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Mr. President,

I have the honour to speak on behalf of the European Union.

Mr. President,

Let me first thank the Special Rapporteur, M. Marcelo Vázquez-Bermúdez, for his work on the topic on general principles of law. The quality of his three reports enabled the International Law Commission (ILC) to complete the set of draft conclusions on the topic during its last session.

The EU congratulates also the ILC for the significant progress made in the consideration of this important topic. The EU welcomes that during its last session the ILC adopted the draft conclusions and the commentaries to them on first reading. The EU also takes note that the ILC has decided to transmit the draft conclusions, through the Secretary-General of the UN for comments and observations to be submitted by 1 December 2024. 

The EU has carefully reviewed the detailed reports of the Special Rapporteur, the 11 draft conclusions and the commentaries to them as adopted by the ILC on first reading. It is noted that they primarily build on the practice of States and international courts. Whilst the Special Rapporteur also announced the possibility to analyze the practice of international organizations “if considered relevant for the purpose of the present topic”, the reference to the EU practice has remained limited for the time being. As the sole example, the Special Rapporteur made reference to Article 340 of the Treaty on the Functioning of the European Union on extra-contractual liability, where principles recognized in EU Member States serve as a source of EU law. He considers that this provision may serve as an example of a “general principle with limited scope of application”, and announced that such principles may be addressed in a future report. For their part, the commentaries to the draft conclusions refer only once to practice of the Court of Justice of the European Union.

The European Union considers that its practice is indeed relevant for this exercise. It agrees with the Special Rapporteur that EU practice, which builds on and reflects the legal traditions of twenty-seven European States, may be an important reference point when identifying principles recognized by the community of nations.

It could therefore be useful to analyze the comparative methodology used by the Court of Justice of the EU under Article 340 TFEU, but not only, in identifying principles of the EU law derived from Member States’ legal systems. In the process of identifying general principles of law, the EU practice could serve as a reference to determine how the methods of comparative law should be used in this context, in particular when an international judicial body is faced with the task of identifying general principles of international law.

In the same vein, the EU would like to draw the attention to Article 6(3) of the Treaty on European Union, which states that “fundamental rights (…) as they result from the constitutional traditions common to the member States, shall constitute general principles of the Union’s law”.

This illustrates that in the EU legal order, general principles that emanate from the legal systems of its Member States also constitute principles of EU law and constitute an autonomous source of law. This may inform the debate in the ILC about the existence of general principles of law originating in the international legal system.

Mr. President,

Before concluding, the EU would like to make some specific remarks on some of the draft conclusions and the commentaries to them.

The European Union notes that the draft conclusion 2 refers to the recognition of the general principle of law by the “community of nations”. The same reference appears in draft conclusion 7 of the draft conclusion. The term “community of nations” replaces the term “civilized nations” found in Article 38 paragraph 1 c) of the Statute of the International Court of Justice. While the European Union can agree that the term “civilized nations” used by the Statute of the International Court of Justice may appear anachronistic, it considers that the new term “community of nations” does not seem to fully reflect the role which is played by international organisations as subjects of the international law. The European Union notes that, according to the point 5 of the commentary to the Conclusion 2, the use of the term “community of nations” does not preclude that “in certain circumstances” the international organisations may also contribute to the formation of the general principles of law. The commentary does not provide for further guidance in relation to the circumstances in which the international organisations could contribute to the existence of the general principles of law. As mentioned above, the EU recognizes general principles of law as an autonomous part of its legal order. In that sense, this specificity may serve as an illustration of an international organisation contributing to the formation of general principles of law. The European Union would thus welcome further reflections on the role of the international organisations in the creation of the general principles of law and, if necessary to consider the use of the term “the international community”.

The European Union welcomes that draft conclusion 4 specifies the two steps analysis necessary for the identification of the general principles of law derived from national legal systems. The European Union notes that the second step of the identification of the general principles refers to the “transposition” of the general principles of law derived from national legal systems to the international legal system. Point (6) of the commentary to the draft conclusion 4 indicates that the term “transposition” was preferred to “transposability” as the transposition necessary includes transposability. While the European Union can follow this reasoning, it would welcome the precision in the commentary that the term “transposition” should not be read as meaning that an ex-ante transposition would be required. In other terms and having in mind that the general principles of law could fill existing lacuna in the international law, it should be made clear that this requirement is to be understood as meaning that the principle derived from national legal systems is susceptible to be transposed in the international legal system. 

The European Union observes that draft conclusions 4 and 5 require that the principles derived from national legal systems must be “common to the various legal systems of the word”. The European Union attributes great importance to the fact that the principle must be common to the legal systems which are as numerous and as representative as possible. For this reason, the European Union would welcome further clarification in this regard in the commentary.

The EU welcomes that the ILC has clarified that the term “international courts and tribunals” used in that Conclusion is “intended to cover any international body exercising judicial powers that is called upon to consider general principles of law” (paragraph 7 of the commentaries to draft conclusion 8). The decisions of the Court of Justice of the European Union should undoubtedly be considered as subsidiary means for the determination of general principles of law and the EU invites once again the ILC to look at the jurisprudence of the Court of Justice of the European Union and to mention it in the commentaries to draft conclusion 8, as appropriate.

The European Union welcomes the specification of the function of the general principles of law provided for in the draft conclusion 10. According to paragraph 1, the general principles of law are “mainly” resorted to when other rules of international law do not resolve a particular issue in whole or in part. While the European Union shares the understanding that this wording reflects the tendency in practice and in doctrine, the European Union would prefer that the paragraph 1 is worded in the way which is fully coherent with the wording and spirit of Article 38 paragraph 1 of the Statute of the International Court of Justice which lists three sources of the international law without indication of any hierarchical relationship among them. Alternatively, the word “mainly” in paragraph 1 of draft conclusion 10 could also be deleted and the details contained in this paragraph could be moved to the commentary.  

Mr. President,

The European Union will consider sharing with the International Law Commission additional observations in writing, information and material to be used during the further consideration of this topic, in order to continue contributing to the development of international law.

I thank you.