Republic of the Philippines

Region V

To: His Excellency, Mr. Enrique Manalo

Permanent Representative of the Philippines to UN

AIDE MEMOIRE

Executive Brief

This aide memoire focuses on the identification of general principles of

law formed within the international legal system particularly reviewing draft
conclusion 7 proposed by the Special Rapporteur Mr. Marcelo Vázquez-
Bermúdez in his second report to the UN International Law Commission
(“Commission”, for brevity). The objective of this aide memoire is to assess
and illustrate the essential principles behind draft conclusion 7 in relation to
applicable treaties, conventions or other international instrument and/or
pertinent international cases, and to provide recommendations thereon.

Background

The Commission decided to include the topic “General principles of

law” in its current programme of work, and appointed Mr. Marcelo Vázquez-
Bermúdez as Special Rapporteur. He submits two well-researched and
organized reports based on impeccable legal reasoning. The first report
addresses the scope of the topic, discusses previous work of the Commission
related to general principles of law, and provides an overview of the
development of general principles of law over time. The second report
presents a discussion of the identification of general principles of law in the
sense of Article 38, paragraph 1(c), of the Statute of the International Court
of Justice.

In the said reports, the Special Rapporteur proposed nine (9) draft
consolidated conclusions with commentaries with regards to the outcome of

the present topic. The seventh draft conclusion will be addressed in this
memoire.
Draft Conclusion 7

Identification of general principles of law formed within the
international legal system

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.

Notes and Comments

The above draft conclusion provides a methodology of identifying

general principles of law formed within the international legal system in the
context of Article 38, paragraph 1(c), of the Statute of the International Court
of Justice. It sets out three different forms of recognition, which is an essential
condition for the existence of a general principle of law created within the
international legal system.

The first form is by ascertaining that a principle has been widely

incorporated into treaties and other international instruments, such as General
Assembly resolutions. An example of a general principle of law developing
in this way are the Principles of International Law Recognized in the Charter
of the Nürnberg Tribunal and in the Judgment of the Tribunal (Nürnberg
principles). These principles were incorporated in the Charter of the
International Military Tribunal of 1945 and applied by the International
Military Tribunal for the Prosecution and Punishment of the Major War
Criminals of the European Axis (Nürnberg Tribunal). It was later affirmed by
the General Assembly in 1946. During the adoption of the International
Covenant on Civil and Political Rights and the European Convention on
Human Rights, the States appear to have considered the Nürnberg principles
as general principles of law in the sense of Article 38, paragraph 1(c), of the
Statute of the International Court of Justice.

 Another example of the first form are the principles embodied in the
Martens clause, which appeared for the first time in the preambles of the 1899
Hague Convention (II) with Respect to the Laws and Customs of War on Land
and the 1907 Hague Convention (IV) respecting the Laws and Customs of
War on Land.

General principles of law formed within the international legal system

may likewise be distinguished by establishing that they underlie general rules
of conventional or customary international law. In Legality of the Threat or
Use of Nuclear Weapons, the Secretary-General of the United Nations submits
a letter to the International Court of Justice asking, for advisory opinion, the
following question: “Is the threat or use of nuclear weapons in any
circumstance permitted under international law?” In its written statement,
Indonesia seems to have sought to determine a general principle of law by
way of deduction from treaty provisions. It stated that: “support for the
principle that the threat to commit an illegal act is also illegal can be found in
international legal instruments and opinio juris as well as the general
principles of law recognized by civilized nations.”

The Special Rapporteur observed that in making this argument,

Indonesia referred generally to treaties prohibiting the possession and
manufacture of weapons of mass destruction, the Nürnberg principles,
Protocol I of the Geneva Convention and the Convention on the Prevention
and Punishment of the Crime of Genocide

The third manner by which general principles of law may be recognized

is by ascertaining that they are inherent in the basic features and fundamental
requirements of the international legal system, which is a creation of the
community of nations. An example of such form is the the principle of consent
to jurisdiction.

Recommendation

The proposed draft conclusion 7 provides an adequate guidance and

methodology for the identification of general principles of law formed within
the international legal system. It is clear and concise, as well as broad enough