Murase Comments on General Principles of Law at ILC (2019-)

Murase Comments on General Principles of Law (GPL) at ILC (2019-)

Note: I made comments on the topic of customary international law six times over the years at ILC, which are reproduced below. These are the original manuscripts. They are reproduced in the ILC summary records, which are however shortened versions of the original statements. Footnotes had to be inserted in the body of the text for technical reasons of the blog.

1. Murase Comments on GPL (24 July 2019) (A/CN.4/SR.3489)

I would like to thank the Special Rapporteur for his excellent First Report (A/CN.4/732) on General Principles of Law (GPL). It certainly assures that we are in the good hands of the Special Rapporteur on this extremely interesting but also difficult topic. I also appreciate the oral introduction that the Special Rapporteur gave yesterday.

One of the first books I read in English on international law when I was young was Professor Bin Cheng’s voluminous study on General Principles of Law. (BIN CHENG, THE GENERAL PRINCIPLES OF LAW: AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS (1953)). That was in late 1960s. I was writing for my master’s thesis about concession agreements (or economic development agreements) concluded between States and corporations. There were no bilateral investment treaties (BITs) in those days. Judge Arnold McNair’s article on GPL published in 1958 and Professor Alfred Verdross’ article on economic development agreements published in the same year were most illuminating. (See Lord McNair, Q.C., The General Principles of Law Recognized by Civilized Nations, 33 Brit. Y. B. Int’l L. 1 (1958); Alfred Verdross, Die Sichherung von ausländischen Privatrechten aus Abkommen zur wirtschaftlichen Entwicklung mit Schiedsklauseln[The Acceptance of Foreign Private Rights under Economic Development Agreements with Arbitration Clauses], 18 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 617 (1958).) They said, in essence, that those concession agreements were autonomous lex contractus that are characterized as “quasi-international law agreements,” and that the applicable law was “general principles of law,” which were placed between domestic law and international law as “the third source of law.”

But, of course, there is no such “third source of law” between domestic law and international law. Not surprisingly, my supervisor at the University of Tokyo was very dubious about my thesis, and asked whether it really belonged to the discipline of international law. I knew that I would not have received a doctorate had I pursued this topic. So, I changed topics to the Most-Favored-Nation clause for my doctoral dissertation, which fit perfectly within international law, and I safely passed. Since then, to me, the topic of General Principles of Law has been something quite dangerous to deal with, as it is so uncertain in content and so unsettled in status. I still have the same feeling about it today.

I would like to offer my observation on the three proposed draft conclusions made by the Special Rapporteur in his First Report.

Draft conclusion 1: Scope
“The present draft conclusions concern general principles of law as a source of international law.”

The first question I have is what is meant by “a source of international law”: Is GPL really “a source of international law”? In what sense is the term “source” used here? I regret that there is no explanation of the sources of law in the First Report. The term “source of law” is multivocal, having many meanings. (As early as 1925, P.E. Corbett wrote that we should perhaps get rid of the term “sources,” because of the extreme diversity of its meanings. Percy E. Corbett, The Consent of States and the Sources of the Law of Nations, 6 Brit. Y. B. Int’l L. 20, 30 (1925); SHINYA MURASE, INTERNATIONAL LAWMAKING: SOURCES OF INTERNATIONAL LAW 5-41 (2002) (in Japanese),. 1-19 (2011) (in Chinese).)

It includes: (1) “formal sources” (in what forms does international law exist?), (2) “material sources” (what are the forces that create international law? (See, e.g., CLIVE PARRY, THE SOURCES AND EVIDENCE OF INTERNATIONAL LAW 1-27 (1965); Robert Jennings, What is International Law and How Do We Tell When We See It?, 37 Annuaire Suisse de Droit International 59 (1981); HELMUT COING, GRUNDZÜGE DER RECHTSPHILOSOPHIE [Basic Principles of Legal Philosophy] 280-281 (1969) (referring to “formelle Rechtsquelle” [formal legal source]); CLAUDE DU PASQUIER, INTRODUCTION À LA THÉORIE GENERAL ET À LA PHILOSOPHIE DU DROIT [Introduction to the General Theory and Philosophy of the Law] 70-74, (3d. ed. 1948) (referring to “sources formelles” [formal sources]).

(3) “judicial sources” (what is the applicable law in a judicial settlement?), (WILLIAMS, supra note 5, at 133-135; GEORGE W. KEETON, THE ELEMENTARY PRINCIPLES OF JURISPRUDENCE 73-75 (2d. ed. 1949); ALF ROSS, A TEXTBOOK OF INTERNATIONAL LAW 79-83 (1947)). (4) “historical sources” (what is the historical background that has created international law?) (WILLIAMS, supra note 5, at 133-135.), and (5) “literary sources” (how do we find international law, treaty collections and collections of court decisions, etc.?), (OWEN H. PHILLIPS, A FIRST BOOK ON ENGLISH LAW 77 (2d. ed. 1953)), just to name a few.

Depending on which meaning the term “source” takes, the content of Draft conclusion 1 could be entirely different. If the term means “formal source,” then GPL is to be understood as “international law,” which takes the form of either “conventions” or “customary international law.” This is contrary to Article 38 (1) (c) of the ICJ Statute, because the preceding sub-paragraphs (a) and (b) already provide for conventions and customary international law, and in interpreting (c), we are not supposed to duplicate it with (a) nor (b), in accordance with the rule ensuring “effectiveness” in interpretation (namely, interpretation should be conducted in a meaningful manner).

Thus, the Special Rapporteur’s assumption in paragraph 156 that the “law” in GPL includes international law cannot be sustained. To say that GPL is a source of international law also contradicts Draft conclusion 3 (a), which refers to those principles “derived from national legal systems.” Any attempt to differentiate GPL from customary international law, which Mr. Tladi tried to do in his statement just now will be doomed to fail in my opinion.

Contrary to the static notion of “formal sources,” the idea of “material sources” addresses the dynamic process of lawmaking. So, if the term “source” is used in the sense of “material source,” then Draft conclusion 1 may mean that the GPL can be understood as a means of creating international law. The Special Rapporteur sometimes refers to the “gap filling” function of GPL, which is precisely this aspect of the material source of law.

This question of material sources, however, warrants inquiry from the perspective of the sociology of law concerning extra-legal forces creating international law. (GLANVILLE WILLIAMS, SALMOND ON JURISPRUDENCE 133-35 (11th ed. 1957); ROSCOE POUND, JURISPRUDENCE, VOL. III 379-436 (1959); ALBERT KOCOUREK, AN INTRODUCTION TO THE SCIENCE OF LAW 155-7 (reprt. 1982) (1930); GEORGES SCELLE, PRÉCIS DE DROIT DES GENS [Summary of the Law of Nations], VOL. I 2-3 (1932) (referring to “facteurs extra-juridiques de l’élaboration du droit” [extra-legal factors of the elaboration of the law]); CHARLES DE VISSCHER, THÉORIES ET REALITÉS EN DROIT INTERNATIONAL PUBLIC [Theories and Realities in International Public Law] 169f (2d. ed. 1955);. MAX HUBER, DIE SOZIOLOGISCHEN GRUNDLAGEN DES VÖLKERRECHTS [The Sociological Foundations of International Law] 16-17 (1928)).

The term “source” can be “judicial source,” which means the “applicable law” in a particular judicial procedure. Article 38 of the ICJ Statute enumerates the law applicable in the ICJ proceedings. Each court or tribunal has its own judicial source or applicable law, and evidently, there is no sense in trying to generalize it.

You may recall that, when we discussed the title of the topic at the WG on the Long-term Program of Work two years ago, Mr. Wood suggested the title “GPL as a source of international law.” I expressed concern with this proposal based on the same argument that I just made, and we agreed not to add those words to the title of the topic. I believe that the words should likewise be deleted from Draft conclusion 1, as they are only confusing and question-begging.

I have another concern with Draft conclusion 1: While the Special Rapporteur states in paragraph 15 of the Report that “the starting point for the work of the Commission on this topic should be Article 38(1)(c),” he appears to be a bit ambiguous on whether the present topic is intended to cover only GPL under Article 38(1)(c) of the ICJ Statute, or if it also deals with GPL outside and beyond the ICJ Statute.

Since the Special Rapporteur refers to the similarity of Article 21(1)(b) of the ICC Rome Statute with the ICJ Statute’s GPL provision in paragraph 120 and also other treaty provisions that are not even court statutes as referred to in paragraphs 122-124 of the Report, he may be considering expanding the scope of this project beyond ICJ Article 38(1)(c). It would be safe to confine the scope of the topic to Article 38(1)(c) and similar provisions of other international courts and tribunals, and we should not ambitiously expand the scope, which would make the work on this topic far more difficult.

As I will discuss later in more detail, the role of the competent courts and tribunals is essential for domestic principles to be elevated to GPL, and we should not go beyond the competence of these dispute settlement organs.

Related to the question of scope, I have a question about the function of GPL. The Special Rapporteur states in paragraph 25 of the Report that “they serve to fill gaps in conventional and customary international law, or to avoid findings of a non liquet”. Avoiding non liquet is widely accepted as the function of GPL, whereas “filling gaps” may address a more active role played by the relevant actors than mere avoidance of non liquet by the court, and it needs to be clarified how gaps could be filled by GPL by providing concrete examples.

Based on these considerations, I would propose the following formulation for Draft conclusion1:
“The present draft conclusions concern general principles of law as applied by competent international courts and tribunals.”

Draft conclusion 2: Requirement of recognition
“For a general principle of law to exist, it must be generally recognized by States.”

Regarding Draft conclusion 2 on the recognition of GPL, I would like to offer some of my observations.

First on the “object” of recognition: What is GPL? The Special Rapporteur emphasizes that “general principles of law” makes reference to norms that have a “general” and “fundamental” character (para. 153), but also reminds us that “some general principles of law may not have a ‘general’ and ‘fundamental’ character in the sense described above” (para. 154). I agree that GPL is different from customary international law in its “general” character, and different from jus cogens in its “fundamental” character. In fact, GPL can be specific in its application as we see in the practice of courts and tribunals.

For instance, in the cases concerning nationalization of foreign properties in the 1950s and 60s, courts and tribunals applied GPL relating to private property rights and unjust enrichment. If for instance the institution of private property rights was common to both parties, say, the UK and Iran in the Anglo-Iranian Oil Company case (Anglo-Iranian Oil Co. (U.K. v. Iran), Judgment, 1952 I.C.J. Reports 93 (July 22)), the courts and tribunals had no difficulty in applying it as a general principle. In those days, private property rights were not respected in socialist countries, and therefore it was not a “general” rule but merely a “specific” rule, which was nonetheless accepted as a “common” rule between the parties to a dispute.

Second, on the “means” of recognition (or identification) of GPL, that is, “generally recognized,” I believe it is crucial for the court or tribunal to take an active role in recognizing or identifying GPL, especially when we take into account the function of GPL as a tool for avoiding non liquet. As the Special Rapporteur rightly points out in paragraph 169, GPL come to “exist” by the court’s “transposition.” If the scope of the topic is to be expanded to GPL beyond the competent courts and tribunals, how can this process of transposition be fulfilled? That is the challenge that the Special Rapporteur will face in his Third Report (para. 261).

Thirdly, with regard to the notion of “civilized nations,” or the “subjects” of recognition, the Special Rapporteur states in paragraph 186 of the Report that “the term ‘civilized nations’ in Article 38(1)(c) of the ICJ Statute should be avoided and, in any case, interpreted as referring to States generally” and proposes in Draft conclusion 2 that GPL “must be generally recognized by States.”

I am not sure if we should get rid of the reference to “civilized nations” entirely. “Civilized nations” meant in the 19th and early 20th centuries only those States that were qualified by virtue of adopting a particular type of civilization, based on the Euro-centric view, which is of course no longer tenable. Article 38(1)(c) refers to “civilized nations” in the plural, and I believe it is now interpreted as encompassing the plurality of the types of civilizations.

My friend, Professor Yasuaki Onuma of the University of Tokyo, who unfortunately passed away two years ago, was a longtime advocate of the notion of “trans-civilizational” or “multi-civilizational” law in contemporary international law (YASUAKI ONUMA, A TRANSCIVILIZATIONAL PERSPECTIVE ON INTERNATIONAL LAW (2010).; YASUAKI ONUMA, INTERNATIONAL LAW IN A TRANSCIVILIZATIONAL WORLD (2017). Giving very little value to GPL as a source of law, Onuma did not himself elaborate on the meaning of “civilized nations” in Article 38(1)(c) of the ICJ Statute. Ibid., pp. 178-179.). I must confess that I was not entirely comfortable with this notion when he was alive, but now, I feel closer to his ideas. I wonder if it is possible to reflect this idea of a multi-civilizational approach in our Draft conclusions on GPL.

The following is my suggestion for our Draft conclusion 2:
“A general principle of law must be recognized by States as reflecting by the plurality of civilized nations of the international community and applied as such by international courts and tribunals.”

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.”

As I discussed earlier, as far as the interpretation of Article 38(1)(c) is concerned, there is no way that GPL can be recognized as a part of international law, since sub-paragraphs (a) and (b) already refer to international law, i.e. conventions and customary international law. GPL is therefore only what is “derived from national legal systems.” The principles “formed within the international legal system” are either conventional law or customary law and are not GPL.

It may be necessary to clarify what sort of national law can become GPL. Is it limited to private law principles and procedural law principles? Will it include public law and criminal law principles, or all domestic law principles? On this point, the Special Rapporteur states that it needs “to be further assessed as the topic progresses and taking into account the practice of States and the decisions of international courts and tribunals” (para.158), with which I agree.

As I mentioned, it would not make sense to consider GPL as originating from international law. I would suggest that we delete paragraph (b) entirely. [However, even if, for some reason, paragraph (b) is retained, I would be reluctant to accept the expression “international legal system.” It is questionable if we can characterize international law as a “system” in this context, particularly when we expand the scope of the topic to include the non-adjudicative phases (beyond international courts and tribunals). The “systematicity” is in fact the result of a normative choice to comprehend international law in a systemic way, which can be guaranteed only by courts and tribunals. (For a criticism of the ‘systemic’ understanding of international law, see, for example, JEAN D’ASPREMONT, INTERNATIONAL LAW AS A BELIEF SYSTEM Ch. 1 § 4 (2018).).

In international law, the systemic understanding is tightly connected (“co-constituted”) with the “sources” theory that has been developed under the strong influence of Article 38(1) of the ICJ Statute (Gleider I. Hernandez, Sources and the Systematicity of International Law, in THE OXFORD HANDBOOK ON THE SOURCES OF INTERNATIONAL LAW (Samantha Besson & Jean d’Aspremont eds.,2017). Given this adjudication-centric normative choice, the systematic understanding may be appropriate if we deliberately limit the topic to the realm of Article 38(1) of the ICJ Statute, which typically indicates rules of adjudication.]

Thus, my suggestion on Draft Conclusion 3 would be delete subparagraph B, and it would read as follows:
“General principles of law comprise those derived from national legal systems.”

Regarding the final form of the product, as you are all aware, I am not in favour of the use of “draft conclusions” as suggested by the Special Rapporteur. I am deeply concerned with the proliferation of conclusions in the Commission. As I have said repeatedly in the past, the term “conclusions,” meaning an internal understanding of a study group, does not convey any normative nuance to the outside world. I believe that the most appropriate form for this topic is, at least, “draft guidelines,” if not “draft articles.”

Having forgotten that the ILC is supposed to be an organ to produce “draft articles” (Article 20 of the ILC Statute), the Commission now looks like “a canary that forgot to sing,” as described in a popular children’s song in Japan. Though this song has been sung for more than a century by Japanese school children, its content is quite cruel. The canary that forgot to sing faces severe punishments, and, in the end, he is put in a rowboat alone floating on the moonlight sea (see below), like those poor Somali pirates captured by the Russian navy and put in a rubber boat without navigation equipment! (See, e.g., Pirates Were Let Go to Their Vessel from Released Tanker – Ivanov. ITAR-TASS WORLD SEV., May 18, 2010. (quoting Deputy Prime Minister Sergei Ivanov: “They (pirates) were freed, but without weapons and navigation equipment that were preliminarily confiscated”). I only hope that the ILC will not face such a punishment for having forgotten the song that we should be singing.

I support sending all Draft conclusions to the Drafting Committee. I would like to thank again the Special Rapporteur for his excellent work on this topic.

“A Canary that forgot to sing” (A song for children, composed by SAIJO Yaso, 1918) (The second line is sung by a little girl and the third by her mother.)

“A canary that forgot to sing,
Should we throw him away at the back hill?
No, no, that’s so poor of him.

A canary that forgot to sing,
Should we bury him in the backyard bush?
No, no, that’s so cruel to him.

A canary that forgot to sing,
Should we beat him up with a willow whip?
No, no, that’s so poor of him.

A canary that forgot to sing,
Should we put him on an ivory rowboat with a silver oar
floating on a moonlight sea?
He may then remember the song he forgot.”

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