International Customary Law

Introduction

Any community is said to function more effectively towards the general welfare of its members if it follows a certain set of rules; the international community of states being no exception. The welfare-superiority of the rule system springs from the fact that the benefits of decreased uncertainty about the threats of the outside world created by rules and their enforcement commonly overweigh the costs of compliance with them (this view is sustainable both from a communitarian as well as an individualistic perspective). In economics, many institutionalists (for example, Douglass C. North) and even libertarians (Friedrich A. Hayek), see these rules as a kind of learning mechanisms of societies embodying knowledge about the desired, but at the same time effective, functioning of the social world.

Sir Humphrey Waldock of the International Law Commission (1963; in Jennings 1995: 1160) defined international law as “the body of rules and principles of action which are binding upon civilized states in their relations with one another”. Identification of these rules is at the core of their proper enforcement. In other words, knowing what the rules are, how they are formed, and when they are breached, lies at the heart of applying sanctions for possible misbehavior. Understanding the sources of international law, set of rules of the international community, is thus vital for an efficient functioning of the world society. The community of states is a very specific community when compared to national societies, however. There is no world government to enact laws “from above” – states have to decide on the guiding principles themselves under the shadow of anarchy. Moreover, the international community also lacks an effective enforcement of law for the same reason. In fact, however, the functioning arrangements of international relations prove that anarchy does not necessarily imply disorder. The one-level tier state environment (of “equals”) closely approximates what extreme libertarians would call the “natural order” in domestic societal context, where agents solve their problems solely on the basis of their interests and capabilities (for example, Hans-Hermann Hoppe; also used by Jean-Jacques Rousseau and other ‘social contract’ theorists as their starting point). Other social scientists warn about the arrangements where all actors enjoy a veto power of behaving purely at their own will. Game theory, and the Prisoner’s Dilemma game in particular, is probably the most famous example of the limitations of individual rational behavior in the achievement of overall welfare. The global climate regime, without the cooperation of the greatest polluter – the United States, seems to come close to this actor constellation. Having these particularities in mind, it is my intention in this essay to examine the sources of law, that is, what gives the rules of behavior among states their legal status. I will first refer to Article 38 of the Statute of the International Court of Justice (also known as the World Court) to investigate what it has to say about the sources of international law. Afterwards, I will follow with describing other possible sources of legalization. In conclusion, I am going to answer the research question of whether the Art. 38 is a correct and complete enumeration of the sources of public international law.

What are the Sources according to the Art. 38?

Let me now turn away from modern social science theory to international law itself, with its concepts, terminology, and traditions dating far back into the history. Almost every text on international law starts with the elaboration on the sources of law (for example Barker 2000, Wallace 2002, Harris 2004). O’Connell (1971; in Barker 2000) argues the term “source” is misleading for it associates with the way in which international rules come about. Jennings (1995), in response, identifies four distinct meanings of the term. First, there is the source in the historical meaning. Second, sources of law are the criteria for identifying (binding) rules of law, and thus distinguishing them from other rules (such as that of morality or etiquette). This will be the meaning most often referred to in this paper. The third usage is related to the second, and denotes the sources as the material evidences of law – law reports, collection of treaties and the like (following Jennings 1995: 1165). Lastly, sources of law can also refer to the methods or procedures by which the law is actually made or amended. Thus, the sources of law mean most importantly the constituting parts of international law – that is, where one finds international law and what gives the rules their legal status. Or, in other words, the sources define the mental process of how do we recognize law when we see it, which is referred to as operationalization of the term ‘international law’ (sources of law as sources of obligation, as Fitzmaurice 2000 rightly refers to them). Since there is no world government which would enact legislation in a top-down manner, this part of international law theory is of particular importance. The general legal consensus over the sources of international law is the following. Stipulated in the Article 38 of the Statute of the International Court of Justice (ICJ), the court shall base its decisions on:

1. Treaties

2. International customary law

3. General principles of law (Schwarzenberger 1957; in Harris 2004: 18; see also Appendix). In addition, the court may also apply judicial decisions or authoritative writings as “subsidiary means for the determination of the rules of law” (see Appendix for the whole Art. 38). This clearly sets the recognized sources of law apart from the other forms of legalization, such as the natural law concept, general moral postulates, or what is called the doctrines of international law (the views of writers; Harris 2004: 18). This distinction presupposes that law at a time is distinct from any moral or normative postulates of any human mind, which is understandable from the point of view of clarity for the lawyers deciding a case. Let me now dwell on each of the sources in a greater depth individually.

Treaties

By singing a treaty, it is understood that the states express their consent (or ‘good will’) to be bound by the rules stipulated in it. This way, treaties can be seen as binding and as such a source of law by definition. The enforcement of such proclamation of good will is, however, questionable in an anarchic field of international relations. In order to be possible to enforce in the international politics, the “treaty game” is said to require iteration (in one-shot game the dominant strategy is to defect, as in the Prisoner’s Dilemma; Setear 1996 in Barker 2000: 65). In this light, Adolf Hitler’s infamous canon of not sticking to the agreements when it is not anymore favorable, in theory, is an inferior game strategy in the long run, for all other players would equally defect on cooperation with the German Reich (one could even argue it proved to be inferior in this way). Inter-state treaties are formally at the top in the hierarchy of the sources of law, which is exemplified also by its primary position in the Art. 38 of the ICJ Statute (Lauterpacht 1970)1. This sets it clearly apart from national legislation, where the freedom to enter into contracts is rather strictly regulated (by, for example, minimum wage laws, product quality standards, illegalization of drugs, etc.). As mentioned above, there is a principle of good faith in treaties as sources of law (Latin: pacta sunt servanda – pacts are to be obeyed). The exception being jus cogens - principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties. States are not allowed to enter legally into an agreement institutionalizing slave trade, for example (discussed more extensively below), to behave in a certain manner even if they subsequently change their mind by any coincidence. This is now also codified in the Vienna Convention on Law of Treaties Art. 26, which cites: “every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Barker 2000: xiv). In order to provide for a leeway in case the states wish so, treaties can however also involve opt-out stipulations as known from civic law. Now, the question of universal legality comes into play. Many lawyers would argue that treaties cannot form a basis of proper (universal) law, because they are hardly ever universal - they are most often bilateral, statistically rather rarely involve many states. How can then such a treaty (between two or more states) be regarded as general law binding other parties too? In fact, it can only if all states are parties to the treaty, which happens very rarely (one can possibly think of United Nations Security Council resolutions having the source in the United Nations Charter signed by all UN members). The answer to this question lies in the next source of international law and pertains to state practice: if states not-bound by the treaty nevertheless adhere to its stipulations, the treaty can be viewed as a customary international law.

International Customary Law

Custom can more easily be a foundation of universal laws than international treaties. The two requirements that are necessary to be satisfied here are first, that sates in fact do follow the custom (state practice), and second, that they accept it to be necessary a law (opinio juris sive necessiatis; as in Barker 2000: 55). In other words, international custom has to be evidenced by general state practice and at the same time regarded as a binding law in the normative sense. The two elements are often referred to as the objective and subjective (or material and ideational) elements of international custom respectively. State practice is a relatively uncontroversial condition for a custom to be interpreted as a law. State practice includes activity of the organs and officials of states that relate to the possible rule of international law. This means also state practice at the meetings of international organizations (such as the United Nations General Assembly) by voting or otherwise expressing their view on matters under consideration. There are also instances where only what states say can be the evidence of their view on proper conduct in a particular situation (such as in the case of Nicaragua v United States; ICJ Reports #14 in Wikipedia 2006). The practice has to be consistent and regular, but does not have to be perfectly uniform by all states. The second element (opinio juris) is crucial from a normative-theoretical position. One could understand its importance by focusing on the Prisoner’s Dilemma game again. Its’ stable outcome (Nash equilibrium) is a welfare-inferior behavior – that is, defection on the sides of both players. In cases both players know that cooperation strategy is the norm (“law”), and that defection on cooperation is sanctioned in at least some way, then both actors can be better off cooperating with the certainty that also the other player will cooperate. This all allows international law to be not just what states in fact do, and what they would do anyhow (which would then be no rule of law at all), but also what states want to be done. The enforcement of such rules in an anarchical environment is a complicated matter, and it will not be extensively discussed in this paper. It is sufficient to stress that the material element of a custom (state practice or enforcement), being one of the two constitutive parts of this source of law, brings the normative concerns back to reality by proving the viability of certain ideals of behavior. Another important issue in customary law is the necessary duration of state practice and opinio juris for a customary law to be considered legally binding. Several authors speak of the possibility of the so-called “instant custom” (Cheng 1963 in Barker 2000: 57, for example), where only a very short period of time can be sufficient to the formation of a new rule. The two examples Barker (2000) provides include the law of outer space that developed in the later 1950s and early 1960s, and the law governing exclusive economic zones that developed in a decade after 1973. The law on outer space started as a United Nations General Assembly resolution (which is not binding) and was codified only in 1968 with the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, […] (Harris 2004: 245-252). This precedence gives to a certain extent of binding power to the UN General Assembly resolutions at the condition that they are followed by practice supported by an opinio juris and thus constitute a customary law. The most renowned cases connected to customary international law are the Asylum case (Columbia v Peru) and the North Sea continental shelf case (Germany v Denmark and The Netherlands). In the Asylum case, a Peruvian rebel was not extradited from Columbia on the ground that Peru repudiated on steps that would constitute such a custom. In the case of the dispute over the North Sea continental shelf, a custom of using an equidistance principle in dividing the seabed among neighboring countries was not found to be a universal practice. Another example of traditionally customary law is that of diplomatic privileges. Many of the former customs, including the diplomatic privileges (1961 Vienna Convention on Diplomatic Relations; Harris 2004: 353), however, have been codified in multilateral treaties, especially in the period after Second World War. This could be interpreted as a declining reliance on customs as rules of the international community.

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