Panel 1.0 / The Theory and Philosophy of CIL as a Source of Law
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The Theory of Customary International Law after the ILC Project: Between Pragmatism and Disenchantment
The ILC has now concluded its project on the Identification of Customary International
Law. Ably directed by Michael Wood, it has from the very beginning been suffused by
the spirit of pragmatism. The project primarily wanted to providing guidance to decisionmakers, particularly those not professionally trained in international law; engaging in
depth with the theory of customary international law was consciously avoided as far as
possible. Yet, for all its self-avowed pragmatism, the ILC could not avoid taking a stance
on the theoretical aspects of this source, even if only in a roundabout, subconscious
manner. On the other side of the equation we find foundational critiques of customary
international law, with Martti Koskenniemi’s From Apology to Utopia a prominent
example. An excellent recent contribution to this genre is Jean d’Aspremont’s
International Law as a Belief System, where customary international law is downgraded
to a set of doctrines within the canon of stories international lawyers tell themselves, our
‘bed time stories’, so to speak.
Both methods – apologetic pragmatism as well as iconoclastic scepticism – have virtues,
but both have very dangerous vices and both, in a sense, contain the seeds for their own
destruction. This contribution will be an effort to show the relative merits and demerits
of these two approaches, exemplified in the ILC report and d’Aspremont’s book. We will
focus on what they can tell us about the theoretical foundations of customary
international law as a source of international law. The present author is sympathetic to
both modi operandi: customary international law is on shakier ground than mainstream
writers and practitioner’s assume, but the point cannot be to employ a brutal reductivism.
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In this presentation, we will show where the quicksand lies and why our reliance on this
source is problematic. To paraphrase Carl Schmitt: whoever invokes customary
international law wants to deceive.
The Four Lives of Customary International Law
This contribution tells the story of the doctrine of customary international law in the 98 years between the moment the introduction of the draft rules to be applied by the new Permanent Court of International Justice on 1st of July 1920 and the adoption on 25th May 2018 of its 16 Conclusions on the identification of customary international law by the International Law Commission. This story of the doctrine of customary international law is not linear. It is tumultuous and pockmarked by a series of metamorphoses. In particular, the tumultuous story told here is articulated around four moments of rupture: 1920, 1927, 1986, and 2018. These four moments corresponds to four key metamorphoses of the doctrine of customary law. Each of these four metamorphoses originates in powerful interventions by some given actors resulting in a redefinition of how arguments about the customary status of a rule ought to be made. It is argued in this article that the doctrine of customary international law, by undergoing these four metamorphoses, has gone through 4 different stages: the age of innocence (1920 – 1927), the age of dualism (1927-1986), the age of turmoil (1986-2018), and the return to innocence (2018-present). The story offered in this article is a story about the four lives of customary international law.
This story of the four lives of customary international law is produced through a chronological narrativization of these four moments of rupture and organized on the basis of a specific four-tiered periodization. This contribution will proceed chronologically and sketches out each of these four stages in the history of the doctrine of customary international law between July 1920 and May 2018 one after the other. This story about the four lives of customary international law will help us shed a new light on the nature of the doctrine of customary international law and the very idea of ‘rules’ in the doctrine of sources of international law. Drawing on the story of the four lives of customary law, this contribution will develop the an anti-necessitarian argument against the idea that the doctrine of customary law constitutes a set of (customary) rules.
Customary International Law and the Regulation of the Sources of International Law
The proposed paper analyses various issues concerning the nature and source of rules regulating the sources of international law, with a specific focus on customary international law (CIL). In particular, it argues that custom is the source of the meta-rules regulating the sources of international law, and, therefore, that such ‘meta-rules’ are customary.
The paper provides an analysis of the aforementioned issues by reference to selected bodies of literature. These bodies of literature have been extensively surveyed by the author in his doctoral dissertation and discussed in a paper published in the German Yearbook of International Law, which formed the basis of one of his earlier paper presentations, at the Third Annual ASIL-ESIL-MPIL Workshop (see cv). The paper, building on the dissertation and GYIL article, proceeds in three main parts. Part I addresses the nature of meta-rules on sources. Part I first distinguishes the question of meta-rules from that of the foundation of international law, i.a. (like Mendelson’s distinction of ‘levels of analysis’). Furthermore, Part I assumes the premise that such meta-rules may exist and are significant (contra, i.a., D’Aspremont). This position is briefly covered (see GYIL article). In this vein, Part I argues against both the Kelsenian (and constructs such as Kammerhöfer’s) and Hartian (and theories such as D’Aspremont’s) conceptions of meta-rules. Instead, Part I argues in favour of distinguishing the question of identification of rules (as demanded by Hartian approaches) from that of their creation.
Part II turns to the question of the sources of the meta-rules on sources, building on Part I’s denial of the impossibility of source-based meta-rules (entailed, i.a., by Kelsenian Grundnorm representations). Part II, in particular, addresses the importance of the 14 question of source of the aforementioned meta-sources, by emphasizing, i.a., the need for determining the source of a rule in order to establish its existence and scope of application. Part II further argues for a representation of sources as ‘means’, not ‘processes’ (like Capotorti, Monaco and Sur, i.a.). In identifying the nature of sources of international law, Part I finally argues in favour of distinguishing sources of law from sources of obligation (like Fitzmaurice, i.a.).
Part III concludes by examining various aspects of the claim that CIL contains the aforementioned meta-rules. As for CIL as a source, Part III, following up on Part II, specifically argues for the suitability of CIL as source of meta-rules on sources, given CIL’s unique potential for creating rules universally applicable. As to the possibility of CIL meta-rules, Part III, building on Part I’s denial of claims of circularity, explores and addresses those issues, as particularly raised in relation to CIL (including in earlier literature, like Strupp). As for the nature and content of CIL meta-rules on sources, Part III discusses the somewhat limited body of literature supportive of the role of CIL as regulating sources of international law, with a particular focus on the work of Henkin, Reuter, Sur and Weil.
Enkapsis and the Development of Customary International Law: A Dooyeweerdian Approach
This essay draws from the work of the late Dutch Christian philosopher Herman Dooyeweerd (1894-1977), former chair of jurisprudence and the history of Dutch law at the Vrije Universiteit Amsterdam (1926-1964), to construct an account of customary international law. Rejecting an account of the state as the sole lawmaker, he proffers a pluralist ontology founded on the philosophical principle sovereinteit in eigen kring (sphere sovereignty) as a source of diverse structural-material principles for legal or jural positivization. Here, there are three inter-related elements: first, is his notion of individuality-structures (entities), which give rise to law unique to their particular practice 15 or sphere (entities as rule complexes, each sovereign in its own orbit, exhibiting a differentiated responsibility unique to its nature). Second is the various ways in which they engage in relations of enkapsis or enkaptic interlacements – resulting in complex intertwinements of the formal and the material sources of law with profound implications on the private-public (law) distinction. Third is his modal theory of the jural aspect, which is one of the irreducible yet interconnected universal multi-dimensional modes or aspects of reality, and through which entities and enkapses are viewed and understood as legal phenomena.
In summary, his theory of the sources of law states:
All law displaying the typical individuality structure of a particular community of inter-individual or inter-communal relationship, in principle falls within the material-jural sphere of competence of such a societal orbit, and is only formally connected (in its genetic form) with spheres of competence of other societal orbits.
Through enkapsis, different sources of law display a mutual interrelationship that bind and limit without altogether canceling one another. For Dooyweerd, insight into the nature of enkapsis,
appears to be of fundamental importance for the theory of human society because, in current conceptions, the difference in principle between sphere sovereignty and autonomy is consistently misunderstood.
This insight has a fundamental bearing on any theory of the sources of law,
because it is only by making a sharp distinction between the internal sphere sovereignty of radically different societal structures (such as for example, state, church, and business organization) and the autonomy of parts of one and the same societal whole (such as, for example, municipality and province within the state) can proper jural insight be obtained into the mutual relationship of the original material spheres of competence with respect to the area of law formation.
Thus, a formal source or genetic form of law posivitizing jural principles may be an original source of law in one sphere of competence but may be a derived source of law in another.
Applying his theory, customary international law is a formal source of law; that is, a genetic form or mode of generating international law. But its material bases may lie in the particular enkaptic interlacements involved. Further, as a formal source exhibiting the duality of norms in international law, a treaty may be a codification of norms that exist independently as custom, but it may at the same time display a multi-layered interlacement of structural-material principles from various sources.
TRICI-Law - The Rules of Interpretation of Customary International Law 