Nuremberg Principles - The Principles' Power or Lack of Power

The Principles' Power or Lack of Power

See also: Sources of international law and International legal theory

In the period just prior to the June 26, 1945 signing of the Charter of the United Nations, the governments participating in its drafting were opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on states by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of Article 13 in Chapter IV of the Charter. It obliges the United Nations General Assembly to initiate studies and to make recommendations that encourage the progressive development of international law and its codification. The Nuremberg Principles were developed by UN organs under that limited mandate.

Unlike treaty law, customary international law is not written. To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law. (For example, the Nuremberg Trials were a "practice" of the "international law" of the Nuremberg Principles; and that "practice" was supported by the international community.) In this context, "practice" relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible. If this contrary practice is condemned by other states then the rule is confirmed. (See also: Sources of international law)

In 1950, under UN General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text above was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the Intemational Law Commission, 1950, Vol. II, pp. 374–378).