Murase Comments on General Principles of Law (GPL) 16 July 2021

Murase Comments on General Principles of Law

16 July 2021 (A/CN.4?SR 3542)

           I would like to thank the Special Rapporteur, Mr. Vasqez Bermudez,  for the excellent second report on General Principles of Law (GPL, for short). I also thank the Secretariat for the useful memorandum. I have tried to make my intervention this morning to be brief. 

In 2019, we did not have sufficient time to discuss this topic both in the plenary and at the drafting committee, and I am sorry that the Commission has provisionally adopted the draft conclusion 1 on scope in such a haste that, for instance, there was no adequate explanation on the term “sources”, whether it means the formal sources, material sources, judicial sources or any other meaning of sources. I think that the expression “general principles of law as a source of international law” is the cause of confusion which permeates into the second report, as I was afraid two years ago (see Annex below: Murase Comments on GPL, A/CN.4/SR. 3489, 24 July 2019).[1]

I have been wondering how far this topic is intended to go beyond Article 38(1)(c). The Special Rapporteur states that Article 38(1)(c) is a “starting point” (para. 2 of the second report), but he does not indicate how far we are going beyond or outside 38(1)(c), and what our destination will be. In addition to ICJ cases, the second report refers to the decisions of ad hocarbitral tribunal, PCA, ICC, ICTY, Eritrea-Ethiopia Claims Commission, European Court of Human Rights and some of the investment tribunals, but, each of which has different system of applicable laws. Unless a court or tribunal incorporates explicitly Article 38 (1)(c) as its own applicable law, I don’t see how we can integrate them into a single set of compatible principles, even though they may look similar. 

However, the second report reaffirms that it deals with the identification of GPL “in the sense of Article 38(1)(c) of the ICJ Statute (paragraph 5), I will focus my discussion on this provision in my comments on that assumption today. Like Mr. Rajput, I think it is better to change the title of the topic to “General Principles of Law under Article 38(1)(c) of the Statute of ICJ” in order to avoid confusion.

Article 38(1)(c) of the Statute of the ICJ provides for the applicable law specifically for the ICJ. I must stress that each court or tribunal has its own set of applicable law, and there is no sense to generalize it. The provision of Article 38(1) is not intended to describe the “sources” of international law, formal or material; it prescribes which law the ICJ is to apply. The function of the ICJ is to decide the cases by the applicable law prescribed in Article 38(1), namely, international conventions (subparagraph (a)) and customary international law (subparagraph (b)). As a matter of formal sources of international law, there is no other form by which international law exists. The order of these applicable laws is understood also as the priority in application, (although it does not mean hierarchy of norms). The Court is supposed to apply in the order enumerated in this article, first, conventions and then customary international law. GPL in subparagraph (c) is the third applicable law for the Court. (I was bothered to hear that some members refer to (c) as the “third source of international law”. I repeat: GPL is not a “source of international law”!)

In 2019, I expressed my view that GPL are those derived from national laws and that GPL cannot be those within the international legal system, and several members expressed the same view. My reasons are, however, a bit different.

The Statute of the ICJ is a treaty like any other treaties. We need to follow the ordinary, accepted method of interpretation of treaty provisions. Within an article, paragraphs and subparagraphs must be interpreted so as not to overlap or conflict with each other. So, subparagraph (c) must be interpreted in the manner not to overlap or conflict with other subparagraphs including (a) and (b). This is required by the principle of effectiveness of the interpretation of treaties, in order to assure “meaningful” interpretation. The way that the second report interprets subparagraph (c) is contrary to this method of interpretation. Consequently, subparagraph (c), as an autonomous applicable law, must be interpreted as containing something different from (a) and (b), with no overlaps or conflicts. Thus, it is logical to consider subparagraph (c) as referring to domestic law principles, excluding international law principles. This is the only way that subparagraph (c) can be interpreted meaningfully in accordance with the effectiveness principle of the treaty interpretation.

If a given principle is the principle incorporated in a convention or a customary international law, why they have to leave their prominent and well-established places of subparagraph (a) and (b), to be downgraded to less prominent subparagraph (c)? If a principle is incorporated in a convention, it is a convention, and not GPL. If it is incorporated in customary law, it is a customary law, and not GPL. Assimilating treaty principles and customary principles into GPL would weaken the normative status of treaties and customary international law, which should be avoided by all means. It is similar to the “Relative Normativity” question that Professor Prosper Weil once cautioned in relation to blurring distinction between soft law and hard law.[2]   

As a treaty, we go back to the travaux preparatories, if the language of the provision is ambiguous. We know from the legislative history of Article 38(1)(c) of the PCIJ Statute in 1920, that the principles contemplated were “domestic law” principles, as Mr. Rajput explained yesterday. 

In any event, as I stated in 2019, it is correct for Draft conclusion 3(a) to identify GPL as being “derived from national legal systems”, but I believe it is wrong to consider GPL to be found “within the international legal system” as indicated in the proposed Draft conclusion 3(b). I would therefore not be in favor of Draft conclusion 7 in the second report. I am in agreement with those members who were critical to Conclusion 7, and I am not repeating them in my statement.

GPLs are exclusively the principles derived from national legal systems, the reason why this subparagraph (c) was inserted is well known: “they serve to fill gaps in conventional and customary international law, or to avoid findings of a non liquet” (as confirmed in para. 25 of the first report). Avoiding non liquet is widely accepted as the function of GPL. Filling gaps (lacuna) is the function of the Court, which should be recognized clearly and consciously in case of GPL. Transposition of GPL into an applicable law of the Court must be understood as a dynamic process of the Court in moving the national law principles to the level of Court’s applicable law. I think that this function of the Court should be highlighted in the draft conclusion.

If we accept this broad competence of the Court in applying GPL, then, I think we can set more flexible criteria for its application than those provided for in Conclusions 4, 5 and 6. Flexibility is extremely important if GPLs are to be applied meaningfully. The conditions laid down in Conclusions 4, 5 and 6 appear to be too stringent, which do not conform to the actual practice of the Court. 

           I am basically in agreement with Conclusion 4, but paragraph (a) referring to “common to the principal legal system of the world” may have to be understood in a flexible manner. The Court may examine 10 or 20 cases of national legal systems, but never try to examine those of “all States of the world”. What is important is to find whether a legal institution in question is common to the contesting parties to a given dispute, say, the institution of private property and vested rights are common to the UK and Iran in case of the Anglo-Iranian Oil Company case at that time. Of course, it may be different now. Unlike customary international law, GPL is essentially dispute-specific, and it does not live long. Regarding paragraph (b), “transposition” does not occur unless the Court take concrete steps for it. Transposition occurs only through the active role of the Court, which should be explicitly mentioned in the text. Furthermore, it is not the transposition to “the international legal system”. It is the transposition to the level of “application of law” to a specific dispute.

           With regard to Conclusion 5, I agree that the Court normally conducts, in applying GPL, some kind of comparison between national legal systems of the contesting States as well as other States, though it may not be an elaborate comparative law analysis that PhD students may be required to do. Perhaps, in paragraph (1), instead of the words “a comparative analysis”, a more moderate expression such as “a comparative examination” may be proper. I think paragraphs (2) and (3) may be deleted, because the conditions laid down there are very stringent.

           I am not sure if we need Conclusion 6, as it appears that we have already referred to the issue of transposition in Conclusion 4, which seems to be sufficient.

           As I said, we should delete Conclusion 7.

           I have no objection to Conclusion 8 and 9, though I am not sure if GPL really needs to be supplemented by “subsidiary means”. Suppose that GPLs are domestic law principles, then, the Court can prove their existence by examining the very domestic laws and domestic court cases. Domestic court cases in this process are not subsidiary means, but they are direct means for the determination of the principles in question. Thus, these conclusions may be moved to commentaries.        

Over all, the second report seems to imply that GPL permeates into the whole of international law, which is contrary to the original intension of the drafters of Article 38(1)(c), which is also contrary to the proper method of treaty interpretation. While the Special Rapporteur may be called the “GPL Maximalist”, I would suggest a modest “Minimalist” approach, delimiting the content of GLP as domestic law principles and the function of GLP as a modest gap-filler. The Commission may wish to establish a working group to consider the way to move the topic forward. 

           I am in favor of referring all the draft conclusions, except Conclusion 7, to the Drafting Committee. Once again, I would like to thank the Special Rapporteur for his excellent second report.

           Thank you.  

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

[2] Prosper Weil, “Towards Relative Normativity of International Law”, American Journal of International Law, vol. 77, issue 3, 1983, pp. 413-442.

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