Is there such a thing as Customary International Law?

Why International Law is a legal unicorn and the ICJ is a sham

[Image retrieved from adcolaw.com]

“They are breaking International Law!” How many times have we heard this statement? How many times have we uttered this statement? But what if International Law - outside of treaties made between free-acting parties - doesn’t actually exist? What if it is a figment of our collective imaginations? Worse still, what if we have given incredible power to group of ICJ judges - many of whom hail from undemocratic countries and act under dictatorial influence - to arbitrarily apply this imaginary system of law with serious consequences for the Free World.

It is this question which I consider in this UCL dissertation from 2005. Nearly two decades may have passed, and my writing style may be a little less refined, but the issues I raise are as powerful and as relevant as ever. So sit back, get a nice cup of tea and lose yourself in my polemical essay. You will never view International Law with the same respect again.

Is it accurate to describe Customary International Law as a Source of International Law? (Daniel Clarke-Serret, 2005)

Introduction

Critics have long argued that International Law is a system unworthy of the label ‘law’; They note, for example, the lack of an international legislature and the woefully inadequate enforcement mechanisms. Such shortcomings are readily conceded by proponents of International Law. They counter, not that these defects are unproblematic, but that a system cannot be denied the label of “law” merely because it does not showcase the features of an efficient municipal law system. At the heart of the concept of law, they argue, is the idea of obligation. Although States may not always comply with their international obligations, they recognise that these obligations do exist and that they are legally binding upon them. The following quote from Herbert Hart is the classic defence of International Law. “What these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and countermeasures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts”.

Professor Hart’s impassioned defence logically follows from his general conclusions about the nature of law. In The Concept of Law, the famous jurisprudential work from which the above quote derives, Hart famously argues that legal systems are made up of rules, both primary and secondary. He begins his analysis by dismissing the so-called ‘command theory’, propounded by Austin, which explains the law as a matter of orders backed up by threats. To reject International Law on the basis that it lacks organised sanctions is to equate the notion of having an obligation with the threat of suffering a sanction or punishment. In short to reject international law on this basis is to tacitly accept the Austinian theory of law, something which Hart, unsurprisingly, was reluctant to do. By way of contrast, Hart’s defence of International Law, outlined above, is wholly consistent with the idea that the essence of a legal system is the rules, or obligations, which make it up.

Naturally one may reject Hart’s rule-based theory in favour of Austin’s or indeed any other legal philosopher’s theory. The consequence of doing so may be to reject International Law as a true system of law. Disciples of John Austin, for example, will regard the lack of organised sanctions in International ‘Law’ as fatal to any attempt to classify it in that way. However for the purposes of this dissertation I will make the presumption both that Hart’s rule-based theory of law is the correct one and consequently that if International Law is a system composed of obligations, it deserves to attract the label of ‘law’. I am prepared to make this concession, not because I necessarily agree with Hart’s theory of law, but because if it can be proved, in contradiction to Hart’s claims, that States do not regard themselves as legally bound by international obligations, it will become untenable for even the most generous observer to argue that International Law is a true system of law. In this dissertation, I will focus exclusively on the rules of international custom. My thesis shall be that these rules are not viewed by States as legal obligations and therefore, according to Hart’s own logic, should not be regarded, collectively, as a source of law.

The conditions for the formation of international legal obligations

When discussing the appropriateness of labelling customary international law ‘a source of international law’, it is important to make a distinction between form and substance. There is no doubt that States, national courts, international courts and international organisations all formally regard customary international law as a source of international law. That’s to say that formal declarations, both written and oral, have been made that this is the case. Article 38(1)(b) of the Statute of the ICJ, for example, stipulates that international custom is a source of law to be applied in disputes before it. Lord Denning, in Trendtex Trading Corporation v Central Bank of Nigeria, declared that international custom both exists and forms part of the common law of England. Furthermore, as Scott has correctly observed, States, today, regularly justify their actions on the international plane with reference to customary international law. The key question, however, is whether the authors of such declarations genuinely believe that the rules of customary international law are binding upon sovereign States. To answer that question, the way in which international custom is formed must be carefully examined. It is that to which I now turn.

For a rule of customary international law to be established, there must be both evidence of general State practice and a belief among those States which undertake the practice that it is legally binding (opinio juris). These two conditions are expressly set in Article 38(1)(b) of the Statute of the ICJ. Moreover the said conditions have been formally reaffirmed on numerous occasions by State officials and national courts (see for example the English case of West Rand Central Gold Mining v The King). These two conditions, although universally accepted, are extremely difficult to apply. The inevitable consequence is that there is a great deal of uncertainty about which rules of customary international law exist at any given time. It is strongly submitted that if a State can never specify with any degree of certainty which rules of international custom it is bound to follow, then it will never view itself as obligated to act in any particular way.

General State practice

Let us first consider the difficulty in applying the condition that there be evidence of general State practice. State practice has no precise meaning, but is widely understood to include physical acts, claims, declarations in public fora, votes in the General Assembly of the United Nations, national laws, national judgements and omissions. Indeed, as Akehurst has noted, it includes “Any act or statement by a State from which views about customary law can be inferred”. This definition is extremely wide. In the North Sea Continental Shelf Cases, the ICJ considered the question of how much State practice is needed to bring a rule of international law into being. The Court held, unhelpfully and using rather vague terms, that there is only ‘general practice’ where a particular practice is “widespread and representative”. Extraordinarily, the ICJ also held that there is no set time for which a practice must be followed; the passage of only a short period of time is not a bar to the formation of a new rule of customary international law so long as within the period in question State practice is both “extensive and virtually uniform”. In this sea of vagueness there appears to be just one small island of clarity; In determining whether there is “evidence of general practice” one should have particular regard to the practice of those States whose interests are specially affected in the particular context.

These rather wide definitions of what State practice is and how much State practice is needed to bring a rule of international custom into being effectively allows national and international tribunals to hold that any rule of international customary law they want to exist does exist. Huge discretion is put in hands of the courts which they all use to advance their respective interests.

The example of torture is instructive. The prohibition on torture, international tribunals regularly affirm, is a rule of customary international law. Consequently, all States, including those who decline to ratify international conventions on human rights, are legally bound (if one accepts that international custom is a source of international law) to abstain from using this technique. For anyone who believes that the wielding of arbitrary judicial power is dangerous, these regular affirmations of the ICJ and other international tribunals should be viewed with great concern. Although torture is, in my view, an abhorrent practice, the fact is is that it is employed widely by governments across the globe. Possibly even the majority of governments. In spite of continual declarations by State officials in public fora that torture is an outlawed technique, it is, I submit, a fiction to say that the prohibition on torture is confirmed by “widespread and representative State practice”. In my view, international judges consider torture to be an illegal practice because that is the result that fits with their political ideals. It most certainly is not the result yielded by an honest application of the Article 38(1)(b) conditions.

Opinio Juris

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