to encompass several forms of recognition.

Supporting this conclusion is

recommended.
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 examining the draft conclusion 8 proposed by Special Rapporteur
Mr. Marcelo Vázquez-Bermúdez in his second report to the UN International
Law Commission (“Commission”, for brevity).

Background

In its seventieth session, the Commission incorporated the topic

“General principles of law” in its current programme of work. It appointed
Mr. Marcelo Vázquez-Bermúdez as Special Rapporteur for the topic. Thus,
the Special Rapporteur presents two in-depth reports on the topic. The first
report addresses the scope of the topic and the main issues. It also provides an
overview of the development of general principles of law over time. The
second report discusses 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 because he suggests that the
outcome of the present topic should take the form of conclusions accompanied
by commentaries. The eightieth draft conclusion will be further discussed
below.

Draft Conclusion 8


Decisions of courts and tribunals

1. Decisions of international courts and tribunals, in particular of the

International Court of Justice, concerning the existence and content of
general principles of law are a subsidiary means for the determination
of such principles.
2. Regard may be had, as appropriate, to decisions of national courts
concerning the existence and content of general principles of law, as a
subsidiary means for the determination of such principles.

Notes and Comments

The essential principle of draft conclusion 8 is that decisions of

international courts and tribunals, as well as national courts are a subsidiary
means for the determination of the existence and content of general principles
of law. Simply, the Special Rapporteur proposes that such decisions provide
the necessary support in elucidating the law, rather than being themselves a
source of international law (as are treaties, customary international law and
general principles of law).

Judicial decisions have been used on many occasions whenever a

question regarding the existence and the content of a general principle of law
arises. In Philippine jurisprudence, the dissenting opinion of Judge Tanaka in
the 1966 South West Africa Case was cited by the Supreme Court when it
explained the concept of “generally accepted principles of law.”

In the Application of the Convention on the Prevention and Punishment

of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Serbia and Montenegro had asserted the existence of a principle
that “an international court may consider or reconsider the issue of jurisdiction
at any stage of the proceedings” on the basis of “certain international
conventions and the rules of other international tribunals”. However, the
International Court of Justice rejected the existence of such a general principle
that would apply to the Court, given that its own Statute was clear in that
regard.

 This decision reiterated the principle of draft conclusion 8 that
decisions of international courts and tribunals concerning the existence and
content of general principles of law are a subsidiary means for the
determination of such principles.

Similar to the previous decision, the arbitral tribunal in the Yukos case
rejected the “clean hands” doctrine invoked by the Russian Federation. It held
that the Russian Federation did not cite any “majority decision where an
international court or arbitral tribunal has applied the principle of ‘unclean
hands’ in an inter-State or investor-State dispute”.

Another example is the Corfu Channel case wherein the International

Court of Justice applied the use of indirect evidence because, in addition to
being admitted in “all systems of law”, it was “recognized by international
decisions.”

Recommendations

The title of draft conclusion 8 requires refining so as to immediately

clarify to a reader the guidance it provides. The title could be changed into
“Determination of the existence of general principles of law through
Decisions of courts and tribunals.”