Customary International Law Symposium: “Making Sense of Customary International Law” and Power Dynamics

I truly enjoyed reading Monica Hakimi’s “Making Sense of Customary International Law” (CIL). It is an exceptional paper, where Monica elegantly brings the entire concept of CIL back to the drawing board. The argument, I believe, can only be properly understood if the reader takes a few steps back and accepts that international law is a construct built by the assembling and disassembling of different legal theories and traditions, not a straight-line from Westphalia to today.

Before the 19^th century, most would find international law quite unfamiliar. The notion of practice and convention as sources of international law is a product of the positivist turn in the late 19^th and early 20^th centuries. Before that, international law was the realm of natural law. By 1905, however, Lassa Oppenheim was already able to proclaim that the “Law of Nature does not exist” (p. 92). By the 1930s, custom, not natural law, became international law’s Grundnorm.

A century later, something similar is happening with the transit from positivism to postmodernism. Monica’s paper is interesting because it is a call for reform contemporaneous to international law’s postmodern turn, but without being a postmodern take itself. She asks us to abandon the positivist “rulebook conception” of practice and opinio juris and embrace CIL as a competition between normative claims. While postmodern theories argue that internalized structures make competing CIL claims follow the interests of powerful states, for her, it is precisely this competitive nature that safeguards CIL from bias. “Positions that are more controversial” – she tells us – “are, almost by definition, less entrenched”. They “might still be invoked as law, but they can more readily be challenged or evaded” (Hakimi, 39-40).

This is where the argument feels incomplete. Take, for example, the article’s recollection of the role of CIL in the development of the law of the sea (LOS). This is used as an example in which “[g]lobal actors can easily use CIL to advance (…) legal claims” (emphasis added). “All the United States had to do” – it says – “was issue a proclamation advancing its legal claim”. As these claims “gained traction, they were codified as treaty rules and then accepted as rules of CIL” (Hakimi, 42).

From a Third World perspective, this is an oversimplification that only follows the story behind the creation of the continental shelf concept – precisely the aspect of the New LOS that most mirrored maritime power preferences. The continental shelf allowed maritime powers to exploit “their” oil and minerals while maintaining Global South fish stocks in the “high seas” as part of the entrenched custom of mare liberum, the free seas, that “everyone” had a right to exploit. For developing nations, it was these fish stocks in the suprajacent water that were of primary strategic importance.

Just as US President Truman claimed “jurisdiction and control” over the continental shelf in 1945, developing nations like Mexico (1945), Argentina (1946), Panama (1946), Chile (1947), Peru (1947), Costa Rica (1948), El Salvador (1950) and Honduras (1950) made similar jurisdictional and sovereign claims over the adjacent sea, up to a distance of 200 miles (Llanos Mansilla, 72). By 1958, 40% of all coastal states had issued proclamations extending their territorial sea beyond the 3-mile CIL limit entrenched by mare liberum (Roach & Smith, 136) and “several Latin American states, (…) Iceland and South Korea had staked wide claims” for exclusive fisheries jurisdiction (Anand, 183).

This is an interesting period in which to observe the paper’s argument. Several “peripheral” states were seeking to change the established CIL of mare liberum to take advantage of the natural resources off their own coasts. At the same time, a comparable number of “center” maritime powers were looking to change it only to allow for control over offshore oil and minerals while maintaining their almost unrestrained fishing and navigation privileges intact.

Center claims for a continental shelf had a “very quick impact on the evolution of the law” (Treves, 13). Indeed, “[a]s early as 1950” – 5 years after the Truman Proclamation – “some eminent publicists”, like Hersch Lauterpacht, already asserted its CIL status (Anand, p. 165). Peripheral claims for fishing jurisdiction would not be so fortunate, despite the fact that “the rights claimed corresponded to those claimed by the US for mineral resources of the continental shelf” (Treves, 12).

In 1956, the International Law Commission (ILC) published Draft Articles on LOS, in preparation for the upcoming I LOS Conference of 1958. The document steered clear of controversy, stating extensions to the territorial sea should be fixed “by an international convention” and that there should be “no exceptions” to the right to fish in the “high seas covering the continental shelf”. In fact, the Commission expressly rejected “the right to establish a zone contiguous to the coasts where fishing could be exclusively reserved to the nationals of the coastal state”. The ILC’s main argument was the defense of the entrenched mare liberum that favored maritime powers.

The ILC was much more accepting of the continental shelf. It stated that “the coastal State may exercise control and jurisdiction” over it for the purpose of exploiting natural resources, rejecting, of course, “any claim to sovereignty or jurisdiction over the superjacent waters”.

Unsurprisingly, at the 1958 conference, the mare liberum emerged victorious. According to Anand: “[a]lthough the Western maritime Powers were in a minority they dominated the Conference and, through their political influence and divisive power, controlled a majority of the votes taken and proposed most of the amendments accepted” (Anand, p. 184). In the words of a former member of Peru’s delegation, “for the delegates of the great powers, addicted to the so-called traditional principles, we were little more than heretics” (García Sayán, 17). The mare liberum remained the guiding principle, despite the fact that by 1965, 62% of coastal states had laid claims to territorial waters beyond 3 miles (Roach & Smith, 136).

It was only after decolonization that the Third World could assert itself, but not through CIL competition. The first substantive session of the III LOS Conference, in 1974, opened by noting that “[t]here could be no justice if entrenched rights acquired by the major maritime nations merely through custom and usage, without the genuine consent of the over-whelming [sic] majority of the international community, were perpetuated” (Anand, p. 209). At the time, only 24% of coastal states still held on to the 3-mile limit. The idea of a 200-mile Exclusive Economic Zone (EEZ) in which coastal states would have sovereign and jurisdictional rights for the purpose of exploiting, conserving and managing their natural resources was only codified into international law in 1982, 37 years after the initial Mexican Declaration of 1945.

Of course, it might be that one looks at this story and finds support for Monica’s argument. If CIL is a competition, the story proves that developing nations were ultimately able to ascertain their claims. As she says, as the claims gained traction, they were codified and accepted as CIL. But the peripheral claims never really “gained traction” with the maritime powers. On the contrary, they were kept at bay for as long as possible by taking advantage of the CIL process, which worked differently depending on who was making the claim. Peripheral states were simply unable to enforce or defend their claims effectively.

One might argue this is because peripheral claims encountered resistance, whereas center claims did not. That, as the ILC stated, the continental shelf concept simply “benefit[ed] all mankind”, and peripheral claims did not. But this would be an incomplete retelling. By 1958, “continental shelf” was a contingent term “covering a diversity of titles or claims to the seabed and subsoil adjacent to the territorial waters of the state” (Anand, p. 182). Global South states were not making two different claims to the continental shelf and superjacent water, but rather one single competing proposal to reform LOS. As Uruguay pointed out, it was “illogical to accept the principle of sovereignty over the seabed and at the same time to insist on the absolute freedom of the superjacent waters” (A/CONF.13/C.4/SR.5). This is why most Latin American states sought to avoid a specific continental shelf convention (A/CONF.13/C.4/SR.37). They felt that by tying the success of their claims to the continental shelf concept “something was to be gained from the United States, by way of trading” (Whiteman, 657).

The key discussion was not over authoritativeness, but meaning. While developed nations wanted to limit continental shelf rights to mineral resources, developing ones extended them to “bottom-fish and other fish which (…) have their habitat at the bottom of the sea” (A/CONF.13/C.4/L.13). As Yugoslavia explained, the proposal “sought to give fair compensation to the less-developed coastal States which were for technological reasons unable to exploit the mineral inorganic resources of their continental shelf” (A/CONF.13/C.4/SR.20). This, predictably, did not happen. The definition closely followed maritime power fishing interests in Global South waters, with all “crustacea and swimming species” being excluded (Whiteman, p. 638).

The terms of the dispute were very clear for everyone involved. As the head of the US delegation said, “[s]everal newly created states brought to the Conference a body of resentment towards those to whom they formerly were in a colonial position or at least a wish to exercise their sovereignty and make their own decisions with respect to the rights of older nations to fish off their coasts” (Dean, 609). As a response, the US and its allies “first goal” was to preserve the 3-mile limit “because [it] has long been recognized in international law” and because of “compelling military and commercial reasons” (Dean, 610). As the French delegate added, it was simply safer “not to put forward a new theory according to which States would have rights over veritable ‘sections’ of the high seas off their coasts” given that this would “nullify the universally recognized principle of the freedom of the high seas” (A/CONF.13/C.4/SR.17).     

It was not acquiescence or authoritativeness that led to the reform of LOS. The concept of continental shelf was carefully constructed and imposed to advance one set of interests, manipulating the artificial legitimacy of an outdated CIL of mare liberum as legal authority, against developing states. CIL emergence is thus also a function “of the dominance or hegemony of certain ideas and beliefs” (Chimni, p. 28). Center claims were not “stickier” because they were “more authoritative” nor were they “less entrenched” because they were “controversial”. Rather, it was peripheral claims that were painted as controversial and less entrenched because of the underlying structures in which they operated and the lack of power of those that advanced them. The 1958 “New LOS” did not “gain traction”, it was imposed. This is why most of Latin America did not ratify the 1958 Convention and had to continue fighting an uphill battle against the established CIL for two more decades.

That the mare liberum was a backstop that benefited maritime powers, precisely because it was difficult to change through CIL, was no secret. By the time of the III LOS Conference (1973-1982), developed nations realized they would finally be outvoted and threatened to leave the conference unless a “gentleman’s agreement” could be reached, encouraging voting by consensus as much as possible. (Anand, p. 210). Similar boycott tactics continue to this day in other Global-South-led initiatives to change entrenched CIL, like, for example, the business & human rights treaty.  

A “marketplace of ideas” conception of CIL will not result in the most “authoritative” claims winning the competition, but rather the most “dominant” or “hegemonic”. Abandoning the rulebook conception is not enough simply because CIL is not a leveled playing field.

Monica says that the solution is to “help historically marginalized actors advance their preferences through CIL”. This is not enough. The argument operates from the logic that if these disenfranchised actors simply knew how to work the system better, they would be more successful at winning the CIL competition. This is a narrow appreciation of the problem that ignores power and hegemonic dynamics.  

One key aspect of these dynamics is the belief that the world is divided into “major powers” and “small countries” – a belief so pervasive that even Bernie Sanders frequently endorses it. This limits the number of actors that can “afford” to participate in so-called “great power politics”. In Latin America, for example, both Brazil and Mexico have been active in specifically opposing the unwilling or unable test, but never through specific statements worthy of being “mapped” and “compiled”. Rather, they act through more discrete interventions, like speeches at the General Assembly (see here and here), or at academic conferences.

For them, diplomatic caution is usually not meant as acquiescence, but rather, as I’ve said before, “a diplomatic move to sustain the longstanding Latin American tradition of support for non-intervention, while at the same time not triggering a response from a world superpower”. It is these more nuanced appreciations of the unlevelled playing field that “Making Sense of CIL” regretfully does not account for. We cannot expect smaller states to play a bigger role in the formation of CIL without addressing the top-down structures in which the CIL process operates.

This does not mean, of course, that the rulebook conception needs to be rescued or that CIL is doomed to be a “tool for subjugation”. It only means that CIL normative claims need to be contextualized historically and systemically: on what set of beliefs does this CIL claim rest? Where do these beliefs come from? Does the system maintain internal coherence once we incorporate it?

Making sense of CIL, therefore, is not just a question of teaching the “small countries” to game the system, but to see through the game the “great powers” are playing.

In closing, I want to congratulate Monica once again for writing such an engaging article and for asking me to comment on it. I look forward to continuing the discussion!