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 will focus on the topic “General Principles of Law”
specifically discussing the draft conclusion 6 proposed by Special Rapporteur
Mr. Marcelo Vázquez-Bermúdez in his second report to the UN International
Law Commission (“Commission”, for brevity).

Background

At its seventieth session, the Commission decided to include the topic

“General principles of law” in its current programme of work. It decided to
appoint Mr. Marcelo Vázquez-Bermúdez as Special Rapporteur for the topic.
Consequently, the Special Rapporteur submits two exhaustive and in-depth
reports on the general principles of law. The first report addresses the scope
of the topic and the main issues to be tackled in the course of the work of the
Commission. 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 his first report, the Special Rapporteur suggests that the outcome of
the present topic should take the form of conclusions accompanied by
commentaries. Accordingly, he proposed nine (9) draft consolidated
conclusions with commentaries.

During the seventy-first session, a majority of the members of the

Commission agreed that the basic approach for the identification of general
principles of law derived from national legal systems consists of a two-step
analysis: first, determining the existence of a principle common to the

principal legal systems of the world; second, ascertaining the transposition of
that principle to the international legal system. The sixth draft conclusion
provides the two conditions required for the occurrence of a transposition of
a principle in foro domestico (or general principles of law recognized in
domestic courts) to the international legal system. This draft conclusion will
be further discussed below.

Draft Conclusion 6
Ascertainment of transposition to the international legal system

A principle common to the principal legal systems of the world is transposed

to the international legal system if:

(a) it is compatible with fundamental principles of international law; and 


(b) the conditions exist for its adequate application in the international
legal system.

Notes and Comments

The core principle of the above-quoted draft conclusion is that a

principal in foro domestico may be transposed to the international legal
systems; provided, that the two requirements are met: first, the former
principle is compatible with the fundamental principles of international law;
and second, the conditions exist for its adequate application in the
international legal system. Essentially, this draft conclusion stipulates a
guideline for the proper application and ascertainment of a valid transposition
of a principle common to the principal legal systems of the world.

The rationale behind this analysis is, as discussed in the second report
by the Special Rapporteur, self-evident: municipal law and international law
have unique features and differ in many important aspects, and the principles
existing in the former cannot be presumed to be always capable of operating
in the former.

In the North Sea Continental Shelf cases, Germany alleged that a

“principle of the just and equitable share” was a general principle in the sense
of Article 38, paragraph 1(c), of the Statute of the International Court of

Justice. This allegation was challenged by Denmark and the Netherlands, to
wit:
The Federal Republic of Germany itself speaks of the general
principles of law applicable under Article 38 (1) (c) as “the outcome of
legal convictions and values acknowledged all over the world”. How
can this be said of a principle which runs directly counter to the
principles recognized in international law itself as representing “the
legal convictions of States” in the matter? Least of all can it be so said
when the “legal convictions” of States have been deliberately and
recently expressed in a sense contrary to the alleged principle in a
general convention intended to codify the law.

The International Court of Justice agreed with Denmark and the

Netherlands, and rejected the principle invoked by Germany. It explained that
the alleged principle of just and equitable share could not be considered a
general principle of law as it would be “quite foreign to, and inconsistent with,
the basic concept of continental shelf entitlement.”

In Arbitral Award made by the King of Spain, Nicaragua contested the

validity of the arbitral award made in accordance to a treaty between
Nicaragua and Honduras. The former country considered that certain notions
of nullity of judgments or awards in municipal law could not be properly
applied in international law due to the absence of a judicial system analogous
to those existing in States.

The transposition of general principles of law from principle in foro

domestico to the international legal systems can also be observed in several
international instruments, such as the Rules of the United Nations
Commission on International Trade Law, the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States and the
Iran-United States Claims Settlement Declaration.

Recommendation

Draft conclusion 6, subparagraph (b) did not explain what “condition”

entailed. It could be fleshed out: that would require a more comprehensive
analysis of the necessary conditions for the adequate application of a principle
common in the international legal system.