von ANIKA SEHGAL
The term “civilised nations” in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ Statute) has long been criticized for its colonial undertones and exclusionary implications. The present article first examines the historical and interpretive challenges posed by the phrase “civilised nations” in Article 38(1)(c) of the ICJ Statute. It then evaluates recent state practice and the International Law Commission’s (ILC) draft conclusions to assess whether such developments can effectuate a formal modification of the Statute’s language and meaning.
Background and Jurisprudence of the Court
Recently, the International Law Commission received comments and observations from governments on its draft conclusions on general principles of law. It is evident from the observations that states have broadly accepted that the phrase “civilised nations” is archaic, and have suggested what phrase should replace it. The same, if effectuated, would mark a fundamental change in international law, being a change in the sources that form international law itself. This raises a significant question: can it be stated that the Statute of the International Court of Justice (ICJ Statute) stands modified? If so, on what legal basis can such a modification be said to occur?
Article 38 of the ICJ Statute lists down the authoritative sources of international law that the ICJ shall rely upon when taking its decisions. Article 38(1)(c) provides ‘the general principles of law recognized by civilized nations’ to be one such source. This clause gives rise to various questions regarding the source, formation, and application of these sources in practice under International Law. The recent work of the ILC is focused on resolving some of these- the steps of formation of a general principle, whether the same can be formed arising in the international legal system, and regarding the relevance of the phrase ‘civilised nations’. The present post concerns the third out of these, i.e., the modification of the phrase “civilised nations”.
To understand the enduring controversy surrounding ‚civilised nations‘, one must revisit the historical context in which the ICJ Statute was drafted—an era when colonial hierarchies shaped legal legitimacy. Even the first report by the ILC on this topic, hence acknowledged this background and recognised that the term ‘civilized nations’ was ‘intended to exclude from consideration the legal systems of the countries not considered to be civilized’ (Para 177). Thus, the phrase effectively limited the source of general principles to those common across major Western legal systems.
As per the Vienna Convention on the Law of Treaties (VCLT), a treaty is interpreted in “accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. (Article 31) In case of any ambiguity in the interpretation of a treaty, the travaux preparatoires can be referred to. (Article 32). In the context of the phrase “civilised nations”, while it can be argued that this term, when interpreted in light of the object and purpose of the UN Charter, and the fundamental principle of sovereign equality would include all nations of the world, this becomes problematic when the travaux is relied upon. As noted by the ILC, this phrase was included to exclude states considered “not civilised”. In light of this, it is difficult to argue that the phrase can be interpreted as being inclusive of all states of the world. Though one might downplay the relevance of travaux by emphasizing the VCLT’s interpretive hierarchy, such an approach risks oversimplifying the nuance involved in treaty interpretation. This is because the interpretation of treaties is fundamentally based on state consent, and when that consent was explicitly formed on an exclusionary intent, this term cannot be interpreted independently of its original context and purpose, as reflected in the travaux préparatoires. However, it may still be argued that, even if the phrase was originally intended to exclude states deemed “uncivilised,” all states today are regarded as civilised, thereby rendering the term inclusive in effect (Mexico’s Statement at the UNGA, p-24-25). However, in that case, though the purpose of making the phrase inclusionary would be met, the text of the ICJ Statute would still remain unamended, since such an interpretative exercise lacks the formal authority to alter the text of Article 38(1)(c).
The First Report on General Principles of Law
The First Report on General Principles of Law by Special Rapporteur Marcelo Vázquez-Bermúdez, follows a different reasoning, potentially to avoid the problems that arise due to this conflict between the travaux and the object, by relying on the contemporary practice of states. While being merely suggestive, the report provides examples from two human rights treaties to show alternative formulations, i.e. Article 15, paragraph 2, of the International Covenant on Civil and Political Rights (ICCPR) provides that and, Article 7, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR). The former uses the term “community of nations,” while the latter retains “civilised nations.” (Paragraphs 120-121) The travaux of both treaties show that these articles were introduced to further confirm and strengthen the principles affirmed in General Assembly resolution 95 (I) of 11 December 1946, which aims to promote the equality of all nations of the world. (Paragraph 121) However, this is where a crucial distinction emerges: while the travaux of the ICCPR and ECHR reflect an inclusive intent, the travaux of the ICJ Statute reflect an exclusionary one.
There is another, deeper problem with this suggested mode of interpretation. The International Law Commission itself, in its draft conclusions on subsequent agreements and subsequent practice, states that first, the practice being relied upon must be in application of to the treaty in question (Conclusion 4), and second, that it cannot modify the terms of the treaty itself (Conclusion 7). In the present instance, however, neither of these are met. To what extent can the varied support shown by states to the ILC’s report be relied upon to remove the phrase “civilised states” remains a controversial question, and is difficult to apply given the rules of interpretation. Reliance on other customary rules of interpretation beyond the VCLT such as desuetude, raises similar concerns of difficulty in establishing opinion juris i.e. the conviction by the parties that the provision of the treaty has been extinguished.
To conclude, while the recent developments in state practice and the work of the ILC concerning the phrasing of Article 38(1)(c) of the ICJ Statute are indeed laudable, how the same would be effectuated is yet to be worked out. The state practice in this regard at present seems to be insufficient. Ultimately, until state practice crystallizes into a clear and consistent legal standard, the phrase “civilised nations” may remain a relic of a bygone era—contested in meaning, but not yet erased in law.
Zitiervorschlag: Sehgal, Anika, Outdated Origins: Revisiting the meaning of “Civilised Nations” in Article 38(1)(c) of the ICJ Statute, JuWissBlog Nr. 48/2025 v. 29.05.2025, https://www.juwiss.de/48-2025/
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