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Published online by Cambridge University Press: 05 May 2021
Article 38, paragraph 1(b), of the Statute of the International Court of Justice (ICJ) is universally considered to be an authentic definition of custom as a principal source of international law, not least by the International Law Commission (ILC) in its recently completed work on the identification of international customary law. At the same time, though, the formula has constantly met with severe strictures concerning its very formulation. Given the text as it stands, this paradoxical dissonance cannot be satisfactorily resolved, but it can at least be tentatively explained by retracing the genesis of the clause a century ago, at the price, however, of a complete reappraisal of the whole of Article 38. Notoriously, Article 38 originated in a proposal of Baron Descamps, the president of the Advisory Committee of Jurists in charge of devising the Statute of the Permanent Court of International Justice (PCIJ). Yet the ambivalent but crucial role of the Descamps Proposal in drafting the article has not hitherto been realized. In fact, owing to the debates it aroused and to its misapprehension as a draft article instead of a merely exploratory basis of discussion, it has directly led to the shortcomings of Article 38 and especially of its clause on customary law.
The subject of this note was incidentally touched upon, over three decades ago, in an article that has successfully escaped any wider notice; see P. Haggenmacher, ‘La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale’, (1986) 90 Revue générale de droit international public 1, at 18–32. The author expresses his heartfelt thanks to Madame Martine Basset, Librarian at the Graduate Institute of International and Development Studies, Geneva, for her generous and unfailing assistance to an illectronic scholar. Thanks are equally due for the electronic assistance to Professor Chetail and his expert, infinitely patient, collaborator Ruth Harding, as well as to Professor Jorge Viñuales. A last word of thanks is due to Paula Baldini Miranda da Cruz for a most pleasant collaboration with this journal.
1 At least the first to get beyond the stage of a mere project; but see below, Section 3 and note 22.
2 H. Lauterpacht, Survey of International Law in Relation to the Work of Codification of the International Law Commission (1948); reprinted in H. Lauterpacht, International Law. Collected Papers, E. Lauterpacht (ed.), General Works vol. I (1970), at 472.
3 J. J. Quintana, ‘The International Court of Justice and the Formulation of General International Law: The Law of Maritime Delimitation as an Example’, in A. S. Muller, D. Raic and J. M. Turanszky (eds.), The International Court of Justice. Its Future Role After Fifty Years (1997), at 367.
4 G. M. Danilenko, Law-Making in the International Community (1993), at 30; see also at 39, 40 (‘constitutional rule’), 42 (‘a powerful constitutional provision’).
5 J-L. Halpérin, ‘Historical Sketches about Custom in International Law’, in M. Andenas, and E. Bjorge (eds.), A Farewell to Fragmentation. Reassertion and Convergence in International Law (2015), 459, at 467.
6 ‘… quest’ infelicissimo articolo’: D. Anzilotti, Corso di diritto internazionale vol. I (1928), at 95.
7 A. Pellet and D. Müller, ‘Article 38’, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice. A Commentary (2019), at 902–4, paras. 210–12.
8 ILC, Sixty-sixth session, Geneva, 2014, Second Report on Identification of Customary International Law, by Sir Michael Wood, Special Rapporteur, [A/CN.4/672], Draft Conclusion 2, at 6–7, para. 17; Draft Conclusion 3, at 8–15, paras. 21–30.
9 ILC, Draft Conclusions on Identification of Customary International Law, with Commentaries [A/73/10], 2018, at 124.
10 G. Abi-Saab, ‘La coutume dans tous ses états ou le dilemme du développement du droit international général dans un monde éclaté’, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago vol. I (1987), 53, at 58–9.
11 J. Crawford, ‘Chance, Order, Change: The Course of International Law. General Course of Public International Law’, (2013) 365 Recueil des Cours de l’Académie de Droit international, at 49–50.
12 Crawford, ibid., at 49. See in that sense Anzilotti, supra note 6, at 99.
13 Pellet and Müller, supra note 7, at 903–4, para. 212.
14 H. Lauterpacht, ‘General Rules of the Law of Peace’, in E. Lauterpacht, supra note 2, at 239.
15 H. Lauterpacht, ‘International Law – The General Part’, ibid., at 63.
16 H. Lauterpacht, ibid., at 239.
17 The most representative work on this conception of custom is probably G. F. Puchta, Das Gewohnheitsrecht (1828–37). By definition it was limited to firmly knit national (or possibly sub-national) communities. Like his colleague Friedrich Carl von Savigny, Puchta denied the existence of a proper international legal order, of a true Völkerrecht, admitting instead at most a Völker- oder Staatenmoral among friendly (especially Christian) countries; ibid., part I, bk II, ch. 2, at 142, para. 1.
18 H. Lauterpacht, supra note 2, at 239, fn. 2.
19 H. Meijers, ‘How is International Law Made? – The Stages of Growth of International Law and the Use of its Customary Rules’, (1978) 9 Netherlands Yearbook of International Law 3, at 12–13.
20 See especially Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986, para. 184.
21 For convenience’s sake, Art. 38 of the Statute of the ICJ is here reproduced in both its English and French versions:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of the law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
1. La Cour, dont la mission est de régler conformément au droit international les différends qui lui sont soumis, applique:
(a) les conventions internationales, soit générales, soit spéciales, établissant des règles expressément reconnues par les Etats en litige;
(b) la coutume internationale comme preuve d’une pratique générale acceptée comme étant le droit;
(c) les principes généraux de droit reconnus par les nations civilisées;
(d) sous réserve de la disposition de l’article 59, les décisions judiciaires et la doctrine des publicistes les plus qualifiés des différentes nations, comme moyen auxiliaire de détermination des règles de droit.
2. La présente disposition ne porte pas atteinte à la faculté pour la Cour, si les parties sont d’accord, de statuer ex aequo et bono.
This text is basically identical with Art. 38 of the Statute of the PCIJ, except for the relative clause in the preambular sentence, which was added in 1945, and for the letters at the head of the four lemmas in the first paragraph, which were initially numbers, the two paragraphs themselves being unnumbered. The specification added at the beginning of the provision in 1945 (‘whose function is to decide in accordance with international law such disputes as are submitted to it’) has no bearing whatsoever on the meaning either of the article as a whole or any of its four clauses individually. It has not the effect, in particular, to transform the ‘general principles of law’ of the third clause into a formal source of international law; after 1945, they just remain what they had been under the former Statute, a simple category of rules apt to serve, owing to their general recognition in municipal legal orders, as the material source for creating rules to be applied between the litigant states, in the absence of genuinely international rules gathered from the first two categories. As to the so-called ‘general principles of international law’, they cannot, contrary to a wide-spread opinion, be tortured into the third clause as it stands. They constitute not only genuine international law but general international law par excellence, and as such (whatever their precise normative origin) their natural place is in the second clause as initially understood by Descamps; for which see below, Sections 7 and 8.
22 The first two paragraphs of this provision read as follows:
If the question of law to be decided is covered by a Treaty in force between the belligerent captor and a Power which is itself, or whose national is, a party to the proceedings, the Court is governed by the provisions of the said Treaty.
In the absence of such provisions, the Court shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.
There is of course an obvious difference ratione materiae between the Prize Court, with its highly specialized and clearly circumscribed field of action, and the Permanent Court, that was to have a general jurisdiction covering the whole of international law. This contrast is even greater with regard to tailor-made arbitral agreements.
23 This provision reads as follows: ‘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.’
24 Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 26 th – July 24 th , 1920, with Annexes (1920) (hereinafter Procès-Verbaux). For a most illuminating (and often delightfully facetious) perspective on the Advisory Committee’s work (as gathered from the reports of Åke Hammarskjöld, a member of the Advisory Committee’s secretariat, to J. A. van Hamel, head of the Legal Section of the League of Nations Secretariat in Geneva), see O. Spiermann, ‘“Who Attempts too Much Does Nothing Well”: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice’, (2003) 73 British Yearbook of International Law 187–260. Equally helpful is M. O. Hudson’s monumental The Permanent Court of International Justice. A Treatise (1943), at 93–129, 601–30.
25 J. B. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists. Report and Commentary (1920), at 1.
26 Reference to the French text is indispensable. The English translation is often very approximate, although it proved to have its own importance in the drafting of the article, as will appear later on. The Committee’s debates were held in French (except for Root’s interventions), and French was initially to be the only official language of the Court. English was added only in the last phase of the Statute’s elaboration in the League of Nations; see on this below, Section 12. From the language point of view the Advisory Committee’s deliberations may be seen as a symbolic watershed in time. The Hague Conventions of 1899/1907 and the London Declaration on Naval Warfare of 1909 were drawn up and authenticated in French, the 1923 Hague Rules on Air Warfare were devised in English only. By 1920, a good knowledge of French was still part and parcel of a proper education, like table manners and dress codes, in countries considering themselves ‘civilized’.
27 Procès-Verbaux, supra note 24, at 306. The English translation runs as follows:
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. conventional international law, whether general or special, being rules expressly adopted by the States;
2. international custom, being practice between nations accepted by them as law;
3. the rules of international law as recognised by the legal conscience of civilised nations;
4. international jurisprudence as a means for the application and development of law.
28 See supra note 22. To be precise, that provision is not quite devoid of some ‘ado’, but the conditional clauses prefixed to each type of rules it enumerates (‘If …’; ‘In the absence of …’) are meant to command their order of application in a given case, not to commend their general applicability by the ‘judge’ as in the Descamps Proposal.
One could mention in the same vein Art. 2 of the so-called Five Powers Plan presented by Denmark, The Netherlands, Norway, Sweden, and Switzerland in February 1920 under the terms of Art. 14 of the League of Nations Covenant:
1° Lorsque la question de droit sur laquelle la Cour doit statuer est prévue directement ou indirectement dans un traité en vigueur entre les Parties, ce traité forme la base de la sentence.
2° A défaut de dispositions à cet égard, la Cour applique les règles du droit international en vigueur ou, si des règles de cette nature n’existent pas pour la question dont il s’agit, la Cour juge d’après ce qui, à son avis, devrait être la règle du droit international.
The end of the second paragraph was clearly inspired by Art. 1 of the Swiss Civil Code of 1907, the author of which, Eugen Huber, was a member of the Swiss delegation to the Five Powers Conference at The Hague in 1920; see Hudson, supra note 24, at 113–14. The Five Powers Plan was equally present in the Advisory Committee’s deliberations, the more so as, unlike the Prize Court Convention of 1907, it was entirely conceived as a blueprint for the future court’s statute.
29 Procès-Verbaux, supra note 24, at 293. Yet too much weight should not be attached to these expressions, especially since Descamps apparently wished his Proposal to be adopted as it stood, following Å. Hammarskjöld’s report to van Hamel; Spiermann, supra note 25, at 213. In all probability, however, his stubbornness only concerned the general structure of the Proposal and the substance of the four clauses, not their precise wording.
30 Emphasis added.
31 Emphasis added; translation supplemented in conformity with the original French.
32 Emphasis added. The ‘nations’ are ‘peoples’ in Descamps’ original French text. A clear gradation runs through his first three clauses, from states adopting conventional rules, to nations practicing customary law, to the ‘legal conscience of civilized peoples’ recognizing foundational principles, beneath the level of voluntary, more or less arbitrary regulations. The nowadays much-decried adjective ‘civilized’ was a nineteenth century legacy still currently received during the interwar period. But see the already sceptical remarks by Lapradelle in the Procès-Verbaux, supra note 24, at 335.
33 The expression ‘as a means’ initially rendered Descamps’ ‘comme organe’, both being in the singular. In the final draft scheme both versions appear modified and in the plural (‘as subsidiary means’/ ‘comme moyens auxiliaires’) to make allowance for the teachings of the publicists that were joined to international case law (although the French expression was in the end curiously turned back to the singular); see more on this infra note 51. Styling jurisprudence an organ had meant more for Descamps than just considering it prosaically a means (moyen, in French) for applying and developing international law. He rather saw it as a law-ascertaining agency, just as Puchta called his various Rechtserkenntnisquellen ‘organs’ in this abstract, nowadays unusual acceptation; see supra note 17), and especially part II, bk III, ch. 1, at 19–20, para. 3, where the jurists, as a specialized class, are declared the ‘organ’ sounding and uttering the common legal convictions of a nation (at least in a world of growing complexity such as Puchta’s Germany, where a general popular awareness of the law was no more warranted). See also the text below, after the next paragraph, and note 35, where jurisprudence appears as ‘instrument de précision du droit des gens’.
34 The first purpose of the Institut de Droit International, of which Descamps was an associate member, was (according to its initial statutes of 1873) to favour the progress of international law ‘en s’efforçant de devenir la conscience juridique du monde civilisé’; later, as from the amended statutes of 1880, this aim was to be endeavoured ‘[e]n travaillant à formuler les principes généraux de la science, de manière à répondre à la conscience juridique du monde civilisé’. The phrase also figures in the famous Martens Clause included in the preamble of the 1899/1907 Hague Convention on the Laws and Customs of War on Land. It is probably translated from the German Rechtsbewusststein.
35 In his speech of 2 July, Descamps alluded to ‘existing international jurisprudence as a means of defining the law of nations’ (‘en tant qu’instrument de précision du droit des gens’); Procès-Verbaux, supra note 24, at 322–3 (emphasis added). The reference to the Court’s own future decisions, as implied by the final wording of clause 4 (currently letter d, starting with the proviso ‘subject to the provisions of Article 59’) was not yet clearly contemplated at that stage. No more than Art. 59 itself did the proviso figure in the Draft Statute devised by the Advisory Committee. Both were inserted only during the last phase of the Statute’s further elaboration in the League of Nations (see on this below, Section 12). Interestingly, however, Ricci-Busatti had already envisaged the reference to the Court’s own case law in his amended (but discarded) proposal of 3 July 1920 (‘The Court shall take into consideration the judicial decisions rendered by it in analogous cases …’); Procès-Verbaux, ibid., at 351; see also infra, note 74. Since he was part of the drafting team also in the League of Nations phase, the final (slightly incongruous) formulation of the fourth clause of Art. 38 may well owe something to him.
36 These did not figure in the Proposal, but, in his statement of 2 July in defence of it, Descamps referred to ‘the concurrent teaching of jurisconsults of authority’ as spelling out the ‘law of objective justice’, in conjunction with the ‘legal conscience of civilised nations’ (Procès-Verbaux, ibid., at 323, 324).
37 Procès-Verbaux, ibid., at 324. Revealingly, Descamps reproduced this sentence almost verbatim, two years later, in a communication to the Institut de France, in which he openly advocated the idea of natural law: ‘Quelqu’abus que l’on ait fait du droit naturel, il n’est pas possible de ramener la science du droit à une pure collection de faits positifs sans autre norme admissible, et il importe de sauvegarder l’existence, au sein de l’ordre juridique, d’une loi de nature et de raison, dans la mesure où sa voix est assez claire pour promulguer certaines règles fondamentales comme nécessairement liées à l’existence humaine et à l’économie essentielle des rapports sociaux.’ Le monde du droit. Essai sur la gravitation juridique et l’évolution créatrice, (1922), at 17. See also, for further thoughts on the same line, Descamps’ Hague Course, ‘ Le droit international nouveau. L’influence de la condamnation de la guerre sur l’évolution juridique internationale’, (1930-I) 31 Recueil des Cours de l’Académie de Droit international 399, at 404–37.
38 Eleventh to thirteenth meetings (29 June–1 July 1920), at 233–93.
39 This provision reads as follows in its initial state, before the article was revised in 1924 in order to include judicial settlement in addition to arbitration: ‘Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration.’
40 It should be remembered, however, that the Roman ‘N.L.’ referred not to the lack of applicable rules – these were fixed, in classical private law proceedings, by the formula agreed upon by the parties under the aegis of the praetor – but to the facts of the dispute appearing inextricable to the appointed judge, who, after swearing sibi non liquere, was discharged from his judicial mission by the preaetor. This was certainly not a daily occurrence, but seems to have been a real possibility in Roman practice (see Aulus Gellius, Noctes Atticae (1560), bk XIV, ch. 2, at 444), contrary to non liquet situations as understood in modern international law, which have proved to be largely theoretical. There is some truth in Gaston Jèze’s sally, as jestingly reported by the late Paul Reuter in a lecture delivered sometime during the 1980s at the Graduate Institute in Geneva: ‘Si le juriste cherche, il trouve’!
41 Procès-Verbaux, supra note 24, at 286.
42 Root had in mind para. 2 of that provision; he was ready to admit the generally recognized ‘rules’ of international law mentioned therein, but not the ‘general principles of justice and equity’; see supra note 22. For the reasons indicated in note 22, Art. 7 was not entirely comparable with the future Art. 38 of the Statute, owing to its restricted and highly technical subject matter, which called for a detailed codification, as was subsequently attempted in the London Declaration of 1909, but to little avail.
43 Advisory Committee, Procès-Verbaux, supra note 24, at 287.
44 Ibid., at 294.
45 Ibid.
46 Ibid., at 295, 334. Art. 2 of the Five Powers Plan (supra note 28) would have been more to Phillimore’s taste than Descamps’ Proposal, except for the ‘legislative’ element in its second para. (Procès-Verbaux, ibid., at 295).
47 Ibid., at 322–5.
48 Ibid., at 317.
49 Ibid., at 344. While the phrase was a diplomatic success by securing an almost instant agreement in the Advisory Committee, it has given rise ever since to a variety of diverging interpretations, mostly beyond the real intentions of its authors. In fact, rather than proceeding from profound reflections, it was contrived overnight in order to cut the impending debate short. It had to be efficient, not profound. Two considerations were paramount: converting Descamps’ airy ‘legal conscience’ into more tangible, positive ‘principles’, but without falling back on international custom, which figured already in the second clause. Hence those ‘maxims of law’ proffered in explanation by Phillimore as being supposedly ‘accepted by all nations in foro domestico’. This calls to mind the transnational ius gentium of the Romans, except that they thought of common legal institutions rather than of abstract principles. In fact recourse to such principles rooted in municipal law was nothing really new, it was quite common and almost instinctive in nineteenth century arbitral practice. Extracting such common principles from national legal sediments and recycling them on the international plane is of course nearer to impressionism than to comparatism – contrary to what is usually held in positivistic orthodoxy. See also supra note 21.
50 Ibid., at 332.
51 Procès-Verbaux, at 336–7, 344. The ‘writers’ became ‘publicists’ in both languages as from the Root–Phillimore plan of 14 July 1920; see Procès-Verbaux, at 548, and below, Section 10. This doctrinal element is thus basically an Anglo-American contribution to the fourth clause, although Descamps had already mentioned, in his oral statement of 2 July, ‘the concurrent teaching [la doctrine concordante] of the authors whose opinions have authority’ (Procès-Verbaux, at 323). But instead of being just a ‘subsidiary means for the determination of rules of law’, these authoritative teachings were in his mind direct evidence of ‘objective justice’; see also supra note 36. Strangely, the words ‘of the various nations’ did not figure in the original French version of the Statute in 1920; their (equally superfluous) equivalent, ‘des différentes nations’, was only inserted upon the 1929 revision of the Statute (Hudson, supra note 24, at 195).
52 This specification, after being dropped altogether at one point, was later revived upon Descamps’ proposition, and replaced after some vacillations by the current formulation ‘as subsidiary means for the determination of rules of law’. Incomprehensibly, the ‘subsidiary means’ were finally turned into the singular ‘comme moyen auxiliaire’ in the French version, during the last stage in the League of Nations; see also supra note 33.
53 Ibid., at 323, 324; see also 310 (‘la loi fondamentale du juste et de l’injuste, profondément gravée au coeur de tout être humain et qui reçoit son expression la plus haute et la plus autorisée dans la conscience juridique des peuples civilisés’).
54 See Art. 2 of the Statute of the Court.
55 The two components are not, however, equivalent by their volume. Customary law was still generally perceived as largely dominating conventions. See, e.g., H. Bonfils, Manuel de droit international public (1912), at 24 (‘Les traités n’occupent qu’une place secondaire parmi les sources du droit international public’). This was also Descamps’ opinion, see below, Section 8, text at note 67.
56 English translation modified in conformity with the French original.
57 Justinian, Digest, 1, 3, 32 (Iulianus). See also P. Haggenmacher, ‘Coutume’, (1990) 35 Archives de philosophie du droit 27–41, esp. at 29–33.
58 Ibid.
59 Procès-Verbaux, supra note 24, at 584, 605.
60 Justinian, Digest, 1, 3, 35 (Hermogenianus).
61 Justinian, Institutes, 1, 2, 9. Conversely, Papinianus described law in contractual terms as communis rei publicae sponsio; Digest, 1, 3, 1.
62 Ibid.; see also Digest, 1, 3, 33 (Ulpianus).
63 Lord Phillimore, ‘Scheme for the Permanent Court of International Justice’, (1920) 6 Transactions of the Grotius Society 89, at 94 (‘Established international common law’).
64 Descamps’ distinction between general and special conventional law (see supra note 27) could possibly be traced to Bonfils’ Manuel de droit international public, (supra note 55, at 24–5). Special treaties, for him, were merely contractual in nature, whereas general (or collective) treaties were intended to be quasi-legislative for the whole community of nations (subject, of course, to the principle of relativity of conventions). For a similar distinction see P. Pradier-Fodéré, Traité de droit international public européen et américain, vol. I (1885), 82, para. 27, who predicated it on the type of ‘interest’ involved in the transaction, either peculiar to the contracting parties or virtually affecting the whole community of nations. The same distinction figures, more specifically with regard to arbitral agreements, in Art. 19/40 of the 1899/1907 Hague Convention I for the Pacific Settlement of International Disputes. Oddly the French ‘particuliers’ was rendered there in English by ‘private’ treaties.
65 Procès-Verbaux, supra note 24, at 322. English translation rectified in conformity with the French text.
66 Ibid., (emphasis added). English translation rectified.
67 Ibid. English translation rectified in conformity with Descamps’ corresponding sentence, which reads as follows: ‘puisqu’elle n’est que l’expression des conventions [sic] juridiques et des besoins sociaux des nations, s’affirmant dans leur commune et constante manière d’agir’. The French text has conventions instead of convictions, which most probably is an undetected mistake. Descamps certainly meant convictions, as shown by his above-mentioned article (supra note 37, at 18) which reproduces this passage almost identically. The expression ‘convictions juridiques’ also occurs in others of Descamps’ writings; see, e.g., Revue générale de droit international public, vol. VII (1900), at 725. The Procès-Verbaux of the Advisory Committee were prepared in great haste and are therefore unreliable. Toward the end of Descamps’ speech it is, conversely, the French convictions which is erroneously rendered by conventions in English; ibid., at 324.
68 For the text, see above, Section 3.
69 In his closing address on 24 July Descamps referred to Descartes’ celebrated doute méthodique having presided over the Advisory Committee’s work; Procès-Verbaux, supra note 24, at 752.
70 See Root’s testimony after Phillimore’s death in 1929, as quoted by Spiermann, supra note 24, at 254, fn. 420.
71 See supra, at note 49.
72 Procès-Verbaux, supra note 24, at 344.
73 Ibid., at 666 (emphasis added).
74 Ibid., at 351. The precise authorships of the proposition are not absolutely clear from the document as reproduced in the Procès-Verbaux; but Ricci-Busatti’s imprint is obvious enough to ascribe the whole proposition to him.
75 Ibid., at 344; see also infra, text at note 84.
76 West Rand Central Gold Mining Company v. The King (1905) and The Paquete Habana (1900). Both cases were quoted by J. Brown Scott in his report to the Carnegie Endowment for International Peace, supra note 25, at 108–10.
77 Procès-Verbaux, supra note 24, at 548.
78 Ibid., at 567; see also ibid., at 636.
79 The ‘nations’ remain of course implied as the sole authors of the practice; the intention was certainly not to make room for other possible agents creating customary rules, as has sometimes been contended.
80 Procès-Verbaux, supra note 24, at 636.
81 Ibid., at 655, 680.
82 Ibid., at 729.
83 Interestingly, by a sort of French connection, this prefigures A. Pellet’s explanation, supra note 13, at 903–4.
84 Procès-Verbaux, supra note 24, at 344.
85 Ibid.
86 Ibid., at 338.
87 Ibid., at 351.
88 Ibid., at 548.
89 Ibid., at 567.
90 Ibid., at 730.
91 Ibid., at 567 (emphasis added). By the same token the epithet special, qualifying ‘international conventions’ alternatively with general, was changed to particular in the English text, Descamps’ spéciales being maintained in the French version. See also, supra note 64.
92 See, e.g., C. Parry, The Sources and Evidences of International Law (1965), 28–9; A. D’Amato, The Concept of Custom in International Law (1971), at 109.
93 For a similar suggestion, see Pellet, supra note 7), at 891, para. 184, although he fails to perceive the reasons of the ‘somewhat tortuous formulation’ of the clause, which appear only if one delves into the strata of its genesis. Apart from that, it does need some mental contortions to consider, as he does, that ‘the formula used in Article 38 unambiguously defines what a treaty – or a convention – in force is’, even if only ‘to the end of adjudication’ (ibid., at 890, para. 180; emphasis added).
94 Procès-Verbaux, supra note 24, at 689.
95 Ibid., at 691.
96 Namely Messrs Adachi, Fernandes, Hagerup, Loder, and Ricci-Busatti; cf. Spiermann, supra note 24, at 244–5.
97 See above, Section 8.
98 See supra text at note 79.
99 In his defence of objective justice, inter alia, as an interpretative principle for treaties, Descamps asserted: ‘… la justice objective, – je dirais l’équité, si je ne craignais d’ouvrir la voie à des équivoques, sachant que le terme est diversement interprété’. Procès-Verbaux, supra note 24, at 324 (emphasis added).
100 See above, Section 10.
101 This seems to be confirmed by a letter of Å. Hammarskjöld to a member of the Legal Section of the League of Nations in which he vented his feelings in the following terms: ‘We are going to finish tomorrow, but I think everybody admits that it is a scandal. During the reading of Lapradelle’s Report it has become perfectly clear that the majority of the members do not know in the least what they have signed: there are as many interpretations of the principal points as there are members.’ Spiermann, supra note 24, at 239.
102 Procès-Verbaux, supra note 24, at 295 (Lapradelle, Phillimore), 318 (Descamps), 332 (Ricci-Busatti), 333 (Phillimore), 351 (Phillimore, Ricci-Busatti).
103 But not earlier, at least not in the Hague Court’s case law. The Lotus case of 1927 does contain an often-quoted allusion to the two-elements doctrine (probably induced by Anzilotti, whose hand is present in the whole judgment), but it is not clearly articulated nor linked up with Art. 38 of the Statute. This explicit linkage was only effected by the ICJ in the Asylum Case of 1950. Even if that Colombo-Peruvian dispute merely concerned an alleged regional custom, the Court did not hesitate to deal with it under the customary law clause of Art. 38, identifying the latter expressly with the two-elements approach (though not yet referring to the concept of opinio iuris sive necessitatis with its ‘subjective’ belief connotation, as it was to do in the 1969 Continental Shelf judgment): ‘The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law”.’ ICJ, Asylum case (Colombia/Peru), at 276–7. The Court’s momentous statement can be neatly traced to Georges Scelle’s pleading for Peru, in which he heavily insisted on the ‘subjective’ element having to bolster up a given practice for it to generate a customary rule; of course, he powerfully built up this condition only to deny its realization in that case (ICJ, Asylum case (Colombia/Peru), Pleadings, Oral Arguments, Documents, vol. I, 118–20). Scelle’s argumentation goes back to his contribution to the Mélanges honouring François Gény, where he asserted that para. 1(2) of Art. 38 of the PCIJ’s Statute ‘se réfère implicitement aux éléments essentiels de la formation coutumière du droit: répétition concordante d’actes juridiques autonomes accomplis par le sujet de droit; éléments psychologiques d’acceptation de la règle ainsi dégagée comme étant de droit, sans que le texte indique assez nettement, selon nous, que cette acceptation est le fait de l’agent lui-même, avant d’être celui de l’opinion commune’. G. Scelle, ‘Essai sur les sources formelles du droit international’, (1935) III Recueil d’études sur les sources du droit en l’honneur de François Gény 400, at 421. Apart from establishing an explicit connection with Gény’s two-elements doctrine, the quote also shows that the ‘general practice’ of the customary law clause of Art. 38 was henceforth understood to relate specifically to individual rules and no more in general to Descamps’ ‘common practice of nations’. This is absolutely in line with Gény’s conception, which aimed at ascertaining individual customary rules. It may be observed that Scelle stated at the head of his tribute to Gény that he had beforehand read again the latter’s Méthode d’interprétation et sources en droit privé positif (1899), which he probably hadn’t done since his early years. There is thus a clear thread leading, over half a century, from Gény’s teachings to the ICJ’s statement. Which is at the same time a nice illustration of ‘doctrine’ creeping into so-called ‘practice’ and directly shaping it from behind the scenes.
104 See Spiermann, supra note 24, at 203, 209, 219–20, 221.
105 Ibid., especially at 223, 253. Looking back on their venture six years later in a letter to Root, Phillimore almost impishly called the Permanent Court ‘your and my Court of International Justice. I think we may, between ourselves at any rate, call it that; yours at any rate’; quoted by Spiermann, ibid., at 254, fn. 420.
106 Procès-Verbaux, supra note 24, at 295, 315 (Phillimore), 295–6 (Lapradelle). It may be observed in this regard that the Projet for an Arbitral Court of Justice (Cour de justice arbitrale, also named Judicial Arbitration Court in other English translations of the official French text) annexed to a Voeu in the Final Act of the Second Peace Conference of 1907 – which, though never established, was meant as a step away from the existing Permanent Court of Arbitration toward a Permanent Court of Justice – did not contain any provision on the law to be applied. Contrary to what happened with the Prize Court Convention, in which that point was crucial (and proved to be fatal), nobody cared for it in this case; the essential question, on which the project foundered, was how to elect the judges.
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