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  • Mohit Khubchandani

A case more curious than the curious Case Of Benjamin button: The relationship of general......

This post has been authored by Mohit Khubchandani. Mohit Khubchandani currently works as a Research Fellow at the United Nations International Law Commission. He is an Advocate at the Supreme Court of India and an International Disputes Resolution Attorney with a working experience in International Litigation and International Arbitration with the Government of India and Public International Law policy-making with several United Nations' agencies in various capacities and portfolios. He holds an LL.M. in International and Environmental Law from Stanford Law School.


A case more curious than the curious Case Of Benjamin button: The relationship of general principles of law with other sources in Article 38 of the Statute of the International Court of Justice.


INTRODUCTION


Did the chicken come first, or the egg? Did General Principles Of International Law (“GPIL”) come first and inspired the formation of Customary International Law (“CIL”) or the other way around? Is CIL ageing in reverse like Benjamin button to breakdown into simpler forms and form the tenets of municipal law in the form of GPIL? Is there any need at all for considerable state practice and opinio juris in order to distinguish CIL and GPIL. More largely, is there a role of GPIL on all the sources of International Law?


The following questions, amongst others, whether satisfactorily or not, have already been answered by the International Law Commission:

(a) The distinction between CIL and GPIL

(b) The questions posed on the usage of the term ‘civilized’ in the phrase “general principles of law recognized by civilized nations”.

(c) The inconsistency in terms such as “principle”, “general principle”, “general principle of law”, “general principle of international law” and “principle of international law” are often found in practice.

Therefore, while giving my opinions and critique on these briefly in Part - I, I shall also address the following issues in detail in Part - II, which are unclear and some even still unaddressed by Public International Law:

(d)Are GPILs comparable to Caterpillars while transforming to CIL, being butterflies?

(e) Alternatively, are GPILs comparable to Regional customs or Instant customs?

(f)Notwithstanding all of the above, is the role of Article 38(1)(c) of the Statute of the ICJ whilst enabling other sources of International Law paramount?


A. PART I: Overview and brief critique of the already deliberated issues by the international law commission:

i. The distinction between CIL and GPIL is not required academically, only operationally


The ILC has acknowledged that it is difficult to distinguish these two notions.[1] I would agree with this determination, but would also go on to argue that the distinction is not required, at least academically. According to me, the more we deliberate to academically distinguish them, the less credence Articles 38(1)(b) and (c) as drafted by the Court will hold.


a. Vagueness is intentional, as reflected from opinio juris and conduct of international adjudicative forums


The question that whether the said distinction inherits merit[2] has not been answered in the affirmative by international legal scholars. The dichotomy is present since the very outset by the drafters of the ICJ Statute and is arguably intentional.[3] According to Sir Ian Brownlie, a “rigid categorization of sources is inappropriate.” He regards legal principles primarily as “abstractions”[4] International scholars have stated that the use the term “principles” is in order to denote the general character and fundamental importance of the norm in question.[5]


However, I do agree that operationally, these two terms must be distinguished, and I would discuss it Part – II of the paper.


ii. The term ‘civilized’ in the phrase “general principles of law recognized by civilized nations” in Article 38(1)(c) is questionable and calls for an amendment


The international community in unison has reckoned the term to be anachronistic. The current position of states is the same, which have departed from that term in certain treaties subsequent to the adoption of the Statutes of the PCIJ and the ICJ, such as the International Covenant on Civil and Political Rights and the Rome Statute of the International Criminal Court.[6]


Whilst my audience might wonder why I have chosen to address this settled issue amongst many others addressed by the ILC in its recent 75-page report, I think that it is the most pivotal point to get the ball rolling, to either rescind or amend Article 38(1)(c) of the Court.


I am of the belief, that this glaring error in the phraseology of the Article calls for tabling this issue before the United Nations General Assembly (UNGA) to amend Article 38. Now whilst the proposers will have the eyes and ears of the member states, other issues such as expanding the scope of Article 38(1)(b) to include GPIL within it, or adding an explanatory note to clarify the operation of both the terminologies concurrently could be discussed in the said resolution before the UNGA. This also relates to the following third question.


iii. The inconsistency in terms such as “principle”, “general principle”, “general principle of law”, “general principle of international law” and “principle of international law”


a. Rephrasing Article 38(1)(c) as ‘supplementary principles’ of International Law


It is widely acknowledged that that GPILs are a supplementary means, albeit the term is refrained from usage in Article 38(1)(c), in order for it to not be confused with Article 38(1)(d).[7] I believe that, assuming the topic of GPIL is tabled before the UNGA, this question should also be addressed. Contrary to the hesitance of the international community and the ILC; coining the phrase as ‘supplementary principles of international law’ would settle the debate forever. My suggestion is bolstered by the long-standing distinction that divides Articles 38(1)(a) and (b) being primary sources from Articles 38(1)(c) and (d) lacking the ability to create rights and obligations ex nihilo, whenever the hierarchy of the sources of International Law is discussed.[8]


b. Alternatively, integrating Article 38(1)(b) and (c) is consistent with the travaux preparatoires of Article 38.


Even though I propose two alternate approaches here, I argue vehemently for the latter, which shall also form a basis of Part – II of my paper. This is buttressed by the fact that when during the drafting of Article 38, it was suggested that the sources should be considered in a specific order, with treaties prevailing over custom and custom prevailing over general principles, the proposal was rejected.[9]


Therefore, this brings to Part – II, where I begin by questioning the pseudo-distinction itself rather than questioning the need for distinction in the two sources. However, I do suggest an operational distinction thereby placing due credence on both sources and their roles on each other, as well as the other sources.


B. PART B – Issues Unsatisfactorily Answered And Unanswered By The International Community

iv. Caterpillar -> Butterfly: GPIL -> CIL


The heading of this sub-section may look cryptic, but is only befitting to explain the evolution of CIL. Some species are born and they grow both intellectually and physically; whilst there are others, like butterflies, which completely evolve in shape, size, colour and abilities from being a cocoon -> larva -> caterpillar -> butterfly. However, all these four stages are imperative and play equally significant roles in the life-cycle of a butterfly.


Similarly, General principles -> Regional or Instant customs -> Customs -> Treaties, all have equally significant and irreplaceable roles to play in fostering International Law, for which reason hierarchies are discouraged. A classic example of this is the principle of Good Faith, which emanated in municipal law as a general principle and is now codified in Article 31 of the Vienna Convention on Law of Treaties, 1969 and is also a part of CIL. This explains the role of GPIL, as initiators of norms being crystalized in International Law.


However, sometimes, GPILs are created from international law, a top-bottom approach, which in this context I consider to be the Benjamin-Button syndrome. Let us consider this in the following two sections:


v. Are GPILs comparable to Regional customs or at least Instant customs?


a. GPILs as Regional CIL


The ICJ has recognized that, regional customary norms mean rules, which are followed in some region.[10] This approach allows flexibility in encouraging groups of countries to develop rules which reflect their particular needs, interest and capacities.[11] It is only obvious, that these customs have lesser state practise for them to be reckoned as CIL. Therefore, these RCILs could be argued to be GPILs for the purposes of entire world. Now, let us endeavour to further breakdown CIL. In the next section I argue, that what if State practise is not required at all to make an instant custom?

b. GPILs as instant customs created through Grotian moments


The term “Grotian Moment,” was first coined by Princeton Professor Richard Falk[12], on the name of Dutch scholar Hugo Grotius (1583–1645) who is widely considered to have laid the intellectual architecture for the Peace of Westphalia, which launched the basic rules of modern international law.[13] Westphalia has unquestionably emerged as a symbolic marker and Grotius as an emblematic figure of changing historical thought. ‘Grotian Moment’ thus seems like an apt tag for transformational improvement in which new rules and doctrines of CIL surface with infrequent swiftness and approval.


One such situation arose in the 1960s when the United States and Soviet Union first developed the abilities to launch rockets into outer space and to place satellites in Earth's orbit.[14] In response to this new technological development, the UNGA adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (Outer Space Treaty). Though state practice was scant in the early years of space exploration, ICJ Judge Manfred Lachs concluded that, "it is difficult to regard the 1963 Declaration as a mere recommendation: it was an instrument which has been accepted as law.”[15]


Therefore, another arguable position would be, that if a general principle is put to test in the UNGA and secures the majority of the members’ votes, then it would be enough for it be practiced as an instant custom, if it is of the kind which requires an urgent escalation as CIL. For instance, the Responsibility to Protect (R2P) has been advocated to be a part of CIL through this justification.


C. Conclusion


vi. Notwithstanding all of the above, the role of Article 38(1)(c) of the Statute of the ICJ whilst enabling other sources of International Law is paramount


All of the above propositions are mere suggestions which ought to be pondered upon. However, it cannot be denied that GPILs play a crucial role in the formulation and evolution (as explained above) of International Law. This goes to the definition of sources of international law, which can be defined as the “processes by which international legal norms are created, modified, and annulled.”[16]


The making of GPILs [Art. 38 1(c)] initiates a process. Even if it doesn’t see its twilight [Art. 38(1)(b)], it still exists in the form of conventions [(Art. 38(1)(a)]. There is a reason why International Courts and the most highly qualified publicists have to then fill in [Art. 38(1)(d)] to state which provisions of a convention are customary and which are not. This best explains the role of GPILs, which are comparable to the foundations of a complex structure.


ENDNOTES:

[1]† All views expressed in this note are not indented to deprave the views of other(s). They solely reflect the understanding of the author, which may be subject to various interpretations. The author would like to acknowledge the sources relied upon by him from the: ‘First report on general principles of law’ A/CN.4/732, 5th April, 2019 to be adopted by International Law Commission in its Seventy-First Session in Geneva, 2019, which formed a basis for his understanding. The author has following The Bluebook: A Uniform System of Citation, 19th Ed., 2010, throughout the paper.


[1] First report on Formation and Evidence of Customary International Law, International Law Commission, 65thSess. at 17, A/CN.4/663 (2013)


[2] A. Jakab, Re-defining principles as ‘important rules: A Critique of Robert Alexy, in M. Borowski, On the Nature of Legal Principles, 147-51, 159 (2010) Principles Of International Environmental Law, 149-150 (1995) (asserting that the concept of principles logically distinct from rules can be regarded as “simply superfluous”; according to Jakab, the designation as “principle” underscores importance, but it does not imply anything about logical structure)


[3] L. Phillimore, PROCÈS-VERBAUX, 335 (1920) (stating that by “general principles of law” he had intended to mean “maxims of law”)


[4] J. Crawford, Brownlie’s Principles Of Public International Law, 37 (2012)


[5] Giorgio Gaja, General Principles of Law, Max Planck Encyclopedia of Public International Law, 31 (2013)


[6] First report on General principles of Law, International Law Commission, 71st Sess. at 6, A/CN.4/732 (2019)


[7]Id. at 7.


[8] J Klabbers, International Law, 25 (2013)


[9] Michael Akehurst, The Hierarchy of the Sources of International Law, Brit. Y.b. Int’l L. 274 (1975)


[10] Asylum case (Colombia v. Peru) (Judgment), 1950 I.C.J. 266 at 276.


[11] P. Sands, Principles Of International Environmental Law, 149-150 (1995)


[12] MP. Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments, 17 (2013)


[13] H. Bull, et. al., Hugo Grotius & International Relations, 17 (1992)


[14] J. O’ Brien, International Law, Routledge, 463-64 (2001)


[15] Manfred Lachs, The Law of Outer Space: An Experience, Contemporary Law-Making, 25, Journal of space Law, 2 (1997).


[16] Samantha Besson, Theorizing the Sources of International Law, in The Philosophy of International Law, 169-70 (2010)

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