Die allgemeinen Rechtsgrundsätze als Völkerrechtsquelle in den Kodifikationsbestrebungen der International Law Commission

The ILC's work on the general principles of law took place in a political environment in which the idea of an international community was diminishing. This likely influenced the Conclusions, as they have not taken up shifts towards a value-based legitimization of legal obligations. Instead, some states emphasized the link between general legal principles and state recognition. From a progressive perspective, the recognition by the international community could have been introduced in Conclusion 2. However, the ILC has adhered to Article 38(1) of the ICJ Statute, focusing on state consensus in the creation of international law. Nonetheless, the Conclusions in their current version are to be welcomed, as they counter the emphasis on state recognition and create a second category of general prin- ciples of law alongside those from national legal systems. While the existence of those formed within the international legal system remains controversial, the ILC's approach of identifying criteria for each category individually and allowing implicit consensus is wel- come. Criticism of the vagueness of Conclusion 7 on identifying general legal principles of the second category is justified, as its wording diverges from the relevant Commentaries. The distinction from customary law should also be elaborated, whereas Poland's demand to clarify dogmatic questions about 'general principles of law' seems anachronistic. Finally, some formulations in Conclusion 3, 5 and 8 could be improved. The proposal of the Nordic States on Conclusion 11 should also be considered.