Origins of the General Principles

Chapter 1 Origins of the General Principles

Were general principles always part of international law? Several scholars be- lieve they evolved from natural law and transformed into positive law with the rise of international jurisprudence. Others place the emergence of general principles in 1920, when a group of ten jurists from around the world – the Advisory Committee of Jurists – categorised the sources of international law for the first time in what became Article 38 of the Statute of the Permanent Court of International Justice, now Article 38(1) of the Statute of the Interna- tional Court of Justice. This chapter takes the latter view and revisits the genesis of Article 38(1)(c) of the Court’s Statute from draft produced by the Advisory Committee of Ju- rists to the 1945 adoption of the Statute of the International Court of Justice. Besides covering in detail the 1920 discussion on general principles, this chapter sketches the state of (non-existence of) general principles as the third source of international law before 1920 and their relation to natural and positive law.

1.1 History of Article 38 of the pcij Statute

In 1920 the League of Nations tasked the Advisory Committee of Jurists (acj) with creating rules for the establishment of the Permanent Court of Interna- tional Justice (pcij), the first permanent international tribunal to exist. This new Court would be able to decide based on “a body of law known in advance”.1 Among the provisions the acj drafted was Article 35 – currently Article 38 – in which it officially classified the sources of international law for the very first time. The 1920 classification remains unchanged to this day. The acj was composed of ten independent jurists: Édouard Descamps (from Belgium) (also the President of the Committee), Minneichiro Adatci (from Japan), Rafael Altamira (from Spain), Clovis Bevilaqua, (replaced by Raoul Fernandes, both from Brazil), Francis Hagerup (from Norway), Albert de Lapradelle (from France), Bernard Loder (from the Netherlands), Lord Philli- more (from England), Arturo Ricci-Busatti (from Italy), and Elihu Root (from

1 Brown Scott, ‘Advancement of International Law Essential to an International Court of Justice’, 15 Proc. Am. Soc. Int’l L. Ann. Mtg. (1921) 21, at 27.

10 Chapter 1 the United States). After the establishment of the pcij, Altamira, Adatci and Loder joined the Court as judges, the last even serving as its Vice-President.2 The Advisory Committee took up its task of drafting the Court’s Statute after its first informal meeting on 15 June 1920.3 The sessions took place between 16 June and 24 July 1920. Interestingly, the Committee dedicated more time to structural questions on nomination of judges, the composition of the Court and its compulsory jurisdiction than to classifying the substantive sources of international law.4 In fact, the Committee drafted Article 35 (later Article 38) over the course of three brief meetings between 1 and 3 July, without discuss- ing all the questions that had been raised.5 However, it is precisely its work on this Article – and on the general principles in particular – that makes Artilce 38 by far the most controversial of the Statute’s provisions to date.6 The members of the acj were national lawyers and jurists whose “concep- tion of the content of international law would almost unavoidably have been coloured by national tendencies and traditions”.7 Indeed, Hammarskjöld’s reports speak of the stark difference of opinion between Descamps – a conti- nental jurist – on the one hand, and Phillimore and Root – both common law jurists – on the other.8 This rift found its expression especially in the drafting of Article 35.

2 See also Hudson, The Permanent Court of International Justice, 1920–1942: A Treatise (New York: Macmillan Co. 1943), at 115–116. Spiermann provides a rich and informative analysis of the Committee’s work on the drafting of the pcij Statute, basing his account on unpublished reports by Åke Hammarskjöld who was assisting the League of Nations’ Under-Secretary- General Dionisio Anziliotti (later also a pcij judge) at the acj sessions. Spiermann, ‘“Who attempts too much does nothing well”: The 1920 Advisory Committee of Jurists and the Stat- ute of the Permanent Court of International Justice’, 73 Brit. Y. of Int’l L. 1 (2003), at 190, 191 (noting that “Hammarskjöld’s private and confidential reports […] were rich on details of the work of the Advisory Committee”). See also Malgosia Fitzmaurice, ‘The History of Article 38 of the Statute of the International Court of Justice’, in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017). 3 Spiermann, above n. 2, at 191, 200–201. 4 See Procès-Verbaux of the Proceedings of the Committee, 16 June-24 July 1920, with Annexes, Permanent Court of International Justice (ser.D), at 101 (Adatci); Spiermann, above n. 2, at 201 (noting that the Committee “spent the first week dealing almost exclusively with the ques- tion of nomination of judges”). 5 See Procès-Verbaux of the Proceedings of the Committee, above n. 4, at 281–346. 6 Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’, 3 Can. J. Comp. & Contemp. L. 269 (2017), at 286; Mendelson, ‘The Formation of Customary International Law’, offprint from Recueil des Cours de l’Académie de La Haye en ligne, Vol. 272 (Leiden: Brill/Nijhoff, 1998), at 369. 7 Spiermann, above n. 2, at 240. See also ibid., at 259. 8 Ibid., at 213.