The Study of the International Law Commission on the "General Principles of Law" and an Evaluation of Current Developments

In 2018, the International Law Commission started its work on the "general principles of law," one of the sources of international law. So far, two very detailed reports have been published by the Special Rapporteur Marcelo Vazquez-Bermudez, and the Commission has held discussions on these reports. The Commission's work has taken practices of states and international judicial bodies regarding this source of international law as its basis instead of existing discussions in the doctrine on the general principles of law; doctrine has instead been used as an auxiliary source. For this reason, discussions about the existence of a third source in the form of general principles of law have not been included. First of all, explanations were made based on the regulation in the Statute about the nature of the general principles of law. The first report devoted a large portion to examining the origin of the general principles of law, wherein the principles are stated to be able to be found in two different sources. Accordingly, the general principles of law may be derived from domestic laws, or general principles emerging in the field of international law may exist. Regarding this second group of principles in particular, different opinions emerged in the Commission and the Sixth Committee that reject the existence of such principles or state them to not fall within the scope of the principles stipulated in Article 38/1-c of the Statute of the International Court of Justice. In particular, this study defends the views that some general principles of law may exist that have emerged in the field of international law and that these also fall within the scope of the Statute. The second report explains the methods and criteria to be taken as a basis in determining the general principles of law derived from these different origins. The fact that these reports have not included the relationship between equity and the general principles of law can be considered a deficiency. In addition, the general exclusion of the controversial situations in the doctrine regarding the general principles of law -which are much more intense than the treaties and international custom- should be stated to pose a partial obstacle to the clarification of this issue by the Commission. Due in particular to how the Court frequently avoids resorting to this third source of law openly, the confusion in the doctrine may lies behind this avoidance.