General Principles Formed within the International Legal System: Theoretical Debates and Practical Ramifications in Light the Work of the ILC

This episode of the Völkerrechtliche Tagesthemen focusses on the work of the International Law Commission (ILC) regarding general principles.

The ILC’s work on general principles of law identified two categories of principles: those stemming from domestic and those stemming from the international legal systems. The latter category relating to general principles stemming from the international legal system were defined in the provisionally adopted conclusions on first reading as follows: “general principles of law that may be formed within the international legal system.”

This category has caused a lot of controversy among scholars, members of the ILC, and states. In the Conclusions adopted at first reading this May 2023 the identification of principles of this category was changed. Whereas the initially proposed draft conclusion with relation to principles formed within the international legal system was worded as follows:
To determine the existence and content of a general principle of law formed within the international legal system, it is necessary to ascertain that:

(a) a principle is widely recognized in treaties and other international instruments;

(b) a principle underlies general rules of conventional or customary international law; or (c) a principle is inherent in the basic features and fundamental requirements of the international legal system.

The current formulation is much more contained in scope but methodologically opaquer:
To determine the existence and content of a general principle of law that may be formed within the international legal system, it is necessary to ascertain that the community of nations has recognized the principle as intrinsic to the international legal system. Paragraph 1 is without prejudice to the question of the possible existence of other general principles of law formed within the international legal system.
This episode will discuss and highlight the practical and theoretical implications of this change, drawing on ICJ case law.