Lifshits: The Elusive Beauty of the General Principles of Law Recognized by Civilized Nations

Ilya Lifshits (Russian Foreign Trade Academy; EDAS Law Firm) has published Ускользающая красота общих принципов права, признанных цивилизованными нациями (The Elusive Beauty of the General Principles of Law Recognized by Civilized Nations) (HSE Univ. Journal of International Law, Vol. 3, no. 3, 2025). Here's the abstract:

In April and May 2025, the UN International Law Commission at its 76th plenary session considered the Fourth — final — report of the Special Rapporteur on general principles of law. The Drafting Committee prepared the draft Conclusions for second reading. It is expected that in 2026 the draft general principles of law conclusions will be adopted as finalised and not significantly modified from the existing text. The hearings in the Commission, the reports of the Special Rapporteur, including an extensive bibliography, as well as the results of the States' discussions in the Sixth Committee of the UN General Assembly, provide rich research material and allow some conclusions to be drawn today. Firstly, the Commission unambiguously classified the general principles of law as an autonomous source of international law, and the representatives of States in the Sixth Committee almost unequivocally agreed with this. Secondly, the Commission divided the general principles of law into two categories: those derived from national legal systems and those formed within the international legal system, and proposed a methodology for their identification. Thirdly, the functions of the general principles of law were defined: contribute to the coherence of the international legal system, including as a means for interpreting and complementing other rules of international law; although general principles of law mainly resorted when other rules do not address a particular issue, the Commission emphasised, that this third source is not in a hierarchy below the other sources. Finally, the last version of the draft had been supplemented by the general principles of law with a limited scope of application, which may include regional principles. The Commission did not define "general principles of law" and the methodology for identifying them, which consists of inductive and deductive methods, often does not allow for distinguishing this source from rules of customary international law. However, the discussion of the "third" source of international law referred to in article 38 of the Statute of the International Court of Justice has reached a very high level of doctrinal and inter-State debate, which allows us to expect that it will continue to be an "engine" of international law, offering for the latter possible rules to be borrowed from national systems. The confirmation of the existence of general principles of law emanating from the international legal system makes it possible to consider the basic principles of international law, proclaimed in the Declaration by the UN General Assembly in 1970, not only as an elucidation of the treaty provisions of the UN Charter, and not only as rules of customary international law, but also as the "third" source of international law. The annex to the article contains a chart giving the author’s understanding of the relationship between the various generally recognised principles and norms of international law, as well as examples of general principles of law referred to in the Commentary on the Draft Conclusions. However, the Commission’s work suggests that the romantic idea of using moral imperatives, divine revelation, or natural law to address inter-State disputes has finally become history.