Guest Post: Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions

[Jean d’Aspremont is a Professor of International Law, University of Manchester and a Professor of International Legal Theory, University of Amsterdam.]

The identification of customary international law is à la mode among international lawyers. Seminars, research handbooks, special symposia in scholarly journals and on-line discussions devoted to the question are mushrooming these days. Arguments and constructions heard on these occasions are sometimes admirably – and sometimes even adorably – creative. Amidst this academic mania, particularly noticeable is the forthcoming expert seminar organized by Lincoln Law School and the Manchester International Law Centre on Thursday the 13^th and Friday the 14^th of November 2014 at Lincoln Law School. This two-day meeting will gather 25 international lawyers from across the United Kingdom. They will be joined by Sir Michael Wood, i.e. the International Law Commission (hereafter the ILC)’s Special Rapporteur. The discussions that will take place on this occasion are meant to provide the Special Rapporteur with new insights that could feed in his 3d report due in 2015. This expert seminar follows a series of similar meetings that were held in the last months both in the United Kingdom and the United States. It also perpetuates the – welcome – outreach and openness of Sir Michael Wood to the academic community witnessed over the last two years. On the eve of this new expert meeting, it is not unwarranted to take stock of where the debate currently stands as well as the direction in which the ILC and its Special Rapporteur are steering it.

Two years into the debate and after the submission of two reports by the Special Rapporteur, the ILC has already taken a few firm positions which it is unlikely to reverse. It would be of no avail to revisit them here. These choices, which are obviously more normative and policy-motivated than grounded in empirical findings, simply ought to be recalled:

1. The ILC decided not delve into the (jurisprudential) question of the nature of the rules, principles and practices on the establishment of customary international law (for a study on this question, see here). The reference in the draft conclusions to the rules on customary international law is meant to be without prejudice to the nature of the doctrine of customary law.
2. The question of customary international law arising in connection with ius cogens was left aside.
3. The regime of customary international law was held to apply across all areas of international law and the idea of differentiated regimes of customary law identification (e.g. in international criminal law or environmental law) was strongly rejected by the ILC and its Special Rapporteur. The position that prevailed in the Palais des Nations is that the difference is not of regime but of application. This normative move for the preservation of the unity of the doctrine of customary law is not without a self-empowering dimension, as it automatically gives the work of the ILC a universal scope.
4. The doctrine of customary law was equated with the two-element approach and no consideration will be given to scholarly constructions pertaining to the so-called ‘new custom’ (see the report’s draft conclusion 3 and drafting committee’s draft conclusion 3). This position is part of the abovementioned promotion by the ILC of a unitary regime of identification of customary international law.
5. Both the Special Rapporteur and the Drafting Committee considered preferable not to address the question of non-State actors in the conclusions themselves as there was supposedly a widespread agreement that the practice of non-State actors generally is not directly relevant to the formation of customary international law. This was deemed to be without prejudice to the influence of non-State actors in the promotion and adoption of certain behaviours by States and international organizations.

The second report proposed 11 draft conclusions which were referred to the ILC’s Drafting Committee which provisionally adopted 8 conclusions. It will not come as a surprise that the second report as well as the conclusions adopted by the Drafting Committee have not clinched all the controversies associated with the aspects of the identification of customary law that have already been addressed so far. Mention must be made here of some significant recurring ambiguities:

1. Although taking pains to distinguish between the establishment of customary law and the evidence of the two elements (see the report’s draft conclusion 4 and draft conclusion 10), the two processes remain conflated in some provisions (see the report’s draft conclusion 2).
2. While unflinchingly adhering to the two-element approach, the second report occasionally nurtures some conflation between the two elements. For instance, some acts can indeed be constitutive (and/or declarative) of both practice and opinio juris (see report’s draft conclusion 7 and draft conclusion 11). This creates a tension between the universal adherence to the two-element approach and an inclusive understanding of practice and opinio juris reminiscent of what is often witnessed in the practice and scholarship.
3. The rules in which the practice of states or international organizations can potentially coalesce are left undefined (see the report’s draft conclusion 5 and draft conclusion 7 as well as the drafting committee’s draft conclusion 4). This silence leaves open the – very contra-intuitive and technically incongruent – possibility for international organizations to contribute to the formation of rules that only bind states and vice-versa.
4. In case of dissonant individual States practice – that is when the organs of a State do not speak with the same voice, the position adopted so far is to give less weight in given to the practice of that state (see the report’s draft conclusion 8). This leaves unanswered the possibility of the practice of some organs being given more value. This could be the case if the rule concerned pertains more specifically to the behaviour of one type of organ (e.g. the judiciary in the case of rules on state immunity). It also ignores the possibility of resorting to other criteria in case of dissonant practice, like representativeness, powers or delegation. Obviously the same difficulties arise in the case of dissonant practice of organs of international organizations.
5. The notion of specially affected states has been scarcely discussed in the second report whilst it seems to call for much more consideration. This question not only pertains to the material possibility of practice and opinio juris by certain states or international organizations (e.g the practice of landlocked states in connection with the law of the sea) but also to the quantitative variations in the practice generated by States or international organizations (e.g. the practice of a major military power constantly engaged in armed conflicts compared to the practice of a small and peaceful state in relation to international humanitarian law or the use of force).

Whilst the abovementioned expert seminar will revert to some of these lingering ambiguities (most of which the Special Rapporteur is aware of), attention will also be paid to the controversies which the Special Rapporteur will seek to address in his third report. This includes:

1. The role of treaties,
2. Resolutions of international organizations and conferences
3. The practice and opinio juris of international organizations
4. The persistent objector rule
5. Inaction as a form of practice and/or evidence of opinio juris
6. Special, regional and bilateral custom
7. Dissemination and publicity of practice and opinio juris

The orientation of the debates which will take place at Lincoln Law School and in the ensuing months can of course not be prejudged here. Yet, it is anticipated that, given the pragmatic spin given to the work of the ILC, a dilemma is likely to arise and infuse the future discussions related to the third report of the Special Rapporteur. The ILC has obviously embraced a problem-solving, pragmatic and clarificatory approach. Indeed, its ambition has not been to work on the internal aesthetics of the doctrine of customary law but to strip debates of their theoretical intricacies with a view to offering useful guidelines that can ease the identification of customary law by both practitioners and scholars. In that sense, the value of academic hair-splitting has been plaid down in the Palais des Nations, not without good reason. This does not mean, however, that one should let all the conceptual distinctions on the basis of which the doctrine of customary law was – albeit artificially – built collapse completely. Indeed, ironing out of all those distinctions may well be counter-productive as it would make the doctrine even less operable. If, as some of the abovementioned recurring ambiguities seem to make possible, resolutions of international organizations or diplomatic protests or any relevant act or statement can be constitutive or declarative of either practice or opinio juris (or both) by either States or international organizations (or both) and generative of an obligation binding either States or international organisations (or both), one may wonder whether law-applying authorities will actually find in the ILC’s practical toolkit the guidance that is currently promised to them. After all, conceptual distinctions also come with an operative value for those confronted with the question of the identification of customary international law.

A follow-up post will appear on Opinio Juris shortly after the seminar.