
some scholars have made a connection between the term “civilized nations” and
Article 9 of the Statute of the International Court of Justice. According to one author,
“[Article 9] affords sufficient safeguards, the judges having been elected so as to
ensure ‘the representation of the main forms of civilization and the principal legal
systems of the world’ … in view of this it may be conceded that anything which all
the judges of the Court are prepared to accept as ‘general principles of law’ must in
fact be ‘recognized by all civilized nations”. 317 A similar point was made by Judge
Ammoun in the North Sea Continental Shelf case. According to him, the requirement
of the participation of “the main forms of civilization and the principal legal systems
of the world” in the composition of the International Court of Justice reaffirms the
sovereign equality of all Member States envisaged in the Charter of the United
Nations, and that all nations should participate in the formation of general principles
of law. 318
182. A few scholars maintain that the term “civilized nations” in Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice still carries some
meaning. It has been suggested, for example, that only those States whose national
legal systems are in conformity with fundamental human right s standards, or which
are “democratic”, should be regarded as “civilized”. 319 This position, however, does
not find support in the practice of States or in the decisions of international courts and
tribunals. Maintaining a distinction between “civilized” and “uncivilized” nations
may lead to subjective and arbitrary choices when identifying general principles of
law, and would be contrary to the fundamental principle of sovereign equality.
Moreover, subjecting the identification of general principles of law t o a previous test
of conformity of national legal systems with international human rights norms or with
democratic standards would make it too burdensome, if not impossible, to identify
such principles.
183. As shown in Part Three above, certain treaties subsequent to the Statutes of the
Permanent Court of International Justice and the International Court of Justice contain
__________________
314
G. Gaja, “General principles of law”, Max Planck Encyclopedia of Public International Law
(2013), para. 2. See also Yusuf, “Concluding remarks” (footnote 298 above), p. 449.
315
A/8382.
316
Ibid., pp. 24–25.
317
M. Virally, “The sources of international law”, in M. Sørensen (ed.), Manual of Public
International Law (London, Macmillan, 1968), pp. 116–174, at p. 146.
318
North Sea Continental Shelf (footnote 221 above), Separate Opinion of Judge Ammoun, pp. 133–134.
319
Besson, “General principles of international law – whose principles?” (footnote 267 above),
p. 38; Raimondo, General Principles of Law … (footnote 13 above), p. 52–53; Sloan, “Civilized
nations” (footnote 308 above), para. 3. See also B. Conforti, International Law and the Role of
Domestic Legal Systems (Dordrecht, Martinus Nijhoff, 1993), p. 64; A. Favre, “Les principes
généraux du droit, fonds commun du droit des gens ”, in Recueil d’études de droit international
en hommage à Paul Guggenheim (IUHEI, 1968), pp. 366–390, at p. 371.

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formulations that no longer employ the term “civilized nations”. For example, the fair
and equitable treatment clause in some international investment agreements refers to
“the principle of due process embodied in the principal legal systems of the world ”. 320
Similarly, article 21, paragraph 1 (c), of the Rome Statute refers to “general principles
of law derived by the Court from national laws of legal systems of the world”. These
formulations clearly refer to principles that exist within national legal systems and
suggest that the latter should be widely representative.
184. The phrase “community of nations” has also been employed as an alternative
for “civilized nations”. This is notably the case of the International Covenant on Civil
and Political Rights, which has 172 States Parties, and article 15, paragraph 2, of
which reads: “Nothing in this article shall prejudice the trial and punish ment of any
person for any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of nations ”.
When this provision was drafted, the formulation “general principles of law
recognized by civilized nations” was proposed, 321 but it was objected to by
delegations. 322
185. In sum, there is wide agreement that a distinction between “civilized” and
“uncivilized” nations cannot be maintained. In order to avoid the historical
connotations that the term “civilized nations” in Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice may still carry, 323 alternative formulations
such as “States”, “nations” and “the community of nations” have been adopted.
186. The Special Rapporteur is of the opinion that, in addition to all the above
considerations, general principles of law as a source of international law must be seen
in the context of the fundamental principle of sovereign equality of States. Therefore,
the term “civilized nations” in Article 38, paragraph 1 (c), should be avoided and, in
any case, interpreted as referring to States generally. In this regard, the formulation
that should be preferred is “the general principles of law recognized by States”.
187. This basic conclusion naturally does not exhaust the issue of whose recognition
is required, and a number of questions remain to be addressed, such as how
representative the recognition by States must be, or whether there are other ways of
establishing the existence of a general principle of law; and whether international
organizations and other actors may also participate in the formation of general
principles of law. 324 The Special Rapporteur will deal with these issues in greater
depth in a future report. The following draft conclusion is proposed:

__________________
320
See footnote 204 above.
321
E/CN.4/SR.324, p. 4.
322
Ibid., pp. 5–14.
323
Yusuf, “Concluding remarks” (footnote 298 above), p. 449.
324
Reinisch, “Sources of international organizations’ law …” (footnote 261 above), p. 1022
(“General principles of law may provide a valid ground for establishing obligations also for
international organizations. The binding nature of general principles of law, which are normally
considered to derive from principles common to various domestic legal orders of States, may be
difficult to establish for international organizations because – as with custom – international
organizations will not have had an opportunity to participate in their creation. Nevertheless, there
are sufficient examples of areas where international organizations have been ready to accept that
general principles of law derived from the domestic law of their Member States … The relevance
of general principles of law is not limited to the special case of the [European Union]. As
witnessed by their widespread use as gap-fillers in the internal employment law of international
organizations, particularly by international administrative tribunals, general principles of law are
often considered to be directly applicable law for international organizations ”).

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“Draft conclusion 2: Requirement of recognition

For a general principle of law to exist, it must be generally recognized by States. ”

II. The origins of general principles of law as a source of

international law
188. As mentioned earlier in the present report, there is some controversy, at least in
the literature, as regards the origins of general principles of law as a source of
international law. This issue is often framed as one regarding the categories of general
principles of law that are covered by Article 38, paragraph 1 ( c), of the Statute of the
International Court of Justice, and it has been briefly touched upon in the preceding
section when dealing with the requirement of recognition.
189. While various categories of general principles of law have been proposed in the
literature, 325 two appear to be supported by practice and widely accepted by scholars:
general principles of law derived from national legal systems and general principles
of law formed within the international legal system. The Special Rapporteur deals
with these separately in the present section, without prejudice to further findings as
the topic progresses. It should be noted that the present section is intended to address
the existence of these categories of general principles of law only. It does not seek to
provide definitive answers regarding the forms that recognition may take. That is for
later.

A. General principles of law derived from national legal systems 326

190. As shown above, it appears to be quite widely accepted in the literature that one
of the possible origins of general principles of law in the sense of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice is the national legal
systems of States. The sole existence of principles common to a majority of national
legal systems appears to be regarded by many authors as fulfilling the requirement of
recognition under that provision. 327
191. That general principles of law as a source of internati onal law can arise from
national legal systems finds support in the travaux of the Statute of the Permanent
Court of International Justice, and in particular the work of the Advisory Committee
of Jurists, where there was general agreement that general principles of law were
those found in foro domestico. 328 Similarly, the practice prior to the adoption of that
Statute, being the background against which the latter was adopted, is worth recalling:
in various cases, both States and adjudicative bodies relied on rules or principles

__________________
325
See para. 23 above.
326
This category is sometimes referred to as “general principles of municipal law”, “general
principles of national law”, “general principles recognized in foro domestico” or “general
principles with a parallel in domestic legal systems”. The Special Rapporteur finds the term
“general principles of law derived from national legal systems ” more convenient as it is more
closely related to the way in which such principles are to be identified.
327
See para. 167 above.
328
See para. 109 above. One author has pointed out that the interpretation of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice as including this category of
general principles of law may be regarded as the “static and historical” interpretation of that
provision. See Kolb, La bonne foi en droit international public (footnote 25 above), p. 56.

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found in national legal systems and in Roman law to justify the application of a
corresponding principle at the international level. 329
192. This category of general principles of law is also reflected in the recent practice
of States and in the decisions of international courts and tribunals. As regards State
practice, one can find many instances of States relying on general principles of law
derived from national legal systems in the context of litigation. A well -known
example is that of Portugal and India in the Right of Passage case. Portugal explained
its claimed right of passage as follows:
le droit du Portugal de transiter à travers l’Union indienne … se présente comme
une nécessité logique, impliquée dans la notion même de souvera ineté … Mais
ce n’est pas seulement de là qu’il découle. Ses bases conventionnelles et
coutumières ne sont ni moins certaines, ni moins solides que le principe général
auquel il se rattache. 330
[the right of Portugal to transit through the Indian Union … is a logical
necessity, implied in the very notion of sovereignty … But it is not only from
there that it flows. Its conventional and customary bases are no less certain or
solid than the general principle to which it is attached.]
193. In its reply to India’s counter-memorial, 331 Portugal further explained that:
Un désaccord existe entre les Parties relativement à la notion de « principes
généraux de droit », le Gouvernement de l’Inde estimant que seuls les principes
qui sont attestés par la conformité des droits internes méritent cette appellation,
tandis que le Gouvernement portugais considère ces limites comme trop étroites.
Il est en tout cas certain que les principes admis in foro domestico par les nations
civilisées sont inclus dans l’ordre juridique international. 332
[There is a disagreement between the Parties with regard to the concept of
“general principles of law”, as the Government of India takes the view that only
those principles that are reflected in national laws are worthy of the name,
whereas the Government of Portugal regards these parameters as being too
narrow. What is certain, in any event, is that the principles recognized by
civilized nations in foro domestico are included in the international legal
system.]
194. In order to demonstrate the existence of its claimed right of passage, Portugal
produced a comparative study of 64 national legal systems, which was annexed to its

__________________
329
See in particular the Alabama Claims arbitration (footnote 120 above), the Fabiani case
(footnote 122 above), the Pious Fund case (footnote 123 above), the North Atlantic Coast
Fisheries case (footnote 128 above), and the Russian Indemnity case (footnote 132 above), all
cited in Part Three above. See also the Queen case between Brazil, Norway and Sweden (1871),
where the arbitrator applied the principle “recognized by the legislation of all countries”
according to which the claimant must prove his or her claims (“ao conhecimento da presente
questão deve ser applicado, como regra dominante de decidir, o preceito de jurisprudencia,
reconhecido pela legislação de todos os paizes, de que á parte reclamante incumbe a prova da sua
pretenção”; Unofficial translation: “[(…) in assessing the present question, one must apply, as
the decisive rule, the principle of jurisprudence, recongized by the legislation of all countries,
that the claimant has the burden of proving its claim” [the overriding rule to be applied in the
adjudication of the question at hand is the jurisprudential principle, recognized by the legislation
of all countries, that the burden of proving a claim is borne by the claimant ]) (La Fontaine,
Pasicrisie internationale (footnote 114 above), p. 155).
330
Right of Passage (footnote 222 above), Memorial of Portugal, para. 41.
331
Ibid., Counter-Memorial of India, paras. 294–306; Rejoinder of India, paras. 565–569.
332
Ibid., Reply of Portugal, para. 327.

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reply. 333 However, having found the existence of a bilateral custom between the
parties, the Court considered it unnecessary to examine whether a general principle
of law may lead to the same result.
195. In the Certain Property case, Liechtenstein argued that unjust enrichment
constituted a general principle of law within the meaning of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice. Liechtenstein
noted that “a rule must be considered as a general principle of law ( i) if it is applied
in the main systems of municipal law and (ii) if it is ‘transposable’ in international
law”. 334 To show that the first condition was fulfilled, Liechtenstein relied on Roman
law and on the legal systems of, inter alia, Austria, France, Italy, the Islamic Republic
of Iran, Switzerland, the United Kingdom and the United States. 335 These arguments
were not however addressed by the International Court of Justice since it found that
it had no jurisdiction to hear the case.
196. In the case concerning Questions relating to the Seizure and Detention of
Certain Documents and Data (discontinued in 2015), Timor-Leste claimed, inter alia,
that Australia had violated a principle of non-interference with communications with
legal advisers (legal professional privilege). Timor-Leste advanced that its claimed
right may be regarded as a rule of customary international law or a general principle
of law. 336 According to the applicant: “It need hardly be said that most States
recognise some form of legal professional privilege to protect the professional secrecy
of confidential communications between legal advisers and their clients”. 337
197. Australia responded that “[g]eneral principles of law within the meaning of
Article 38 (1) (c) of the Statute are generally derived from general principles of
municipal jurisprudence, appropriately adapted to the international law sphere t o
avoid ‘distortion’”. 338 But it rejected the arguments of Timor-Leste because “the mere
fact that a form of legal professional privilege exists in many domestic legal systems
is not sufficient to generate a new general principle of international law ”, 339 and
Timor-Leste made “no effort … to explain how the domestic law principles should be
appropriately adapted to the international law sphere without distortion, or how the
specific and often complex procedures in domestic legal systems for the claiming and
testing of privilege should be replicated under international law”. 340
198. Article 21, paragraph 1 (c), of the Rome Statute is also relevant in this regard.
It stipulates that, in the absence of rules established in the Statute, Elements of
Crimes, Rules of Procedure and Evidence, other treaty rules, and “principles and rules
of international law”, the Court shall apply “general principles of law derived by the
Court from national laws of legal systems of the world including, as appropriate, the
national laws of States that would normally exercise jurisdiction over the crime,
provided that those principles are not inconsistent with this Statute and with
international law and internationally recognized norms and standards ”. As explained
in Part Three above, the phrase “general principles of law derived by the Court from
__________________
333
Ibid., Reply of Portugal, p. 858, to be read together with annex 20 to Portugal ’s observations and
conclusions on the Preliminary Objections of the Government of India, pp. 714 ff.
334
Certain Property (footnote 225 above), Memorial of Liechtenstein, para. 6.5.
335
Ibid., paras. 6.7–6.15.
336
Questions relating to the Seizure and Detention of Certain Documents and Data (footnote 226
above), Memorial of Timor-Leste, para. 6.2.
337
In support of this, Timor-Leste provided three studies on the matter, covering 45 domestic legal
systems (annexes 22–24 of its Memorial).
338
Questions relating to the Seizure and Detention of Certain Documents and Data (footnote 226
above), Counter-Memorial of Australia, para. 4.20.
339
Ibid., para. 4.21.
340
Ibid., para. 4.22. See also paras. 4.34–4.38; 4.43–4.47. Australia provided a “Summary of
national laws on legal professional privilege/confidentiality: scope and exceptions ” (annex 51).

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national laws of legal systems of the world” may be regarded as reflecting part of the
scope of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice.
199. Similarly, some bilateral investment treaties refer to the obligation not to deny
justice “in accordance with the principle of due process embodied in the principal
legal systems of the world”. 341
200. Further State practice can be found in some decisions of national c ourts and
other similar materials. The German Federal Constitutional Court, for example, in a
judgment of 4 September 2004, considered that the term “general rules of
international law” employed in article 25 of the German Constitution includes general
principles of law, which are “recognised legal principles that are shared by domestic
legal systems and which are transposable to inter-State relations”. 342
201. In a case concerning the liability of a corporation for alleged human rights
violations, a Court of Appeals (4th Circuit) of the United States defined the scope of
the term “law of nations” (contained in the Alien Tort Statute) by reference to Article
38, paragraph 1, of the Statute of the International Court of Justice. In so doing, the
Court of Appeals referred also to section 102 of the Restatement (Third) of Foreign
Relations Law, which describes general principles of law as those accepted by the
international community of States “by derivation from general principles common to
the major legal systems”. 343
202. Similarly, the Swiss Federal Council, in a report of 2010, defined general
principles of law as principles “comprising the principles common to the major legal
systems of the world and which acquire universal value. Often derived from national
laws, they apply, as a general rule, whenever neither conventional nor customary law
serve to settle a dispute”. 344
203. Finally, it is also worth recalling that views with respect to this category of
general principles of law have already been expressed by St ates in the Sixth
Committee. This is the case of Brazil, who considered that the identification of
general principles of law is based on “all legal systems of the world”. 345
204. International courts and tribunals have also relied on this category of general
principles of law on various occasions. In the Corfu Channel case, for example, the
International Court of Justice considered, as regards the burden of proof, that a State
“should be allowed a more liberal recourse to inferences of fact and circumstantial
evidence. This indirect evidence is admitted in all systems of law, and its use is

__________________
341
See footnote 204 above.
342
2 BvR 1475/07, para. 20 (“Allgemeine Rechtsgrundsätze sind anerkannte Rechtsprinzipien, die
übereinstimmend in den innerstaatlichen Rechtsordnungen zu finden und auf den
zwischenstaatlichen Verkehr übertragbar sind” [General principles of law are recognized legal
principles that are shared by domestic legal systems and that are transposable to inter -State
relations]). See also BVerGE 118, 124, para. 63.
343
Aziz and ors v. Alcolac Incorporated and ors, Appeal judgment of 19 September 2011, ILDC
1878 (US 2011), paras. 40–42. See also Agent Orange Product Liability Litigation, Re, Vietnam
Association For Victims of Agent Orange/Dioxin and ors v. Dow Chemical Company and ors ,
Judgment of 10 March 2005, ILDC 123 (US 2005), paras. 328–330.
344
“Rapport du Conseil fédéral en réponse au postulat 07.3764 de la Commission des affaires
juridiques du Conseil des Etats du 16 octobre 2007 et au postulat 08.3765 de la Commission des
institutions politiques du Conseil national du 20 novembre 2008” (5 March 2010), p. 2084. In an
additional report of 2011, the Federal Council defined general principles of law as “norms of
universal validity since they are recognized by all the major legal systems of the world ”. See
“Rapport additionnel du Conseil fédéral au rapport du 5 mars 2010 sur la relat ion entre droit
international et droit interne” (30 March 2011), p. 3412.
345
A/C.6/72/SR.21, para. 15; A/C.6/73/SR.21, para. 41.

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recognized by international decisions”. 346 The term “all systems of law” may be
understood as including national legal systems.
205. In the Barcelona Traction case, the Court referred to municipal law in order to
apply the rules of international law on diplomatic protection. It stated that:
In turning now to the international legal aspects of the case, the Court must, as
already indicated, start from the fact that the present case essentially involves
factors derived from municipal law – the distinction and the community between
the company and the shareholder – which the Parties, however widely their
interpretations may differ, each take as the point of departure of their reasoning.
If the Court were to decide the case in disregard of the relevant institutions of
municipal law it would, without justification, invite serious legal difficulties. It
would lose touch with reality, for there are no corresponding institutions of
international law to which the Court could resort. Thus the Court has, as
indicated, not only to take cognizance of municipal law but also to refer to it. It
is to rules generally accepted by municipal legal systems which recognize the
limited company whose capital is represented by shares, and not to the
municipal law of a particular State, that international law refers. In referring to
such rules, the Court cannot modify, still less deform them. 347
206. In the South West Africa case, one of the few cases in which express reference
was made to Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice, the Court considered that:
the argument amounts to a plea that the Court should allow the equivalent of an
“actio popularis”, or right resident in any member of a community to take legal
action in vindication of a public interest. But although a right of th is kind may
be known to certain municipal systems of law, it is not known to international
law as it stands at present: nor is the Court able to regard it as imported by the
“general principles of law” referred to in Article 38, paragraph 1 (c), of its
Statute. 348
207. While the Court rejected the existence of a general principle of law in this case,
the passage can be interpreted as suggesting that actio popularis might have been
considered a general principle of law if it had existed in a sufficiently large number
of municipal systems, and not just in a certain number of them. The term “imported”
used by the Court also suggests that one has to look into national legal systems to
identify general principles of law. 349
208. As regards inter-State arbitration, in the Diverted Cargoes case the arbitrator
noted that: “les principes du droit international qui gouvernent l’interprétation des
traités ou accords internationaux ainsi que l’administration des preuves, ont été
dégagés par la doctrine et surtout par la jurisprudence internationale en
correspondance étroite avec les règles d’interprétation des contrats adoptées à
l’intérieur des nations civilisées” [the principles of international law that govern the
interpretation of treaties or international agreements and the taking of evidence have
been identified in doctrine and, in particular, in international jurisprudence, in close
correspondence with the rules adopted by civilized nations with regard to the
interpretation of contracts.]. 350 In connection with this, the tribunal made reference to
__________________
346
Corfu Channel (footnote 214 above), p. 18.
347
Barcelona Traction (footnote 217 above), p. 37, para. 50. See also pp. 39–40, para. 56.
348
South West Africa (footnote 221 above), p. 47, para. 88.
349
According to Gaja, “[i]n this passage the Court implied that a principle that is common to
municipal laws is not automatically transposed into international law ”. See Gaja, “General
principles in the jurisprudence of the ICJ” (footnote 186 above), p. 38.
350
Diverted Cargoes (footnote 230 above), p. 70.

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principles of interpretation (such as good faith and effet utile) and of burden of
proof. 351
209. In the Lighthouses Arbitration, the Tribunal considered, with respect to an
argument of non-transmission of debts arising out of torts advanced by Greece, that:
Si cet argument formulait en vérité un principe général de droit, il devrait
également jouer et au même titre dans le droit civil, mais il est loin d ’en être
ainsi. Bien au contraire, les dettes délictuelles de personnes privées, qui
présenteraient exactement le même caractère « hautement personnel », passent
généralement aux héritiers. Ce n’est pas à dire que les principes de droit privé
soient applicables comme tels en matière de succession d ’Etats, mais seulement
que le seul argument qui soit quelquefois invoqué pour nier la transmission de
dettes délictuelles n’a pas de valeur. 352
[If this argument truly formulated a general principle of law, it would have to
operate as such under civil law, but this is hardly the case. On the contrary, the
criminal debts of private individuals, which would appear to be of exactly the
same ‘highly personal’ nature, are generally transferred to heirs. This is not to
say that the principles of private law are applicable as such to matters
concerning the succession of States, but only that the sole argument that is
sometimes invoked to deny the transmission of criminal debts is invalid.]
210. In the Argentine-Chile Frontier case, the Tribunal applied the principle of
estoppel and made reference to its relationship to national legal systems. Referring to
the case concerning the Temple of Preah Vihear, it stated that:
there is in international law a principle, which is moreover a principle of
substantive law and not just a technical rule of evidence, according to which “a
State party to an international litigation is bound by its previous acts or attitude
when they are in contradiction with its claims in the litigation” … This principle
is designated by a number of different terms, of which “estoppel” and
“preclusion” are the most common. But it is also clear that these terms are not
to be understood in quite the same sense as they are in municipal law. 353
A similar conclusion was reached by the Tribunal in the Chagos Marine
Protected Area case. 354
211. In the Abyei Arbitration between Sudan and Sudan People’s Liberation
Movement/Army, concerning whether the experts of the Abyei Boundaries
Commission exceeded their mandate under the Comprehensive Peace Agreement
between the parties, general principles applicable in national legal systems were also
considered. The arbitral agreement expressly required the tribunal to apply “general
principles of law and practices” (art. 3). The Tribunal first determined that:
Given the paucity of authority on what “excess of mandate” concretely
represents in law, the Tribunal agrees that principles of review applicable in
public international law and national legal systems, insofar as the latter ’s
practices are commonly shared, may be relevant as “general principles of law
and practices” to its Article 2(a) inquiry. 355

__________________
351
Ibid.
352
Affaire relative à la concession des phares de l’Empire ottoman (footnote 231 above), p. 199.
353
Argentine-Chile Frontier Case (footnote 232 above), p. 164.
354
Chagos Marine Protected Area (footnote 236 above), pp. 542–544, paras. 435–438.
355
Abyei Arbitration (footnote 235 above), p. 299, para. 401.

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212. The Tribunal then analysed the process of judicial review in relation to
administrative bodies in national legal systems, 356 as well as in public international
law. 357
213. International criminal tribunals have also had the opportunity to make reference
to or apply general principles of law derived from national legal systems. In a
judgment of 13 July 2006, for example, the Appeals Chamber of the International
Criminal Court decided an appeal by the Prosecution regarding an “extraordinary
review”, not envisaged in the Statute or the Rules of Procedure and Evidence of the
Court, of a decision by a Pre-Trial Chamber. 358 In the Prosecution’s view, “the
absence of mechanism for review of negative decisions under consideration cannot
be regarded as anything other than a lacuna in the law. As such, it must be remedied
by the general principles of law finding application in such a situation provided for
in the instant case by article 21 (1) (c) of the Statute”. 359
214. The Appeals Chamber considered that article 21, paragraph 1 ( c), of the Rome
Statute seeks to incorporate general principles of law derived from national laws of
legal systems of the world as a source of law. 360 It then analysed the arguments
presented by the Prosecution regarding the reviewability of decisions disallowing an
appeal in various domestic legal systems, 361 and concluded that “nothing in the nature
of a general principle of law exists or is universally adopted entailing the review of
decisions of hierarchically subordinate courts disallowing or not permitting an
appeal”. 362
215. The International Tribunal for the Former Yugoslavia has relied more often on
general principles of law derived from national legal systems. In the Furundžija case,
for example, a Trial Chamber, after noting that “[n]o definition of rape can be found
in international law”, 363 sought to find indications as regards a possible definition in
treaties and in the case law of other international criminal tribunals. 364 After this, it
stated that:
no elements other than those emphasised may be drawn from international treaty
or customary law, nor is resort to general principles of international criminal
law or to general principles of international law of any avail. The Trial Chamber
therefore considers that, to arrive at an accurate definition of rape based on the
criminal law principle of specificity (Bestimmtheitgrundsatz, also referred to by
the maxim “nullum crimen sine lege stricta”), it is necessary to look for
principles of criminal law common to the major legal systems of the world.
These principles may be derived, with all due caution, from national laws.
… Whenever international criminal rules do not define a notion of criminal law,
reliance upon national legislation is justified, subject to the following
conditions: (i) unless indicated by an international rule, reference should not be
made to one national legal system only, say that of common-law or that of civil-
law States. Rather, international courts must draw upon the general concepts
and legal institutions common to all the major legal systems of the world. This
presupposes a process of identification of the common denominators in these
__________________
356
Ibid., pp. 299–300, para. 402. The tribunal analysed the practice of the United States, the United
Kingdom, and “certain continental European legal systems”.
357
Ibid., p. 300, paras. 403–404.
358
Situation in the Democratic Republic of the Congo , Judgment (footnote 239 above), para. 3.
359
Ibid., para. 22.
360
Ibid., para. 24.
361
Ibid., paras. 26–31.
362
Ibid., para. 32.
363
Prosecutor v. Furundžija (footnote 240 above), para. 175.
364
Ibid., paras. 175–176.

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legal systems so as to pinpoint the basic notions they share; (ii) since
“international trials exhibit a number of features that differentiate them from
national criminal proceedings”, account must be taken of the specificity of
international criminal proceedings when utilising national law notions. In this
way a mechanical importation or transposition from national law into
international criminal proceedings is avoided, as well as the attendant
distortions of the unique traits of such proceedings. 365
216. After assessing the national legal systems of various States, the Trial Chamber
was able to establish certain elements of the definition of rape. 366
217. In the Kunarac case, another Trial Chamber relied on general principles of law
to widen the definition of rape set out in the Furundžija case, which it found to be
“appropriate to the circumstances of that case”, but “more narrowly stated than is
required by international law”. 367 It stated as follows:
the identification of the relevant international law on the nature of the
circumstances in which the defined acts of sexual penetration will constitute
rape is assisted, in the absence of customary or conventional international law
on the subject, by reference to the general principles of law common to the major
national legal systems of the world. The value of these sources is that they may
disclose “general concepts and legal institutions” which, if common to a broad
spectrum of national legal systems, disclose an international approach to a legal
question which may be considered as an appropriate indicator of the
international law on the subject. In considering these national legal systems the
Trial Chamber does not conduct a survey of the major legal systems of the world
in order to identify a specific legal provision which is adopted by a majority of
legal systems but to consider, from an examination of national systems
generally, whether it is possible to identify certain basic principles, or in the
words of the Furundžija judgement, “common denominators”, in those legal
systems which embody the principles which must be adopted in the international
context. 368
218. The Chamber then went on to analyse the national legal systems of several
States, 369 and concluded, inter alia, that “[t]he basic principle which is truly common
to these legal systems is that serious violations of sexual autonomy are to be
penalised”. 370
219. In the Čelebići case, the Appeals Chamber of the Tribunal upheld the reasoning
of a Trial Chamber with respect to the principle of legality. The Trial Chamber had
found that:
It is undeniable that acts such as murder, torture, rape and inhuman treatment
are criminal according to “general principles of law” recognised by all legal
systems. Hence the caveat contained in Article 15, paragraph 2, of the
[International Covenant on Civil and Political Rights] should be taken into
account when considering the application of the principle of nullum crimen sine
lege in the present case. The purpose of this principle is to prevent the
prosecution and punishment of an individual for acts which he reasonably
believed to be lawful at the time of their commission. It strains credibility to
contend that the accused would not recognise the criminal nature of the acts
__________________
365
Ibid., paras. 177–180.
366
Ibid., para. 181. But see also paras. 182–186 (discussed in the next section below).
367
Prosecutor v. Kunarac et al. (footnote 240 above), para. 438.
368
Ibid., para. 439.
369
Ibid., paras. 443–456.
370
Ibid., para. 457.

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alleged in the Indictment. The fact that they could not foresee the creation of an
International Tribunal which would be the forum for prosecution is of no
consequence. 371
220. The Inter-American Court of Human Rights, in the Aloeboetoe et al. case, was
called upon to determine who were the successors of a person for purposes of
reparation. The Court made express reference to Article 38, paragraph 1 (c), of the
Statute of the International Court of Justice, and determined who were such
successors relying on the “most legal systems”. 372
221. In investor-State dispute settlement, references to general principles of law
derived from national legal systems can be found, for example, in Inceysa v.
El Salvador, where the arbitral tribunal maintained that “in general, [general
principles of law] have been understood as general rules on which there is
international consensus to consider them as universal standards and rules of conduct
that must always be applied and which, in the opinion of important commentators,
are rules of law on which the legal systems of the States are based ”. 373 In El Paso v.
Argentina, the tribunal noted that general principles of law are “rules largely applied
in foro domestico, in private or public, substantive or procedural matters, provided
that, after adaptation, they are suitable for application on the level of publi c
international law”. 374 It then considered:
[t]hat there is a general principle on the preclusion of wrongfulness in certain
situations can be hardly doubted, as is confirmed by the [International Institute
for the Unification of Private Law] Principles on International Commercial
Contracts, a sort of international restatement of the law of contracts reflecting
rules and principles applied by the majority of national legal systems. 375
222. In Sea-Land Service v. Iran, the Iran-United States Claims Tribunal found that
unjust enrichment “is codified or judicially recognised in the great majority of the
municipal legal systems of the world, and is widely accepted as having been
assimilated into the catalogue of general principles of law available to be applied by
international tribunals”. 376 In another case, the Tribunal found that “[the] concept of
changed circumstances … has in its basic form been incorporated into so many legal
systems that it may be regarded as a general principle of law; it has also found widel y
recognized expression in article 62 of the Vienna Convention on the Law of
Treaties”. 377
223. The examples mentioned above clearly show that general principles of law may
be derived from national legal systems. While a precise number of national legal
systems in which a principle must exist is not indicated, terms such as “great majority
of the municipal legal systems of the world”, “majority of national legal systems”,

__________________
371
Prosecutor v. Mucić et al. (footnote 240 above), paras. 179–180. See also Prosecutor v.
Kupreškić et al. (footnote 240 above), paras. 677, 680–695; Prosecutor v. Drazen Erdemović,
Judgment of 29 November 1996 (IT-96-22-T), paras. 19 and 31.
372
Aloeboetoe et al. v. Suriname (footnote 256 above), paras. 61–62.
373
Inceysa Vallisoletana S.L. v. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award of
2 August 2006, para. 227.
374
El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15,
Award of 31 October 2011, para. 622.
375
Ibid., para. 623. See also Total v. Argentina (footnote 246 above), paras. 128–130; Toto
Costruzioni v. Lebanon (footnote 246 above), para. 166.
376
Sea-Land Service v. Iran (footnote 247 above), p. 168.
377
Questech, Inc. v. Iran, Award No. 191-59-1 (20 September 1985), IUSCTR, vol. 9, p. 107, at
p. 122. See also Rockwell International Systems, Inc. v. Iran, Award No. 438-430-1 (5 September
1989), IUSCTR, vol. 23, p. 171, para. 92; Isaiah v. Bank Mellat, Award No. 35-219-2 (30 March
1983), IUSCTR, vol. 2, p. 237.

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“majority of legislations”, and “principal legal systems of the world” have been
employed.
224. In some cases, a comparative survey of national legal systems was expressly
conducted for purposes of identifying the general principle of law in question. In this
regard, some authors have suggested that, when such a survey is not expressly
conducted, it may be the case that the identification of principles of law common to
national legal systems by courts and tribunals is done “implicitly”, “spontaneously”
or “intuitively”. 378
225. The existence of a principle in a majority of national legal systems alone,
however, is not sufficient for that principle to become a general principle of law in
the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice. As mentioned in the previous section, it is generally accepted in the literature
that such a principle must additionally be “transposed” to the international legal
system. 379 In the oft-cited words of Judge McNair:
International law has recruited and continues to recruit many of its rules and
institutions from private systems of law. Article 38 (1) (c) of the Statute of the
Court bears witness that this process is still active … The way in which
international law borrows from this source is not by means of importing private
law institutions “lock, stock and barrel”, ready-made and fully equipped with a
set of rules. It would be difficult to reconcile such a process with the application
of “the general principles of law”. In my opinion, the true view of the duty of
international tribunals in this matter is to regard any feat ures or terminology
which are reminiscent of the rules and institutions of private law as an indication
of policy and principles rather than as directly importing these rules and
institutions. 380
226. A similar view was expressed by Judge Simma. When considering whether the
exceptio non adimpleti contractus may constitute a general principle of law in the
sense of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice,
he referred to “the transferability of such a concept developed in foro domestico to
the international legal plane, respectively the amendments that it will have to undergo
in order for such a general principle to play a constructive role also at the international
level”. 381 It has also been suggested that general principles of law are “a body of
international law the content of which has been influenced by domestic law but which
is still its own creation”, 382 and that:
Should the [World] Court find that there is convergence i n the relevant aspects
of municipal laws, an additional test should concern the compatibility of the
__________________
378
With respect to the International Court of Justice in particular, this has been justified by
reference to Article 9 of its Statute, which requires the composition of the Court to represent “the
main forms of civilization” and “the principal legal systems of the world”. See, for example,
Pellet and Müller, “Article 38” (footnote 13 above), p. 930; Bogdan, “General principles of law
and the problem of lacunae in the law of nations” (footnote 13 above), p. 50; Waldock, “General
course on public international law” (footnote 113 above), p. 67; Virally, “The sources of
international law” (footnote 317 above), p. 146. On the question of using a comparative law
method for the identification of general principles of law, see: J. Ellis, “General principles and
comparative law”, European Journal of International Law, vol. 22 (2011), pp. 949–971.
379
See para. 169 above.
380
International status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 128,
Separate Opinion of Judge McNair, at p. 148. See also para. 169 above.
381
Application of the Interim Accord of 13 September 1995 (the former Yugos lav Republic of
Macedonia v. Greece), (footnote 223 above), Separate Opinion of Judge Simma, para. 13.
382
J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford, Oxford
University Press, 2012), p. 35. He also suggests that an international tribunal “chooses, edits, and
adapts elements from other developed systems” (ibid.).

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principle emerging from municipal laws with the framework of the principles
and rules of international law within which the principle would have to be
applied. 383
227. Some of the practice referred to in the preceding paragraphs confirms, with
important nuances, that a further process of transposition or a test of applicability at
the international law level is required for a principle found in national legal systems
to become a general principle of law in the sense of Article 38, paragraph 1 ( c), of the
Statute of the International Court of Justice. 384 In the Certain Property case, for
example, Liechtenstein advanced that a principle common to national legal sys tems
must be “transposable” to international law, and explained, inter alia, that there is “no
incompatibility between the unjust enrichment principle and public international law ”
and that it “is received in public international law”. 385 In the case concerning
Questions relating to the Seizure and Detention of Certain Documents and Data ,
Australia considered that principles that exist within national legal systems have to
be “appropriately adapted to the international law sphere to avoid ‘distortion’”. 386
Similarly, the German Federal Constitutional Court noted that principles that exist
within national legal systems must be “transposable to inter-State relations”. 387
228. The International Court of Justice, in the Barcelona Traction case, determined
that it cannot “modify” nor “deform” principles that exist within national legal
systems. 388 Two of the arbitral tribunals mentioned above considered, in contrast, that
the principle of estoppel is not to be understood in exactly the same sense as it is in
domestic legal systems. 389 Furthermore, the International Tribunal for the Former
Yugoslavia noted that “a mechanical importation or transposition” of principles that
exist within national legal systems must be avoided. 390 Finally, the Iran-United States
Claims Tribunal considered that a principle that exists within national legal systems
must be “widely accepted as having been assimilated into the catalogue of general
principles of law available to be applied by international Tribunals ”. 391
229. The key question that needs to be addressed is how to determine that a principle
that is common to national legal systems is applicable at the international level. This
is an issue that requires careful reflection and will be analysed in a future report
addressing the identification of general principles of law.
230. In the light of the above, it can be concluded that one of the categories of general
principles of law within the scope of Article 38, paragraph 1 ( c), of the Statute of the
International Court of Justice is general principles of law derived from the national
legal systems of States, to the extent that principles common to a majority of those
legal systems can be identified.

__________________
383
Gaja, “General principles in the jurisprudence of the ICJ” (footnote 186 above), p. 40.
384
The idea that a principle common to national legal systems cannot be applied in international law
without further consideration had in fact already been expressed even before the Statute of the
Permanent Court of Justice was adopted. See in particular the North Atlantic Coast Fisheries
case (para. 86 above), where the arbitral tribunal considered that the notion of ‘servitude’ would
not suit inter-State relations.
385
Certain Property (footnote 225 above), Memorial of Liechtenstein, paras. 6.20–6.21.
386
See para. 197 above.
387
See para. 200 above.
388
See para. 205 above.
389
See para. 210 above.
390
See para. 215 above.
391
See para. 222 above.

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B. General principles of law formed within the international

legal system392

231. The second category of general principles of law relates to those principles that
do not find their origins in the national legal systems of States, but rather in the
international legal system itself. Like the category addressed in the previous section,
the existence of general principles of law formed within the international legal system
also find support in practice and in the literature.
232. This category of general principles of law has been justified on various bases.
As mentioned above, it has been suggested in the literature that the ordinary meaning
of Article 38, paragraph 1 (c), of the Statute of the International Court of Justice does
not exclude the existence of general principles of law that arise from the international
legal system. 393 Furthermore, assuming that the raison d’être and purpose of
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice is to
fill gaps in conventional and customary international law, one author has argued that
“[t]he framers of that paragraph must be deemed to have by implication assented to
the use of general principles of international law for that same purpose, for it can
hardly be believed that they would have permitted the filling of gaps … with
principles of national law, but not with those of international law”. 394
233. An important question that is sometimes discussed in the literature is the
relationship between general principles of law formed within the international legal
system and customary international law. It has been suggested, for inst ance, that the
general principles of law falling under this category are formed through a process of
“express articulation of principles in the first instance, ab initio or progressively being
‘accepted and recognized’ as binding … by the ‘international community of States as
a whole’”. 395 According to this view, this process does not immediately lead to the
emergence of rules of customary international law but of general principles of law in
the sense of Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice. 396 Other authors, in contrast, consider that general principles of law formed

__________________
392
This category is also sometimes referred to as “general principles of international law”, “general
principles of law derived from the specific nature of the international community ” or “general
principles specific to international law”.
393
Lammers, “General principles of law recognized by civilized nations” (footnote 13 above), p. 67.
394
Ibid. Siorat, who saw Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice as relating to the “power of systematization” of the judge through analogy, considered
that “[l]’admission expresse de l’analogie avec des règles du droit interne entraîne a fortiori la
reconnaissance tacite de l’analogie avec des règles du droit international … Qui peut le plus peut
le moins: permettre formellement à la Cour de fonder un raisonnement analogique sur des règles
d’un autre système juridique que celui dont elle fait partie, c ’est aussi l’autoriser implicitement à
le fonder sur les règles du droit international, conventionnel et coutumier, qu ’elle a pour tâche
première d’appliquer” [expressly allowing recourse to analogy with the rules of national law
entails a fortiori a tacit recognition of analogy with the rules of international law … Those with
the power to do more have the power to do less: officially allowing the Court to reason
analogically on the basis of the rules of a legal system other than the one to which it belongs also,
by implication, authorizes it to base its reasoning on the rules of international, conventional and
customary law, the application of which is its primary task] (L. Siorat, Le problème des lacunes
en droit international (Paris, Librairie générale de droit et de jurisprudence, 1958) p. 286).
395
See B. Simma and P. Alston, “The sources of human rights law: custom, jus cogens, and general
principles”, Australian Year Book of International Law, vol. 12 (1989), pp. 82–108, at p. 104,
citing a report of the American branch of the International Law Association entitled “The role of
State practice in the formation of customary and jus cogens norms of international law ”
(19 January 1989).
396
Ibid.

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within the international legal system are not distinguishable from rules of
conventional or customary international law. 397
234. As a category of general principles of law that can fall within Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice, general principles
of law formed within the international legal system are also subject to the requirement
of recognition. As mentioned above, it has been suggested that such recognition could
take place by deduction or abstraction from existing rules of conventional and
customary international law, or through acts of international organizations, such as
resolutions of the General Assembly, showing the consensus of States on specific
matters. 398 In the context of human rights law, two authors have described the process
of determining the existence of general principles arising from principles formed
within the international legal system as “a decidedly consensual process, giving ‘a
sufficient expression in legal form’ to the underlying humanitarian considerations”. 399
235. The existence of a category of general principles of law that find their origin in
the international legal system is corroborated by the practice of States and the
decisions of international courts and tribunals. A few traits characterize the examples
that are given below. First, reference is made to “principles” (sometimes using
language close to Article 38, paragraph 1 (c)) that form part of international law but
which do not appear to be rules of conventional or customary international law.
Second, in general, no reference is made to principles common to national legal
systems to identify such principles. Third, the existence of such principles appears to
have been determined on various bases, such as by having recourse to international
materials and by identifying principles underlying other rules of international law. In
particular, the recognition by States of those principles seems to have been evidenced,
inter alia, in the travaux préparatoires of treaties, in treaty provisions, as well as in
the recognition expressed in General Assembly resolutions, and in declarations.
236. In the Corfu Channel case, for example, the International Court of Justice
considered that:
[t]he obligations incumbent upon the Albanian authorities consisted in
notifying, for the benefit of shipping in general, the existence of a minefield in
Albanian territorial waters and in warning the approaching British warships of
the imminent danger to which the minefield exposed them. Such obligations are
based, not on the Hague Convention of 1907, No. VIII, which is applicable in
time of war, but on certain general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than in
war; the principle of the freedom of maritime communication; and every State ’s
obligation not to allow knowingly its territory to be used for acts contrary to the
rights of other States. 400
__________________
397
Yee, “Article 38 of the ICJ Statute and applicable law …” (footnote 280 above), p. 490;
Raimondo, General Principles of Law … (footnote 13 above), p. 42; Degan, Sources of
International Law (footnote 138 above), p. 83; Barberis, “Los Principios Generales de Derecho
como Fuente del Derecho Internacional” (footnote 13 above), pp. 24–26; Bogdan, “General
principles of law and the problem of lacunae in the law of nations ” (footnote 13 above), p. 42;
Blondel, “Les principes généraux de droit devant la Cour permanente de Justice internationale et
la Cour internationale de Justice” (footnote 13 above), p. 204. Cf. Lammers, “General principles
of law recognized by civilized nations” (footnote 13 above), pp. 67–69.
398
See paras. 171–173 above.
399
Simma and Alston, “The sources of human rights law: custom, jus cogens, and general
principles” (footnote 395 above), p. 107.
400
Corfu Channel (footnote 214 above), p. 22. See also Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) (footnote 223 above), p. 112,
para. 215; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, p. 226, at p. 257, para. 79.

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237. In the advisory opinion on Reservations to the Convention on Genocide, the

International Court of Justice stated as follows:
The origins of the [Genocide] Convention show that it was the intention of the
United Nations to condemn and punish genocide as ‘a crime under international
law’ involving a denial of the right of existence of entire human groups, a denial
which shocks the conscience of mankind and results in great losses to humanity,
and which is contrary to moral law and to the spirit and aims of the United
Nations (Resolution 96 (I) of the General Assembly, December 11th 1946). The
first consequence arising from this conception is that the principles underlying
the Convention are principles which are recognized by civilized nations as
binding on States, even without any conventional obligation. 401
238. The statement by the Court that the principles underlying the Genocide
Convention are “principles which are recognized by civilized nations” binding on
States, even without any conventional obligation, seems to point directly to
Article 38, paragraph 1 (c), of the Statute. 402 There is no reference to principles
common to national legal systems. It appears that the Court “found the basis for the
existence of a principle in the recognition by States, noting that such recognition was
expressed in resolution 96 (I) of the General Assembly, which marked ‘the intention
of the United Nations to condemn and punish genocide as a ‘crime under international
law’”. 403
239. In the Right of Passage case, Portugal argued that its claimed right of passage
was based, in addition to a general principle of law derived from national legal
systems, on “general principles inherent to the international legal order ”. It explained
that these are “des principes généraux qui sont propres à l’ordre juridique
international et dont il serait donc vain de chercher la manifestation dans les ordres
juridiques internes” [general principles that are inherent in the international legal
system and, in consequence, are not to be found in national legal systems]. 404 As
examples of such principles, Portugal referred to a right of States to existence, an
obligation to respect other States’ sovereignty and an obligation not to allow one’s
territory be used for acts contrary to the rights o f other States. 405
240. In the South West Africa case, Ethiopia and Liberia claimed that the policy of
apartheid was “repugnant to the generally accepted political and moral standards of
the international community, as well as violative of norms, as accepted by
international custom and as reflected in the general principles of law universally
recognized by civilized nations”. 406 They referred to a variety of materials, including
national and international jurisprudence, conventions, resolutions of the General
Assembly and resolutions of the Security Council in support of their submission that
“[t]he ‘international custom’ outlawing discrimination and separation … together
with the wide introduction of such a norm into ‘the general principles of law
__________________
401
Reservations to the Convention on Genocide (footnote 215 above), p. 23.
402
W. Schabas, “Genocide Convention, Reservations (Advisory Opinion) ”, Max Planck
Encyclopedia of Public International Law (2010), para. 10 (“the language used clearly alludes to
Art. 38 (1) (c) rather than Art. 38 (1) (b) ICJ Statute, and therefore refers to general principles of
law”). Cf. Wolfrum, “General international law (principles, rules, and standards)” (footnote 199
above), para. 15.
403
Gaja, “General principles in the jurisprudence of the ICJ ” (footnote 186 above), p. 41.
404
Right of Passage (footnote 221 above), Reply of Portugal, para. 335.
405
Ibid., para. 336. At the same time, Portugal considered that since India did not deny the existence
of those principles in general, it was unnecessary to determine whether they fell under
paragraph 1 (b) or 1 (c) of Article 38 of the Statute of the Inter national Court of Justice (ibid.).
See also the Preliminary Objections of India, paras. 190–196; Counter-Memorial of India,
paras. 295–297; Rejoinder of India, paras. 570–577.
406
South West Africa (footnote 221 above), Reply of Ethiopia and Liberia, p. 271.

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recognized by civilized nations,’ warrants a determination that the policy of apartheid

… is a violation of international law”. 407
241. In the same case, Judge Tanaka considered that the recognition of the principle
of equality before the law was not limited to its existence in foro domestico, but could
be realized at the international level:
The manifestation of the recognition of this principle does not need to be limited
to the act of legislation as indicated above; it may include the attitude of
delegations of member States in cases of participation in resolutions, declarations,
etc., against racial discrimination adopted by the organs of the League of
Nations, the United Nations and other organizations which … constitute an
important element in the generation of customary international law. 408
242. In the Frontier Dispute (Burkina Faso/Mali) case, the Court referred to the
principle of uti possidetis as a “general principle, which is logically connected with
the phenomenon of the obtaining of independence, wherever it occurs ”. 409 The Court
further noted that “[t]he fact that the new African States have respected the
administrative boundaries and frontiers established by the colonial powers must be
seen not as a mere practice contributing to the gradual emergence of a principle of
customary international law, limited in its impact to the African continent as it had
previously been to Spanish America, but as the application in Africa of a rule of
general scope”. 410 According to the Court, resolution 16 (1) of the Organization of
African Union (1964) “deliberately defined and stressed the principle of uti possidetis
juris contained only in an implicit sense in the Charter of [the] organization”. 411
243. The Court has applied the principle of uti possidetis in later cases, 412 but it has
not clarified its exact source. Some States seem to consider the principle of uti
possidetis to be a general principle of law in the sense of Article 38, paragraph 1 (c),
of the Statute of the International Court of Justice. In the Land, Island and Maritime
Frontier Dispute, for example, El Salvador argued that the principle is a rule of
customary international law as well as general principle of law. 413 Similarly, the
Constitutional Court of Slovenia considered that the uti possidetis principle, as
developed during the gaining of independence of American and African States, is a
“generally recognized principle of international law and is, as such, also binding on
Slovenia”. 414 The Arbitration Commission of the International Conference on the
Former Yugoslavia, referring, inter alia, to the Declaration on Principles of
International Law concerning Friendly Relations and Co -operation among States in
accordance with the Charter of the United Nations, considered that “[u]ti possidetis,
though initially applied in settling decolonization issues in America and Africa, is
today recognized as a general principle”. 415 More recently, the arbitral tribunal in the

__________________
407
Ibid., p. 519.
408
South West Africa (footnote 221 above), Dissenting Opinion of Judge Tanaka, p. 300.
409
Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 554, at p. 565, para. 20.
410
Ibid., para. 21.
411
Ibid., at pp. 565–566, para. 22.
412
See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659, at p. 706, para. 151; Frontier
Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 90, at p. 108, para. 23; Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening, I.C.J. Reports
1992, p. 350, at pp. 386–387, paras. 40–42.
413
Land, Island and Maritime Frontier Dispute (see previous footnote), Memorial of El Salvador,
para. 3.4.
414
Arbitration between the Croatia and Slovenia (footnote 237 above), para. 260 and footnote 396.
415
Conference of Yugoslavia Arbitration Commission, Opinion No. 3 (11 January 1992),
International Legal Materials, vol. 31 (1992), pp. 1494–1526, at p. 1500.

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territorial and maritime dispute between Croatia and Slovenia referred to uti
possidetis as a “well-established principle of international law”. 416
244. In the Legality of the Threat or Use of Nuclear Weapons case, Nauru considered
that:
[t]he Martens clause seems to require the application of general principles of
law. It speaks of the laws of humanity and the dictates of public conscience.
General principles of law recognised by civilised nations would ther efore seem
to embody the principles of humanity and the public conscience. Inhuman
weapons and weapons which offend the public conscience are therefore
prohibited. 417
In its argument, Nauru supported the existence of the invoked general principles
of law (the principles of humanity and the public conscience) not by the
existence of principles common to a majority of national legal systems, but by
their recognition by States through the Martens Clause. Sweden similarly
referred to “general, fundamental legal principles, recognized by civilized
nations”, including those “expressed … in the Declaration made by the 1972
[United Nations] Conference on the Human Environment” and those stipulated
in the Hague Conventions. 418
245. In the Furundžija case, the Trial Chamber of the International Tribunal for the
Former Yugoslavia, after noting that no clear answer as regards the definition of rape
could be found in conventional and customary international law, nor in a comparative
analysis of national legal systems due to lack of uniformity, decided that it had to
“establish whether an appropriate solution can be reached by resorting to the general
principles of international criminal law or, if such principles are of no avail, to the
general principles of international law”. 419 In this regard, the Chamber noted:
The general principle of respect for human dignity is the basic underpinning and
indeed the very raison d’être of international humanitarian law and human
rights law; indeed in modern times it has become of such para mount importance
as to permeate the whole body of international law. This principle is intended to
shield human beings from outrages upon their personal dignity, whether such
outrages are carried out by unlawfully attacking the body or by humiliating and
debasing the honour, the self-respect or the mental well being of a person. It is
consonant with this principle that such an extremely serious sexual outrage as
forced oral penetration should be classified as rape. 420
246. In this case, the Tribunal seems to have considered that the recognition by States
of the general principle of respect for human dignity was realized by virtue of the fact
that this principle is the “basic underpinning” or “raison d’être” of international
humanitarian law and human rights law.
247. In the Kupreškić case, another Trial Chamber of the International Tribunal for
the Former Yugoslavia considered that, since it could not find any “general principle
of law common to all major legal systems of the world ”, it had to “endeavour to look

__________________
416
Arbitration between Croatia and Slovenia (footnote 237 above), para. 256.
417
Legality of the Threat or Use of Nuclear Weapons (footnote 400 above), Response to
Submissions of Other States by Nauru, p. 13.
418
Ibid., Note Verbale dated 20 June 1995 from the Embassy of Sweden, together with Written
Statement of the Government of Sweden, pp. 4–5.
419
Prosecutor v. Furundžija (footnote 240 above), para. 182.
420
Ibid., para. 183.

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for a general principle of law consonant with the fundamental features and the basic
requirements of international criminal justice”. 421
248. In the Nürnberg trials, the Tribunal had recourse to certain principles of criminal
law to render its decisions. 422 Subsequently, the General Assembly affirmed in
resolution 95 (I) “the principles of international law recognized by the Charter of the
Nürnberg Tribunal and in the judgment of the Tribunal ”. 423
249. Moreover, as mentioned in Part Three above, the Nürnberg principles were
reaffirmed as “general principles of law recognized by the community of nations ” and
“general principles of law recognised by civilised nations ” in the International
Covenant on Civil and Political Rights and the European Convention on Human
Rights respectively. 424
250. In some cases, general principles of law that are formed through an interaction
between the international legal system and national legal systems have been invoked.
For instance, in the EC-Hormones case, the European Union argued that:
In case the Appellate Body does not determine that such a customary rule [on
the precautionary principle] has already been firmly established, it is submitted
that, at any rate, the precautionary principle is a general principle of law,
recognized both in domestic and international law. General principles of law
express principles articulated in domestic as well as international law not
necessarily fulfilling the tests of practice and opinio juris, but expressing
common values inherent in human life and society and being now generally
accepted by all States and the international community. It is explicitly stated in
Article 130r(2) of the EC Treaty and recognized by the international community,
e.g., in the famous Rio Declaration as well as in numerous international
conventions and other instruments, and in national jurisdictions. 425
251. Furthermore, in its oral submissions, the European Union was of the view that:
the precautionary principle is in any case a general principle of law, in the
meaning of Article 38 (1) (c) of the Statute of the International Court of Justice.
These are principles which often emerge as an interaction between international
law, national law and the dictates of reason, common sense or moral
considerations. A series of international and national instruments as well as
pronouncements by courts and expert bodies, attest to the status of the
precautionary principle as a general principle of law. 426
252. On the other hand, the United States considered that the precautionary p rinciple
represents an “approach” rather than a “principle”, 427 and Canada was of the view that
“the ‘precautionary approach’ or ‘concept’ is an emerging principle of law which may
in the future crystallize into one of the ‘general principles of law recognized by
__________________
421
Prosecutor v. Kupreškić et al. (footnote 240 above), para. 738.
422
For instance, when determining that the prosecution of international crimes was not in conflict
with the principle of legality, the Tribunal referred to general principles of law. In particular, it
stated that “[t]he law of war is to be found not only in treaties, but in the customs and practices
of states which gradually obtained universal recognition, and from the general principles of
justice applied by jurists and practised by military courts”. See International Military Tribunal
(Nürnberg), Judgment of 1 October 1946, American Journal of International Law, vol. 41
(1947), pp. 172–333, at p. 219.
423
General Assembly resolution 95 (I) of 11 December 1946, preamble.
424
See para. 121 above.
425
EC-Measures concerning meat and meat products (Hormones) (AB-1997-4), Appeal of the
European Communities, 6 October 1997, para. 91.
426
Ibid., Oral Submissions of the European Communities, 4 November 1997, para. 18.
427
WTO Appellate Body Report, EC-Measures Concerning Meat and Meat Products (Hormones),
WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998, para. 122.

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civilized nations’ within the meaning of Article 38(1)(c) of the [Statute of the
International Court of Justice]”. 428 The Appellate Body did not make a decision on
these questions.
253. In the view of the Special Rapporteur, the practice set out in the preceding
paragraphs supports the position that general principles of law in the sense of
Article 38, paragraph 1 (c), of the Statute of the International Court of Justice
comprise not only general principles of law derived from national legal systems, but
also general principles of law formed within the international legal system. The
precise forms which the recognition of this category of general principles of law may
take will be further addressed in a future report by the Special Rapporteur.

“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.”

III. Terminology
254. As pointed out in the section above on methodology, one of the difficulties in
the present topic is identifying the relevant materials for its study. This is so because
both in practice and in the literature terms such as “principle”, “general principle”,
“general principle of law”, “general principle of international law” and “principle of
international law” are often employed indistinctively and without clarification
regarding which source of international law such principles b elong to. This is a
problem of terminology with which the Special Rapporteur has had to deal when
preparing the present report, and which is likely to pose challenges throughout the
work of the Commission on the present topic.
255. In the light of this, the Special Rapporteur considers it useful, for purposes of
clarity, to propose the terminology that the Commission should employ in undertaking
its work on general principles of law.
256. When referring to general principles of law in the sense of Article 3 8,
paragraph 1 (c), of the Statute of the International Court of Justice, the term “general
principles of law” is the most appropriate one, so as to follow closely the wording of
that provision.
257. With respect to the different categories of general principles of law capable of
falling within Article 38, paragraph 1 (c), of the Statute of the International Court of
Justice, the terms “general principles of law derived from national legal systems ” and
“general principles of law formed within the international legal system” have been
employed throughout the present report.
258. As regards the term “civilized nations”, the Special Rapporteur has explained
that it should be avoided in the light of the fundamental principle of sovereign
equality of States, the attitude of States and international courts and tribunals towards
the term “civilized nations” nowadays and the general agreement in the literature that
the term is inappropriate. Thus, the source of international law reflected in Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice should be read as
“the general principles of law recognized by States”.

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428
Ibid.

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Part Five: Future programme of work

259. The Special Rapporteur proposes the following programme for the work of the
Commission in the present topic.
260. In the second report, to be submitted in 2020, the Special Rapporteur will
commence the debate on the functions of general principles of law and their
relationship with other sources of international law.
261. The third report, to be submitted in 2021, will likely be dedicated to the
identification of general principles of law, including the question of the requirement
of recognition. That report may also address the possibility of general principles of
law with a regional or bilateral scope of application.

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Annex
Proposed draft conclusions

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.

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