Panel 3.1 / Alternative Approaches to CIL
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An Alternate Theory of Customary International Law
The typical theory of customary international law (“CIL”) provides that CIL is considered
a binding norm of international law if it is “a general and consistent practice of states
followed by them from a sense of legal obligation.” CIL is continually evolving based on
state practices; as state practices change, so does CIL. There is no central maker of the
law, nor is there a widespread agreement among states on all, or arguably many, aspects
of CIL norms.
International human rights law provides a problem for traditional CIL. This “modern” CIL
does not follow the typical standard, as it generally defines what the “general and
consistent practice of states” should be rather than what it is. For example, virtually all
states condemn torture, yet many are still accused of continuing the practice despite that
the act of torture is a violation of CIL proclamations.
This Article will challenge the traditional theory that CIL is followed “from a sense of legal
obligation.” Instead, this Article will put forth an alternative theory that states generally
follow international law because it benefits them in some way outside of pure legal
compliance. Professor Thomas M. Franck asserted that nations “obey powerless rules”
because they are pulled toward compliance by considerations of legitimacy and
distributive justice. Professor Ronald Dworkin similarly put forth his theory that states
follow international law because they are obligated to improve their own political
legitimacy, namely through complying with international law. Professors Jack Goldsmith
and Eric Posner have used game theory in concluding that “CIL emerges from states’
pursuit of self-interested policies on the international stage.”
Drawing on these and other theories, this Article will conclude that states do not follow
CIL out of a pure sense of legal obligation. States follow CIL because it benefits their
national self-interests. In asserting this theory, this Article will further focus on what
reasons a state may analyze when deciding whether to comply with international law. In this analysis, a state may decide to comply or deviate from CIL norms if the benefits
outweigh the potential harms to the nation’s interests. Any one of the benefits—
including legitimacy, justice, peace, or economics—may be considered in this cost-benefit
analysis.
Admittedly, this theory raises a host of questions, including whether states are rational
actors or always act on that rationality, and do states follow national interests or how the
leaders view their country’s national interests. One particular question refers to
Professor Henkin’s oft-quoted description of compliance with international law: “Almost
all nations observe almost all principles of international law and almost all of their
obligations almost all of the time.” If this is true, then we must understand the times that
international law is not complied with and whether any legal obligation was involved.
The Phenomenology of Absence in Customary International Law
The proposed paper aspires to offer an alternative, phenomenological reading of
customary international law as formalized, inter-state synchronicity, presumably
grounded on conscious common acting and believing. Indeed, for the application, or
interpretation, of customary international law, the international lawyer is called upon to
act as a) a historian, when tracing state practice, b) a social anthropologist/psychologist
when figuring the opinio juris, and c) a logician, when aligning a) and b).
The paper focuses on the phenomenology of absence in customary international law.
Customary international law bears an ab initio element of absence and thus abstractness:
the lack of written formality which, as such, can spur multitudinous interpretative
debates. The profound ambiguity surrounding all elements of customary international
law particularly as regards the subjective, psychological element of opinio juris is further
accentuated by the prevailing element of absence, silence or non-action and their oftenmonolithic interpretation as non-objection or, even, acquiescence. The legal positivist
eagerness to evaluate and attach negativity to absence has its roots in the
Wittgenstenian, contextual and consensual origins of legal positivism, assumed in both
Kelsen’s and HLA Hart’s theories, and the subsequent rejection of metaphysics, i.e. the
premise that there is no a-contextual, a-consensual meaning –essentially meaning
outside communitarian semiotics. There also appears to be a fundamental presumption
as regards negative and affirmative propositions in public international law: negative
premises are less valuable and less informative than affirmative ones, while affirmatives
are given semantic priority and added legal value over negatives. So if a positive
statement corresponds to a positive affirmation, to what state of affairs does a negative
statement or non-statement, refer or correspond? What is a negative fact? What is a
non-fact? What is the value of non-doing? Non-acting or abstaining? Non-believing
towards a certain opinio juris? Is every absence, or negation, necessarily a denial of a state
of affairs?
According to the rules of Logic and the canons of reasoning, negation may correspond
to multiple values, a variety of propositions and modalities, which in international
jurisprudence have been either equated or largely ignored. The Lotus case and the
Kosovo advisory opinion are typical jurisprudential examples of this. Even from the
Critical Legal Studies’ perspective, the dualism of presence and absence as manifested in
Derrida’s suppléant, largely overlooks the quantifications and varieties of meaning in nonappearances, such as the conceivable neutrality of absence.
The modalities of negation and absence are not just academic topics but affect the
rationality and soundness of international legal doctrine and even have a real impact on
international relations when overlooked –as the Chinese reception of public international
law during the 1883-1885 Sino-French war in Indochina, and even more recently the
South China Sea maritime dispute, have notably unveiled. And indeed, whereas it is not
the task of the international legal lawyer to be a historian, a social anthropologist or a
logician, it is his/her duty to be alert and inquisitive towards the presumptions he/she
passes on and solidifies.
Can Customary International Law emerge from Universal Periodic Review Recommendations? A Democratic-Constructivist Theory
The emergence of customary international law has been governed by examining state
practice to ascertain the emergence of norms. As Jan Wouters and Cedric Ryngaert
(2011) argue this involves closely examining the verbal description of state practice in
order to assess the emergence of new norms and the formation of customary
international law. This paper argues for a refinement of what we consider state practice
and for a revitalised conception of the understanding the emergence of customary
international law using constructivist theory.
The first part of this paper examines the UN Human Rights Council’s mechanism of
Universal Periodic Review. One key element of the review process is the ability to make
recommendations to states. These are issued to the state under review during the
interactive discussion stage of the review process and the state has the opportunity to
either accept the recommendation or else the recommendation is simply noted in their
UPR report. Patterns of accepted recommendations on the same subject matter can
indicate the formation of new customary and a couple of examples, such as the
consideration of corporal punishment as inhuman and degrading treatment are explored.
The experience of UPR recommendations can be read along with the literature on the
legal status of UN General Assembly Resolutions, where the emergence of new
customary norms can be established.
The second part of this paper develops these examples into a democratic-constructivist
theory for ascertaining the emergence of customary international law. Drawing on
constructivist scholarship, in particular Jutta Brunné and Stephen Toope’s (2010) work
on an interactional account of international law, it is argued that identifying quantifiable
patterns of support for the existence of a norm justifies its treatment as law as it is a
definitive expression of the collective will of the international community. This attempts
to bypass various forms of positivist reasoning by looking at international law as an
expression of communal and shared values and a concrete and quantifiable expression
of those values more accurately describes not only how norms emerge but also how they
function. It also resolves the problem of the persistent objector as the focus becomes
not whether a state has consented to the existence of a norm but on how that norm is
articulated as being the will of the international community at large.
This raises several important questions which are addressed in the concluding part of the
paper. Firstly whether the experience of the UPR recommendations can be more readily
applied to the formation of customary international law in areas beyond human rights, or
whether it is simply a function of the UPR process. Secondly what would be the threshold
for support from states for a norm before it is considered customary – all democratic
mechanisms require a threshold for success or failure and any theory of democratic constructivism would need to give a sense of how this could be achieved?
State Interest and Customary International Law – Identifying Custom Through International Relations
Normative efforts in international law must be grounded on a sound assessment of the
legal status quo. What might appear as a comforting truism for the pragmatic positivist
of black letter law seems an almost unattainable goal in the identification of international
custom. This paper proposes that a credible effort at proving non-consensual unwritten
law must take into account international relations theory, in particular the realist notion
of state interest.
As Louis Henkin convincingly laid out long ago in his seminal work How Nations Behave,
states act according to carefully calculated interests and dependent upon the
consequences of their conformity to or violation of international law. In assessing state
practice, it is impossible to avoid dipping into any such ‘law and …’ approaches, if one
wants to make any determination to the likelihood of certain acts.
For the classic realist, states are driven by two principal considerations: first, national
security, comprising the protection of statehood, territorial integrity, as well as
sovereignty, and, second, a functioning economy. Recalling the definition of what
constitutes a state, these ‘traditional’ interests are inextricably linked to its ‘survival’. This,
in turn, serves as a beacon for the formation of custom.
This is not to say that interest alone is determinative of state behaviour, as some neorealists have argued. However, if customary international law is in any way dependent
upon state practice and states act primarily according to their interests, then the result
may well be that customary international law can only exist for norms that states require
being followed. Effectivity and reciprocity act both as catalysers and indicators for likely
candidates, immunity of the highest organs of a state being the textbook example.
Of course, acting towards interests sometimes necessitates complex forms of
cooperation that go beyond the strictly personal sphere. Thereby, trade-offs become
unavoidable in the pragmatic predicament of asserting interests. But these are often
means, not the end in itself. Multilateralism should not blind the eye to the ineffectiveness of norms grounded on ‘modern’ forms of custom identification in
situations put under the stress of international relations.
In the competition of ‘first-order reasons’, to borrow Joseph Raz’s terminology, interests
related to the survival of the states will, naturally, prevail. In absence of an exclusionary
rule, a state will balance these interests in accordance with their respective ‘strength’ or
‘weight’. A ready example is the primacy that states accord to national security
considerations over basic citizen’s rights in the face of terrorism. Altruistic obligations, in
particular, do not seem likely candidates for custom.
The present paper sets out from the classic textbook ‘two element’ theory of customary
international law – taken as a starting point once more by the ILC – to set out the problem
of identification. It then presents the idea of classic realism that states act according to a
set of inherent interests, rebutting the various challenges to the theory. Finally, the
natural connection between custom formation and this particular international relations
theory is proposed to contrast effective versus ineffective ‘modern’ custom.
TRICI-Law - The Rules of Interpretation of Customary International Law 