Panel 2.1 / Ontological Critiques of CIL
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Ontological Critiques of CIL
This paper analyses the practical and normative consequences of misinterpretation of
customary international law (CIL) arising from situations where courts (and potentially
other actors) find CIL to have crystallised without sufficient evidence of practice and/or
opinio juris.
While traditionally CIL emerges spontaneously “like a path in a forest”, the proliferation
of international interactions, norm-interpreters, and theories of “modern CIL” suggest
that identification and interpretation of CIL have become more strategic endeavours.
With various interpretative methodologies in place (Arajärvi, 2014), some findings of CIL
have been criticised for being inaccurate, due to either a genuine mistake in the
interpretive methodology or aspiration to apply a progressive rule for moral, ethical,
policy, or other extra-legal reasons.
This paper, first, determines what amounts to misinterpretation and what types of
misinterpretation of CIL can be identified, relying on the Reports and draft conclusions
of the International Law Commission’s Special Rapporteur on CIL for analytical guidance.
It then proceeds to discuss the respective role of practice and opinio juris in the process
and the differing consequences of a flawed interpretation of one or the other. This is
followed by an analysis of examples of misinterpretation of CIL in international courts,
drawing from author’s previous work. Finally, a normative evaluation is set out: whether
such misinterpretation renders a norm invalid, illustrates lex ferenda, or creates an
authoritative verdict of the status of law, even against its flawed premise – “a corrupt
pedigree” as termed by Fernando Teson (2014). The misinterpretation of customary
norm, which is subsequently followed by states and other entities as if it were part of
CIL, creates a self-fulfilling prophecy – a self-generating crystallisation of a rule. Even if the rule was not customary law in reality at its inception, the subsequent practice and acceptance eradicates the “mishap” of the initial misinterpretation and legitimatises the
rule as part of CIL. On the other hand, as examples from international criminal tribunals
illustrate, a later decision may denounce the misinterpretation and correct the course of
the customary process, or the misinterpretation will remain an unfortunate but soon
forgotten misstep, not to be restored nor repeated. The paper concludes with some
conceptual considerations on the impact of interpretative exercise on recognition,
validation and legitimation of CIL.
The Fiction of Customary International Law: an Historical and Theoretical Perspective
Over the last four years, I have been working on a thesis titled ‘Unpuzzling Customary
International Law: The Invention of Customary Law of Nations from Francisco de Vitoria
to Emer de Vattel’, which I have recently defended and I am currently turning into a book
manuscript. In this thesis, I have provided an intellectual-historical investigation of the
concept of customary international law across a time span of two centuries. By relying
on a close analysis of natural law and ius gentium doctrines and their intellectual sources,
I argued that natural law provides normative content to the concept of custom allowing,
therefore, its emergence as a distinctive source of obligation among sovereigns.
One of the aspects that emerged from this analysis is that, in various ways, the
employment of fictional arguments is a consistently acknowledged feature of custom. In
order to conceptualize custom, recourse to fictional arguments constitutes a powerful
means of articulating its conceptual ambiguity.
There are at least three senses in which custom might be interpreted by analogy with
fiction, and that I will explore in this contribution, both in terms of their historical as well
as concerning their wider conceptual, and even contemporary, significance.
First, fictional arguments help us to deduce and presume the existence of a universal
consensus legitimating custom. This is particularly evident in the works of Francisco de
Vitoria (1483-1546), whose doctrine of ius gentium is based on the deduction of universal
principles of human nature. From this perspective, in order to identify customs Vitoria
suggests that the following counterfactual argument could be employed: what would
sovereign x do in a given situation y? Quite interestingly, Emer de Vattel (1714-1767)
also makes use of fictional arguments to argue for the existence of customary rules
binding on sovereigns, although starting from fundamentally different premises. Vattel
claims that customs should be judged according to natural law, whose foundational
principle is a noble self-interest. This allows custom to enshrine and secure collective as
well as individual interests. Indeed, if nations acted according to self-interest as they
would in a condition of natural liberty, they would inevitably comply with natural law. In
this respect, custom is what nations seems to observe (both in theory and in practice) as
a reminder of their original natural liberty. Fiction powerfully helps nations recall that
often forgotten original state.
Second, the concept customary international law is also constructed by jurists via proper
legal fictions. In cases in which a strong sense of obligation is attached to an otherwise
normatively indifferent conduct, that conduct should be considered as if it really
possessed all that legal meaning and value. In a similar vein, Christian Wolff’s (1679-
1754) suggestion to conceive of customs as if they were treaties also implies the fictional
reasoning that tacit consensus has to be interpreted (and considered as legally cogent)
as if it was expressed, in order to argue for equal legal effects stemming from such an
analogy.
In this respect, a third kind of fiction is employed, mostly by humanist jurists: literary
fiction as a reflection of human nature. Alberico Gentili (1552-1608) and Hugo Grotius
(1583-1645) both make use of literary fictio, understood as the body of different
historical, philosophical and poetic sources of the classical textual tradition, to make the
claim that fictio is either a powerful imitative practice (of which exempla from the past
are particularly significant evidence since they provide moral guidance), or an important
means to collect further evidence of natural law principles. In both cases, their claim is
that customary law of nations becomes visible through the fabric of intertextuality. To
this end, the fact that literary fiction provides an important source of information implies,
to a certain extent, the fictional argument that the same rules so perfectly enshrined in
the classical past are also valid for the present, simply by virtue of their paradigmatic,
normative force.
Tools to Match Desire: Customary International Law’s Plastic Hypocrisy
Although much of international law is articulated in treaties, customary rules underpin
some of that law’s most important normative commitments. After all, as Koskenniemi has
noted, we don’t believe that genocide is illegal – let along wrong – solely because of the
Genocide Convention. Arguably the entire edifice of international law’s authority rests
on a customary basis, underpinning every claim that a given positivist textual
commitment matters. Custom’s decline was long anticipated, but it has proved tenacious,
in part because it has turned out to be quite useful.
At the same time – perhaps precisely because of its persistent centrality – customary
international law, or CIL, has been subjected to trenchant critiques concerning its
doctrinal incoherence, irrationality, and irrelevance to the actual decision-making of
states. Equally, CIL has been vigorously defended by those for whom custom’s normative
character and potential are important.
Yet there is one aspect of CIL on which the two sides of this debate have largely been
silent: the ethical foundations of its method. Especially in the hands of its so-called
modern practitioners, CIL relies on a highly indeterminate set of constitutive methods
that privilege public rhetorical positions over evidence of actual intimate conviction in
order to do its principal jurisgenerative work. Simply put, custom relies on hypocrisy.
Now this may be a good thing. We typically think of hypocrisy as inherently bad, but as
a matter of method, this is not a necessary, nor necessarily obvious, judgment. But either
way, the descriptive fact of CIL’s deployment of a method that is technically hypocritical
is consequential – especially for the interaction of custom with human rights, which has
always exhibited a strong concern with morality alongside (and as part of) its legal
development.
The kind of CIL that has been most successful in advancing and legitimating a rights
agenda has adopted two related innovations: An expressly normative commitment and a
technically hypocritical method converge, allowing greater development of customary
rules than either a more normatively restrained or methodologically fastidious approach
would allow. But this means the most efficacious form of CIL, from a rights perspective,
rests on a problematic epistemological and ethical foundation. For, apart from the ethical
concerns hypocrisy usually entails, CIL derives rules from what actors say in ways that,
in any other discipline, would immediately be recognized as analytically naive.
This article first reviews the theory and operation of CIL – the standard view, principal
critiques, and CIL’s particular reliance on indeterminacy. Then it turns to a consideration
of how modern CIL privileges rhetorical statements and ignores contrary evidence to
construct normatively preferred claims, in ways that are best described as technically
hypocritical and methodological heterodox – if also necessary to the realization of
modern custom’s normative desires. That custom survives and even thrives is testament
to the value of plastic and malleable tools.
Beyond Formalism: Reviving the Legacy of Sir Henry Maine for Customary International Law
Despite the fact that the legality of CIL is taken almost for granted these days, certain
problems still remain. 1) General legal theory still understands CIL as a defective, or
exceptional, case of law due its primarily customary element – and to an extent this
migrates to IL. 2) The ‘slow growth of custom’ is taken to be a serious problem hindering
international law which can only be overcome by formal means (i.e. treaties). And as such,
3) International legal scholarship itself seems to think of this customary element as
outdated or problematic, and we see a shift towards formalism (replacing custom with
treaties).
These criticisms and concerns attack, not only the ontology, but question the efficacy of
CIL, and doubt whether its existence will continue to have relevance. Nevertheless, while
most theories of (international) law ascribe to at least one of these positions, a now forgotten school of thought, led by the work(s) of Sir Henry Maine, reversed all of them.
For Maine the historical evolution of law begun with custom, and no legal system can
develop beyond it. ‘Customary law’ is the most primitive, rudimentary, yet fundamental
and central form of the phenomenon of law. Despite its informal appearance, it manages
to constitute a society, to create order, and by organizing individuals in (in)formal
institutions, it provides humanity secular means through which to fulfil their needs and
achieve survival in close proximity to each other.
Law from this perspective is a facet of culture, and legality a mode of custom; and in this
most rudimentary form we can see how law manages to arise freely, and spontaneously,
without the need for formalities or imposition. While it is true that Maine himself notes
that domestically certain deficiencies necessitated the formalization of customary law,
this had its own adverse effects. The main idea is that once (customary) law is formalized
and custom is excluded from yielding law, its spontaneous evolution terminates, and this
formal law begins to detach from the continuously changing environment to which it
belongs. From there, Maine isolates three agents of change; Legal Fictions, Equity, and
Legislation.
If we choose to assimilate a Mainian perspective, then a new vision spawns for CIL. First,
CIL is law-properly-so and perhaps the most fundamental type; no ontological concerns
arise. Second, the ‘slow growth of custom’ might not be as slow as we might have thought
once Legal Fictions and Equity are taken in mind. Third, rather than replacing customs
with treaties, Maine’s perspective suggests the two can work together; by consolidating
each other we can avoid the pitfalls of formalism and the adverse effects that come with
it.
Most importantly, Maine’s evolutionary narrative speaks of a myriad of stages and forms
in between the most primitive customary law and the complex domestic legal systems.
By avoiding this strict dichotomy, Maine’s perspective allows us to see CIL as much more
than the simplest structure of customary law, although not yet on par with the complexity
of domestic legal systems. Two points might be added, that a) this might not be such a
bad thing, and b) that despite their formal and structural differences, no great divide
separates the most primitive customary law from its more complex legal system
counterpart.
TRICI-Law - The Rules of Interpretation of Customary International Law 