[Opinio Juris is pleased to present this essay by Professor Eugene Kontorovich of Northwestern Law School on the relationship between international law and anti-piracy efforts.  Please be sure to click "continue reading" to read the whole essay.]

The successful ransom by Somali pirates of a Ukrainian freighter laden with arms and armor is indicative of the broader failure of the massive international anti-piracy effort. Because of the important nature of the cargo, the seizure of theFaina was said to be a bridge too far for the pirates – the seized vessel was ringed in by a small flotilla; with the most powerful navies in the world bearing down on them, the pirates, it was said, could not win this one.

The ransom of the Faina can only be understood on the background of the pathetic spectacle playing out everyday in the Gulf of Aden. A naval force from over 20 powerful nations is there to put down a piracy problem that threatens to cripple world commerce – 1/3 of which transits through the Gulf. Western navies are finding and stopping the pirates, only to let them go –  in one case, even giving them a ride back to port. While pirates are international criminals that any nation can prosecute, none of the countries patrolling off Somalia has done so.

 Today international law seeks to resolve massive problems like genocide and decades-long ethnic conflicts, but is proving incapable of dealing with maritime mugging. It is important to understand why the piracy police is just twirling its baton. 

[Eugene Kontorovich is a Visiting Professor at Northwestern University Law School and a contributor to the Opinio Juris On-line Symposium]



I would like the thank Peggy and the rest of the Opinio Jurists for providing this forum for the discussion of new work. I’m grateful to Andrew Guzman for providing comments, and even more grateful for providing charitable ones.



Andrew’s comments raise several important issues about the paper and its limitations.



1. Multifactor tests.



I never thought I’d be guilty of multi-factor tests, but Andrew has caught me red-handed. The kinds of social context that lead welfare maximizing norms can be described, but reduced to an algorithm. Rather than an open-ended multi-part test, what the article may suggest is a flipped presumption. International law is based on strong presumption that customary practices of states lead to desirable norms. Without this presumption, we have no reason to reflexively adopt custom across the board. Once this presumption is dismissed and we are considering whether to adopt particular customs a la carte, we are already in a whole different world. That choice is difficult, but the very notion that such choice makes sense is what I hoped to get at.



Finally, perhaps the most important component of efficient-custom situations is the most easy to get a handle one – the question of whether states are likely to be on both sides of an issue over time.



2. Structural adjudication and the alternatives to custom.



The biggest question this paper runs in to is what the alternative to custom is and whether it is likely to be any better. In private law, custom is selectively incorporated by courts, based on something like the multifactor test just mentioned. If a court rejects a customary norm, it provides its own alternate rule. Of course, international law does not generally get made through courts.



Still, there may be some room for structural “adjudication” with the latter term broadly defined. The way I conceptualize customary international law – and this is going far outside the scope of the article – is that in IL “case” is a situation that arises between nations that is understood to be potentially within the scope of international law. The “original ruling” is made by the states themselves through their choice of action; and whether that ruling is subsequently followed or overruled depends on the reactions of other states. In this model, structural adjudication can be done by the states when choosing to follow a customary norm or not. There is an obvious self-judging problem here, but it is endemic to international law and perhaps offset by reputational or other sanctions.



3. Other grounds for international norms.



The argument of custom is that something should be done because everyone does it. On its face, this seems like childish mimicry. But Hayek and others have shown how in certain circumstances, the thing which winds up over time as the custom is welfare maximizing, though none of the participants in the process may see why or how.



This is the structure of an argument based on custom:

1. Everyone/lots of others have stopped doing x; it seems not doing x is a new custom.

2. Customary behaviors are generally efficient [thus we should not be deterred by an impression that not doing x is unwise].

3. Thus we should stop doing x.

If the major proposition (#2) is false, then arguments to adopt a norm because everyone else has loose much of their force. And such arguments are often made in relation many humanitarian norms, such as the death penalty, to take a prominent example.



Does this mean international humanitarian norms should be disregarded? Not at all. They just require a justification not rooted in practice, but in absolute notions of justice. Indeed, this may help humanitarian law. One need not be embarrassed by the disconnect between practice and theory with such well-established norms like torture, because “custom” was never an adequate basis for them in the first place. Thus those who wish to convince a state to adopt a norm should make a substantive case for the norm itself, rather than point to its customary status.

Abstract



This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply.



The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value.



Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles.



The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.



Full Text