Panel 3.1 / Alternative Approaches to CIL

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3.1.1 / David Howard
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.

3.1.2 / Anna Irene Baka
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.

3.1.3 / Frederick Cowell
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?

3.1.4 / Markus P. Beham
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.