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Historicizing the Dual Categorization of the General Principles of Law by the ILC

Published online by Cambridge University Press:  23 July 2020

Md Tabish EQBALOpen the ORCID record for Md Tabish EQBAL[Opens in a new window]
Md Tabish EQBAL*
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South Asian University, India
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Abstract

“Draft conclusion 3” of the first ILC report on the “general principles of law” expounds on two categories: general principles of law derived from national jurisdictions and those formed within the international legal system. This paper explores the drafting history of Article 38(1)(c) of the ICJ's Statute to investigate whether the Advisory Committee of Jurists, entrusted to frame a statute for the international court, had conceived the idea that, apart from domestic legal systems, the international legal framework could form general principles of law, or whether they were reluctant to endorse such an open-ended formulation which would give more liberty to judges to apply these principles as per their whims and fancies. The paper argues that the dual categorization of the general principles of law by the ILC has no substantive roots in the preparatory history of the ICJ's Statute and therefore it is purely an innovation by the ILC.

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Notes and Comments
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Asian Journal of International Law , Volume 10 , Issue 2 , July 2020, pp. 187 - 195
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Copyright © Asian Journal of International Law, 2020

I. INTRODUCTION

Article 38(1)(c) of the Statute of the International Court of Justice [ICJ] provides “the general principles of law recognized by civilized nations” as one of the three principal sources of international law.Footnote 1 Although much has been written on the topic, ambiguity remains on the nature, scope, and function of this primary source of international law, as well as on the criteria and methods of their identification.Footnote 2 On 31 March 2016, the Secretariat of the International Law Commission [ILC/Commission] produced a report on the possible topics for consideration in which it listed the “general principles of law” as the foremost of all the six topics considered for codification and progressive development of international law.Footnote 3 In 2018, the topic “general principles of law” was finally included in the work programme of the ILC, and the Commission appointed Mr Marcelo Vázquez-Bermúdez as Special Rapporteur.Footnote 4 In 2019, the Special Rapporteur came up with the first report on the general principles of law.Footnote 5 The report is preliminary and introductory in nature and its main purpose is to lay the foundation for the future work of the Commission on the topic. Nevertheless, the report has come up with a set of three draft conclusions on the general principles of law.Footnote 6 It is interesting to note that the Draft conclusion 3 speaks about the two categories of general principles of law: general principles of law derived from national legal systems and general principles of law formed within the international legal system.Footnote 7 Given this background, it is imperative to understand the current significance of general principles of law and then explore whether the dual categorization of these principles has any substantive roots in the preparatory work of the Permanent Court of International Justice's [PCIJ] Statute.

II. SIGNIFICANCE OF GENERAL PRINCIPLES OF LAW: A SEARCH FOR A THEORY

There are several reasons for the continuing relevance of general principles of law [general principles] as a source of international law. First, general principles may provide a norm or standard when a treaty or custom is non-existent or inapplicable. In fact, general principles were incorporated under the category of primary sources within the Statute of the PCIJ so as to avoid the possibility of non liquet which may arise in situations where conventional and customary laws are either silent or non-applicable. This is also evident from the practice of the PCIJ and the ICJ which have frequently applied principles common to major legal systems in cases where positive sources of international law are inapplicable or absent.Footnote 8 The courts have transposed these principles from national legal systems to the international legal system, filling out the legal gap arising due to the absences of applicable rules of international law. It would not be an exaggeration to conclude that general principles do play a normative role in filling gaps or remedying deficiencies caused by the primary sources (Treaty and Custom) of international law.Footnote 9 Consequently, this has contributed a lot in defining legal relationships between states.

Second, general principles are widely applied to clarify and interpret conventional and customary international law. Scholars such as Lauterpacht have noted that the invocation of general principles by the ICJ is “no more than interpretation of existing conventional and customary law by reference to common sense and the canons of good faith”.Footnote 10 General principles can be employed to interpret ambiguous and uncertain language in conventional and customary international law.Footnote 11 Principles such as “good faith” and “equitable performance” have been relied upon to determine the rights and duties of states either in conventional or customary law. The extent to which one can resort to general principles for interpretative purposes has not been defined, yet their application for such purposes should be in conformity with the existing norms of international law.

Third, general principles have been instrumental in the development of new norms of conventional and customary international law.Footnote 12 Scholars have recognized this function of general principles as essential to the development of international law which is not a static but dynamic process.Footnote 13 In certain situations, general principles have provided a platform for the emergence of jus cogens.

Last, since the idea of general principles vests with its recognition by major national legal systems, the developing world may create any such principles to its advantage at the cost of the developed world; therefore it is pertinent to codify them or lay down the rules for their recognition.

III. THE DRAFTING HISTORY OF ARTICLE 38(1)(c) OF THE STATUTE OF THE ICJ

Article 38 of the Statute of the ICJ is essentially the same as that codified within the Statute of the PCIJ 1920, with modifications only to the introductory partFootnote 14 and in the numbering of the paragraphs and subparagraphs.Footnote 15 Accordingly, it is logical to begin with the negotiating history of Article 38 of the Statute of the PCIJ itself. In February 1920, the Council of the League of Nations appointed an Advisory Committee of Jurists [Advisory Committee]Footnote 16 to prepare a draft for setting up a Permanent Court of International Justice. Before the proceedings of the Advisory Committee could commence, a number of draft schemes prepared by states and individuals relating to the establishment of a World Court were submitted by the Secretariat of the League to the Advisory Committee. Most of these drafts, in addition to treaties and custom, required the Court to apply “general principles of law”,Footnote 17 “general principles of law and equity”,Footnote 18 “general principles of justice and equity”,Footnote 19 or “rules which in the considered opinion of the court, should be the rules of international law”.Footnote 20 The Advisory Committee presented its report along with its Draft Statute of the Court to the Council of the League of Nations at its eighth session (30 July–5 August 1920).Footnote 21

Undoubtedly, as evident from the travaux préparatoires of the Statute of the PCIJ, it was a herculean task entrusted to the Advisory Committee to prepare a plan for establishing a permanent court. This is clearly reflected in the introductory speech of Baron Descamps, the President of the Advisory Committee, who stated:

The Committee of Jurists, entrusted with the preparation of a plan for a Permanent Court of International Justice, fully realizes the great difficulties which are attached to a task in the accomplishment of which numbers of statesmen and jurists have failed since the Conference of 1907.Footnote 22

However, it is clear from the drafting history that the question concerning the organization and competence of the International Court, and the rules to be applied by the judges while dealing with the cases, posed greater ambiguity and complications before the Advisory Committee as compared to the question concerning the working procedure of the court.Footnote 23 Accordingly, the issue of the identification of rules to be applied by the Court emerged as one of the most contentious topics before the Advisory Committee. There was a huge discussion between the members of the Committee on the question of material laws to be applied by the Court.Footnote 24 It started with the President of the Committee, who proposed the following draft on the issue:

The following rules are to be applied by the judge in the solution of international disputes; they will be considered by him in the undermentioned order:

  1. 1. conventional international law, whether general or special, being rules expressly adopted by the States;

  2. 2. international custom, being practice between nations accepted by them as law;

  3. 3. the rules of international law as recognized by the legal conscience of civilized nations;

  4. 4. international jurisprudence as a means for the application and development of law.Footnote 25

Most of the members of the Advisory Committee endorsed Clauses 1 and 2 of the President's draft without much discussion.Footnote 26 Regarding Clause 3 of the President's draft there was fierce debate within the Advisory Committee. Responding to the President's draft, Mr Root stated that he was comfortable with Clauses 1 and 2 of the draft but had serious objections on Clause 3 as he could not understand the exact meaning of it.Footnote 27 He enquired whether it referred to something which had been recognized but failed to have the character of law. He believed that Clause 3, if adopted, would result in the enlargement of the jurisdiction of the Court and thereby detrimental to the very existence of the Court. He also wondered whether it was possible to compel states to submit disputes to a Court “which would administer not merely law, but also what it deems to be the conscience of civilized peoples”.Footnote 28 M Hagerup, while disagreeing with Mr Root's opinion, brought the attention of the Committee to a specific situation that might crop up before the Court in which neither conventional nor customary law would be applicable. He therefore argued that a rule must be established in order to avoid the Court declaring itself incompetent (non liquet) on the subject.Footnote 29 He further observed that Mr Root's approach limited the competence of the Court and its power to contribute to the development of law and jurisprudence, and placed the Court in a completely different situation from that of an ordinary court which would not declare non liquet. Responding to this, Mr Root pointed out that nations would accept the compulsory jurisdiction of a court which would only apply universally recognized rules of international law and not a court which would apply principles understood and interpreted differently in different national jurisdictions.Footnote 30

Replying to Mr Root's concern, President Descamps stated that principles of justice might vary from country to country in respect of certain rules of secondary importance but would be identical in the case of

the fundamental law of justice and injustice deeply engraved on the heart of every human being and which is given its highest and most authoritative expression in the legal conscience of the civilized nations. That was the law which could not be disregarded by a judge, a law which in practice, whether it is wished to or not, a judge never would disregard.Footnote 31

He further observed that his proposal would limit the judges from relying too much on their subjective opinions as it would be obligatory for them to examine whether the dictates of their conscience were in conformity with the conception of justice of civilized nations.Footnote 32 Meanwhile, M Ricci-Busatti, another Committee member, also mentioned that it was not a question of creating new rules but merely applying general rules that could resolve the issue.Footnote 33 The President was convinced that if neither a conventional rule nor customary law existed, then the Court must apply the general principles of law so as to avoid the possibility of non liquet. Nevertheless, he was mindful that those principles must confirm with the legal conscience of civilized people. After much deliberation, the term “general principles of law recognized by civilized nations” first appeared in the amended draft proposal submitted by Mr Root at the 15th meeting of the Advisory Committee.Footnote 34 The proposal was approved by the Committee as well as the Assembly of the League of Nations with minor modifications.Footnote 35 It is interesting to note that the “general principles of law recognized by civilized nations” (as it appeared in Mr Root's draft at point 3) retained its place and formulation status quo both under the Statute of the PCIJ as well as of the ICJ.

So far as the question of the exact meaning and content of the term “general principles of law recognized by civilized nations” is concerned, there appears to be limited but useful discussion within the Advisory Committee. M de Lapradelle questioned the inclusion of this source under the doctrine of sources. He pointed out that, since custom is already included as a source from which the general principles were derived, there was no reason to put the “general principles of law” separately under the doctrine of sources unless they could also be extracted from judicial decisions and juristic writings.Footnote 36 On this, Lord Phillimore pointed out that the general principles referred in point 3 were nothing but those principles “which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata”.Footnote 37 He further clarified that, by general principles of law, he meant “maxims of law”.Footnote 38 Finally, M de Lapradelle acknowledged that principles which laid the foundations of national law are also sources of international law.Footnote 39 The other members of Committee, including the President, neither made any observation on the content of the general principles nor did they confront the explanation given by Lord Phillimore on the subject.

Accordingly, from the above discussion, the following conclusions may be derived. First, by incorporating “general principles of law” under the doctrine of sources of international law, the Committee excluded the possibility of denial of justice by the International Court which could have resulted if the Court were to apply only positive rules of international law (Treaty and Custom). Such incorporation resulted in upholding the effectiveness of the Court as well as the contribution of the Court to the development of law and jurisprudence. Second, it is explicit from the discussion that the members of the Committee understood the general principles of law as principles of fundamental importance which are embedded in different national legal systems but which have a common understanding and meaning. In other words, it refers to those principles of law which are frequently applied in different national jurisdictions by their domestic courts while dispensing justice. That was probably the reason why the term “recognized by civilized nations” was added to it.Footnote 40 This is further substantiated from the statement of M de Lapradelle, who advocated keeping the phrase as simple as “general principles of law” only, without indicating the exact sources from which these principles may be derived,Footnote 41 but his proposal received no response from his colleagues.

IV. CONCLUSION

The draft conclusion 3 of the ILC report talks about two categories of general principles of law: one which is derived from national jurisdictions while another is formed within the international legal system. This dual categorization does not have any basis in the drafting history of Article 38(1)(c). If the suggestions given by M de Lapradelle had been incorporated and the phrase had just appeared as “general principles of law” without indicating the sources from where these principles may be derived, then the dual categorization of general principles of law by the ILC would be justified to a greater extent. It is worthwhile to note that the entire discussion of the Advisory Committee on the general principles of law was confined to national legal systems. In other words, the drafting history is silent on the question of general principles of law formed within the international legal system. It would not be mistaken to then argue that either the Advisory Committee could not conceive the idea that apart from national legal systems the international legal system can also lead to the formation of certain general principles of law, or that they were reluctant to endorse such an open-ended formulation which would give more liberty to judges to apply these principles as they pleased. Therefore, it can be seen as an innovation by the ILC.

Footnotes

*

Doctoral Candidate, Faculty of Legal Studies, South Asian University [SAARC], India. I am grateful to my supervisor Dr Ravindra Pratap for his guidance and support. I am also indebted to Mr Santosh Anand for his insightful comments on the topic.

1. The other two sources are “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” and “international custom, as evidence of a general practice accepted as law”; see Statute of the International Court of Justice, 26 June 1945, U.S.T.S. 993 (entered into force 24 October 1945), art. 38(1).

2. See BOGDAN, Michael, “General Principles of Law and the Problem of Lacunae in the Law of Nations” (1977) 46 Nordic Journal of International Law 37; LAMMERS, Johan G., “General Principles of Law Recognized by Civilized Nations” in KALSHOVEN, Frits, KUYPER, Pieter Jan, and LAMMERS, Johan G., eds., Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys (Alphen aa den Rijn: Sijthoff and Noordhoff, 1980), 53–77; RAIMONDO, Fabián O., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Leiden: Martinus Nijhoff, 2008) at 7; PELLET, Alain and MÜLLER, Daniel, “Article 38” in ZIMMERMANN, Andreas and TAMS, Christian J., eds., The Statute of the International Court of Justice: A Commentary, 3rd ed. (Oxford: Oxford University Press, 2019), 923; ANDENAS, Mads and CHIUSSI, Ludovica, “Cohesion, Convergence and Coherence of International Law” in ANDENAS, Mads, FITZMAURICE, Malgosia, TANZI, Attila, and WOUTERS, Jan, eds., General Principles and the Coherence of International Law (Leiden/Boston: Brill/Nijhoff, 2019), 10; and REDGWELL, Catherine, “General Principles of International Law” in VOGENAUER, Stefan and WEATHERILL, Stephen, eds., General Principles of Law: European and Comparative Perspectives (Oxford/Portland, OR: Hart Publishing, 2017), 5.

3. Report of the International Law Commission on the Work of its Sixty-Ninth Session, Official Records of the General Assembly, Seventy-Second Session, Supplement No. 10, UN Doc. A/72/10, at para. 34; Report of the International Law Commission on the Work of its Sixty-Fourth Session, Official Records of the General Assembly, Sixty-Seventh Session, Supplement No. 10, UN Doc. A/67/10, at para. 267.

4. The General Assembly in its Resolution 72/116 of December 2017 took note of the inclusion of the topic in the Commission's long-term programme of work.

5. First Report of the Special Rapporteur, Mr. Marcelo Vázquez-Bermúdez, Seventy-First Session of the ILC (2019), UN Doc. A/CN.4/732.

6. See annex to ibid:

Draft conclusion 1, Scope: The present draft conclusions concern general principles of law as a source of international law.

Draft conclusion 2, Requirement of recognition: For a general principle of law to exist, it must be generally recognized by States.

Draft conclusion 3, Categories of general principles of law: General principles of law comprise those: (a) derived from national legal systems; (b) formed within the international legal system.

7. Although different categories of general principles of law exist in the scholarly literature, the Special Rapporteur has essentially selected the two broader categories as the two appear to be supported by practice and widely accepted by scholars. For a perusal of various categories of general principles of law, see SCHACHTER, Oscar, “International Law in Theory and Practice: General Course in Public International Law”, Collected Courses of the Hague Academy of International Law, Vol. 178 (1982-V), 9–396, at 74–5.

8. Mavrommatis Palestine Concessions (Greece v. U.K.), [1924] P.C.I.J. (ser. B) No. 3; Exchange of Greek and Turkish Populations (Greece v. Turkey), Advisory Opinion, [1925] P.C.I.J. (ser. B) No. 10; German Interests in Polish Upper Silesia (Germany v. Poland), [1925] P.C.I.J. (ser. A) No. 6; Interpretation of Greco-Turkish Agreement of Dec 1st, 1926, Advisory Opinion, [1928] P.C.I.J. (ser. B) No. 16; Factory at Chorzów (Germany v. Poland), [1927] P.C.I.J. (ser. A) No. 9; S.S. Lotus (France v. Turkey), [1927] P.C.I.J. (ser. A) No. 10; Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep. 359; Right of Passage Over Indian Territory (Portugal v. India), [1960] I.C.J. Rep. 43; South West Africa (Ethiopia v. South Africa.; Liberia v. South Africa), [1962] I.C.J. Rep. 319; Temple of Preah Vihear (Cambodia v. Thailand), [1962] I.C.J. Rep. 6 at 23; and Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253.

9. See Interpretation of Judgements Nos. 7 and 8 (Factory at Chorzów) (Germany v. Poland), Dissenting Opinion of Judge Anzilotti, [1927] P.C.I.J. (ser. A) No. 13 at 27: “it appears to me that if there be a case in which it is legitimate to have recourse, in the absence of conventions and custom, to ‘the general principles of law recognized by civilized nations’, mentioned in No. 3. of Article 38 of the Statute, that case is assuredly the present one.”

10. LAUTERPACHT, Hersch, The Development of International Law by the International Court (New York: Praeger, 1958) at 166–7.

11. BASSIOUNI, M. Cherif, “A Functional Approach to ‘General Principles of International Law’” (1990) 11 Michigan Journal of International Law 768 at 776.

12. See SØRENSEN, Max, Manual of Public International Law (New York: St. Martin's Press, 1968) at 145.

13. BRIERLY, James L., The Law of Nations: An Introduction to the International Law of Peace, 6th ed. (Oxford: Clarendon Press, 1963) at 63; VERZIJL, Jan Hendrik Willem, International Law in Historical Perspective (Leyden: A.W. Sijthoff, 1968) at 57. See also WHITEMAN, Marjorie M., Digest of International Law (Washington, DC: US Government Printing Office, 1963) at 90; and WHITEMAN, Marjorie M., Digest of International Law and Organization (Washington, DC: US Government Printing Office, 1984) at 145.

14. The introductory part of art. 38(1) of the PCIJ's Statute simply stated: “The Court shall apply”, whereas the current formulation in the ICJ's Statute is: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply.” This was added on the proposal given by the Chilean delegation in Committee I of Commission IV of the San Francisco Conference, 1945 (United Nations Digital Library, “Documents of the United Nations Conference on International Organization, San Francisco, 1945”, online: UN Digital Library <https://digitallibrary.un.org/record/1300969?ln=en>, at 284–5, 493).

15. In the case of the Statute of PCIJ, there was no numbering in the paragraphs and subparagraphs were numbered in Arabic figures. Article 38(1)(c) of the Statute of ICJ was written as 38 I 3, or often as art.38 (3).

16. The Advisory Committee of Jurists was established in 1920, in accordance with art. 14 of the Covenant of the League of Nations which states: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.” See League of Nations, The Covenant of the League of Nations (Montreal: A.T. Chapman, 1919).

17. Draft Proposal by Denmark, Norway, and Sweden, art. 27 II.

18. Draft Proposals by Germany, art. 35, and Clóvis Beviláqua, art. 24 II.

19. Draft Proposal by Switzerland, art. 42.

20. Draft Proposals by Denmark, art. 15 II, and Norway, art. 15 II.

21. For details regarding the meetings of the Advisory Committee of Jurists, see PCIJ, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee: June 16th–July 24th, 1920, with Annexes (The Hague: Van Langenhuysen, 1920) [Procès-verbaux of the Proceedings of the Committee].

22. Footnote Ibid., at 18. In addition to Baron Descamps (the President of the Committee, Belgium), there were nine more members on the Committee: Mineichirō Adatci (Japan), Rafael Altamira (Spain), Clóvis Beviláqua (later replaced by Raoul Fernandes, Brazil), Francis Hagerup (Norway), Albert de Lapradelle (France), Dr Bernard C.J. Loder (Vice-President of the Committee, the Netherlands), Lord Phillimore (Great Britain), Arturo Ricci-Busatti (Italy), and Elihu Root (US).

23. See annex no. 6 of the Second Meeting: Note read by Baron Descamps “[a]bout the difficulties of the problem submitted to the Jurists Committee and a proper method for solving these difficulties”, ibid., at 44.

24. Annex no. 2 talks about the Draft of General Agenda adopted by the committee, ibid., at 33; agenda (g) titled as “Material law to be applied by the court” raised several questions, such as whether the principles of law to be applied by the court should be framed in general or in detail, ibid., at 38:

In the latter case, what body of law shall be applied? Would the adoption of a system of detailed rules necessitate very extensive codifications of international law? In the former case, how should the principles of law to apply be described? What importance should be given to the practice to be established by the Court? Should the Court itself be sole judge over the interpretation of the principles laid down as base for its authority? How should existing gaps in international law, and in principles of such law, be filled?

25. Footnote Ibid., at 306.

26. Initially few members opposed the idea of laying down sources of law to be applied by the Court. But later they endorsed it. De Lapradelle called the President's draft “interesting but useless”. According to him the task of defining the law must be left to the judges. Therefore, he preferred a short wording that “the Court shall judge in accordance with law, justice, and equity”, ibid., at 295–6.

27. Mr Root, while responding to President Descamps’ proposal, initially rejected any such idea of codification of rules to be applied by the Court. He pointed that “[i]f the Committee undertook to establish the actual rules to be followed by the judges, they would exceed their mandate, which was to organize the Court and not to make laws for it”. However, later he also agreed with Clauses 1 and 2 of the President's Report, ibid., at 293.

28. Footnote Ibid., at 294.

29. On this issue, De Lapradelle, another Committee member, also disagreed with Mr Root. He stated that Mr Root's solution, that the judges should act as per the recognized rules and in the absence of such rules they should declare a non liquet, seemed inadmissible, ibid., at 313.

30. Mr Root substantiated his argument by citing his two personal experiences. First, he gave the example of the Treaties of Arbitration, 1907, signed between the US on the one side, and Great Britain and France on the other. But it failed to be ratified by the US because it contained an open-ended clause which said that every justiciable dispute would be submitted to arbitration. The US vehemently opposed this as it gave unlimited powers to the Court to apply a conception of justice which might be incompatible with that recognized by the US. The second example he gave was of the International Prize Court which could not be established because Great Britain wanted to know the exact scope of the principles of justice and equity which the Court was to apply, ibid., at 313–14.

31. Footnote Ibid., at 310–11.

32. Footnote Ibid., at 310–11, the President quoted the example of the California Pious Funds case, in which the judgment was rendered in accordance with the principle of res judicata, which according to him was nothing but the application of general principles.

33. Footnote Ibid., at 315.

34. M. Root submitted his draft proposal at the 15th meeting of the Advisory Committee, ibid., at 344. The draft read as:

The following rules are to be applied by the Court within the limits of its competence, as described above, for the settlement of international disputes; they will be considered in the undermentioned order:

  1. 1. conventional international law, whether general or special, being rules expressly adopted by the States which are parties to a dispute;

  2. 2. international custom, being recognized practice between nations accepted by them as law;

  3. 3. the general principles of law recognized by civilized nations;

  4. 4. the authority of judicial decisions and the opinions of writers as a means for the application and development of law.

35. The President of the Committee approved the draft with changes only in point 4 by replacing the words “the opinions” with the words “coinciding doctrines”, ibid., at 331; it was the assembly of the League of the Nations that inserted a new paragraph in the Draft Article which empowered the Court to decide a case ex aequo et bono. For details, see Documents Concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption of the Assembly of the Statute of the Permanent Court: (not Including Material Collected For, or the Minutes of the Advisory Committee of Jurists) (Geneva, 1921).

36. He also observed that the phrase “civilized nations” was superfluous because law implies civilizations, ibid., at 335.

37. Footnote Ibid.

38. Footnote Ibid.

39. Footnote Ibid.

40. Third World Approaches to International Law [TWAIL] scholars like Bhupinder S. Chimni attribute a completely different meaning to the term “civilized nations” that occurs in art. 38(1) of the ICJ Statute. He argues that it “is a reminder of how the ‘formal’ and ‘material’ sources were historically tied together, facilitating the colonization of non-western nations”; see CHIMNI, Bhupinder S., “Customary International Law: A Third World Perspective” (2018) 112 American Journal of International Law 1 at 15. On TWAIL, also see ANGHIE, Antony and CHIMNI, Bhupinder S., “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts”, (2003) 2 Chinese Journal of International Law 1 at 77; CHIMNI, Bhupinder S., “Third World Approaches to International Law: A Manifesto” (2006) 8 International Community Law Review at 3.

41. Procès-verbaux of the Proceedings of the Committee, supra note 21 at 336.

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