Abstract
The subject of identification of customary international law (CIL) has been under consideration by the United Nations International Law Commission (ILC) since 2012, evoking responses from States and scholars. The ILC has finalized in its second and final reading a set of 16 conclusions.I discuss these conclusions in the light of the well-established doctrine on the formation of CIL. I disucss the “two elements” approach – general practice and its acceptance as law – and offer guidance on capturing the moment of creation of CIL, focusing on relevant factors, in particular the temporal factor. I emphasise the role power, persuasion, consensus, common interests or commonly shared community policies play in the formation of CIL, while noting various forms of practice including the United Nations General Assembly resolutions as important indicators for this purpose. I find many of the conclusions adopted by the Commission well balanced and in consonance with the well-established principles governing the formation of customary international law. Mention may be made in this connection of the conclusion that the practice of international organizations in certain cases also constitutes relevant practice, even as it is clear that it is State practice that predominantly figures in the evolution of “general practice”. It is, however, felt that the principle of persistent objector and that the concept of “specially affected States” has no real basis in practice and are otherwise best accommodated by other well-known principles of international law, such as acquiescence or estoppel or historic rights.
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Notes
For the text of the conclusions adopted on second and final reading, see UN Doc. A/CN.4/L.908 (25 May 2018). The Commission considered and adopted 16 conclusions on the first reading along with commentaries in June 2016. For the text of these conclusions and commentaries adopted on the first reading, see, the Report of the International Law Commission on the Work of Its Sixty-eighth Session (2016) submitted to the UN General Assembly, UN Doc. A/71/10 (hereinafter the Report of the ILC), 76–117.
First Report on Formation and Evidence of CIL of the Special Rapporteur, Michael Wood, UN Doc. A/CN.4/663 (17 May 2013) (hereinafter the First Report); Second Report on Identification of CIL of the Special Rapporteur, Michael Wood, UN Doc. A/CN.4/672 (22 May 2014) (hereinafter the Second Report); Third Report on Identification of CIL of the Special Rapporteur, Michael Wood, UN Doc. A/CN.4/682 (27 March 2015) (hereinafter the Third Report); Fourth Report on Identification of CIL of the Special Rapporteur, Michael Wood, UN Doc. A/CN.4/695 (8 March 2016) and Add.1 (25 May 2016) (hereinafter the Fourth Report); Fifth Report on Identification of CIL by Michael Wood, Special Rapporteur, UN Doc. A/CN.4/717 (14 March 2018) (hereinafter the Fifth Report). The Commission had the benefit of comments and observations made by States and a Memorandum from the UN Secretariat entitled ‘The Role of Decisions of National Courts in the Case Law of International Courts and Tribunals of a Universal Character for the Purpose of the Determination of CIL,’ UN Doc. A/CN.4/691 (2016). In the debate on the draft conclusions at the UN in 2016 about 50 States offered their comments including the Russian Federation, China, India, Brazil, Argentina, Chile, Mexico, Egypt, Indonesia, Sudan, Singapore, Malaysia, Thailand, Poland, the Czech Republic, Slovenia, Japan, South Korea, the USA, the UK, France, Germany and the Netherlands.
In addition to the Fifth Report, the Commission also had a Memorandum from the UN Secretariat on “Ways and means for making the evidence of CIL more readily available”, UN Doc. A/CN.4/710 (2018). Upon a request from the UN, during 2017 and as of now, some 16 States submitted written comments: Austria; Belarus; China; Czech Republic; El Salvador; Israel; the Netherlands; New Zealand; the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden); the Republic of Korea; Singapore; and the USA.
See the comments of the USA, Israel and New Zealand. The Fifth Report, supra note 2 [18].
See, the Statement of New Zealand. The Fifth Report, ibid [16] (brackets added).
BS Chimni’s comment on the subject of CIL questioned the purpose and role to which customary international was put and is still being put. Chimni noted that ‘there is an intimate link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the development of CIL that is concealed by the supposed distinction between “formal” and “material” sources of CIL.’ ‘In fact,’ according to the author, ‘both “traditional” and “modern” CIL sustain the short-term and systemic interests of global capitalism.’ BS Chimni, CIL: A Third World Perspective, 112 American J Intl L (2018) 1–46.
WT Worster, The Inductive and Deductive Methods in CIL Analysis: Traditional and Modern Approaches, 45 Georgetown J Intl L (2014) 445. Stefan Talmon, Determining CIL: The ICJ’s Methodology between Induction, Deduction and Assertion, 26 Euro J Intl L (2015) 417–443. On the practice considered and methodology adopted by the International Law Commission on the identification of customary law as part of its effort to codify international law, see, the Memorandum of the UN Secretariat on “Elements in the previous work of the International Law Commission that could be particularly relevant to the topic”, UN Doc. A/CN.4/659 (2013). See also Stephan Mathias, The Work of the International Law Commission on the Identification of CIL: A View from the Office of Legal Affairs, 15 Chinese J Intl L (2016) 17–31. On the methodology adopted by the ILC in treating its work on CIL, it is observed: ‘the process is integral and, methodologically, predominantly inductive.’ Ibid, 21. In order to identify “opinio juris,” the subjective element of the CIL, the Commission has relied generally on “a rule’s obligatory character” and in some cases referred to the ‘recognition by the States of the necessity of a rule,’ instanced by its commentary to draft article 59 which later became article 62 of the Vienna Convention on the Law of the Treaties, noting that ‘the acceptance of the [rebus sic stantibus] doctrine in international law is so considerable that it seems to indicate a recognition of the need for a safety-valve in the law of treaties’. See, ILC Yrbk (1966) 22 [24]. For measuring the subjective element in the practice of States for a possible rule of CIL, the Commission referred to “general recognition,” or “general acceptance,” and in some case to “belief” or “attitude” of States. Ibid, [26, 27]. Further, the Commission, in its work, distinguished between the subjective element of a rule of CIL and other considerations, such as, courtesy, political expediency, will or compromise, precautionary measures, expressions of intent and aspirations or preferences. Ibid, 22 [27].
On the significance of the work of the Commission for CIL, it is noted that ‘a determination by the Commission affirming the existence and content of a rule of CIL may have particular value; as may a conclusion by it that no such rule exists. This flows from the Commission’s unique mandate from States to promote the progressive development of international law and its codification, the thoroughness of its procedures (including the consideration of extensive surveys of State practice), and its close relationship with States as a subsidiary organ of the General Assembly (including receiving their oral and written comments as it proceeds with its work).’ It is further noted: ‘The weight to be given to the Commission’s determinations depends, however, on various factors including sources relied upon by the Commission, the stage reached in its work and above all upon States’ reception of its output.’ See Report of the ILC, supra note 1, 101 [2]. Along with the work of the ILC, the work of the ICJ constitutes important source material for identification and evidence of CIL. On the role of the Court in this regard, see, Brian McGarry, The Development of Custom in Territorial Dispute Settlement, 8 J Intl Dispute Settlement (2017) 339–365.
See, United Nations Office of Legal Affairs Treaty Section, <https://treaties.un.org/Pages/Overview.aspx?path=overview/overview/page1_en.xml>.
See, the UNCTAD estimate at <http://investmentpolicyhub.unctad.org/IIA>.
It was suggested by Baxter in this regard, that ‘the proof of a consistent pattern of conduct by non-parties becomes more difficult as the number of parties to the instrument increases.’ As Thirlway explained, referring to this problem, termed as the Baxter paradox, ‘the more popular the rule is as a treaty provision, the less its chances (it would seem) of becoming a demonstrable customary rule also.’ See, for a discussion of this issue, the Third Report, supra note 2, 29 [41] (for the conclusion that ‘the Baxter paradox is not a genuine paradox’). For a similar view of Crawford, see, ibid. According to Thirlway, the Baxter paradox could still form a basis for serious contention in a given case, unless some necessary adjustments are made to the doctrine on CIL, even if for the present it remained essentially a theoretical issue without any real case history. See, Hugh Thirlway, Professor Baxter’s Legacy: Still Paradoxical? 6:3 ESIL Reflection (2017) 1–7, 2, 7.
Conclusion 11 notes that a rule set forth in a treaty may reflect a rule of CIL if it is established that the treaty rule:
(a)codified a rule of CIL existing at the time when the treaty was concluded;
(b)has led to the crystallization of a rule of CIL that had started to emerge prior to the conclusion of the treaty; or
(c)has given rise to a general practice that is accepted as law (opinio juris), thus generating a new rule of CIL.
However, it is further noted that the ‘fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of CIL.’ See supra note 1 for the conclusions adopted by the Commission in its second reading. For a discussion on the relationship between treaties (including bilateral and multilateral and law-making treaties as well as unratified treaties on the one hand and CIL on the other), see, the Third Report, supra note 2, 6–38.
For some early discussion of the complexity surrounding the formation of CIL, see, Joseph L Kunz, The Nature of CIL, 47 American J Intl L (1953) 662–669.
See, for a preliminary bibliography on the subject, UN Doc. A/CN.4/695/Add.1 (2016).
For a summary of the views of some Asian African legal advisers, see, Rahamat Mohamad, Some Reflections on the International Law Commission Topic “Identification of CIL,” 15 Chinese J Intl L (2016) 41, 43, summarizing the views of the Asian African legal experts who participated in the work of an informal working group constituted by the Asian African Legal Consultative Organization (AALCO) to study the work of the Commission on the identification of CIL. Secretary General Mohamad noted that there was ‘heated debate, no little confusion, over the nature, limits, and availability of CIL.’
Originally, the Commission in 2012 was to consider the topic entitled ‘Formation and Evidence of CIL.’ However, in 2013, the Commission changed the title of the topic to ‘Identification of CIL’ after considering the First Report of the Special Rapporteur Michael Wood, supra note 2 and the Secretariat Memorandum on elements in the previous work of the International Law Commission that could be particularly relevant to the topic”, supra note 7. In response to comments made by Poland, it is explained that ‘the change of the topic’s name was made on the understanding that matters relating to the formation of CIL remained within the scope of the topic’; and ‘implied inevitably an investigation into the[ir] formation.’ This is reflected in the commentary adopted in 2016. See, the Fifth Report, supra note 2, 8 [25]. The work, however, as the Special Rapporteur emphasized, does not involve resolution of “largely theoretical controversies”; nor determination whether a particular principle has the character of CIL.
See also the view of the USA which also felt that reference to “rights” was unnecessary. See, the Fifth Report, supra note 2, 24–25 [73]. While discussing the subject of identification of CIL, the Report sometimes referred to the subjective element in terms of “accepted as law” and other times as opinio juris. Some members noting this difference preferred that the Special Rapporteur use the term opinio juris, which is widely used in literature and practice. Forteau while noting this preference explained: ‘It also reflected the fact that the creation of custom did not rest on individual acceptance by each member of the international community but on a generally held view within that community,’ see the summary records of the ILC, UN Doc. A/CN.4/SR.3225 (18 September 2014) 6. See also, Sean D Murphy, Identifying the Rules for Identifying CIL, 108 America J Intl L Unbound (2014) 169–173, 171: ‘One key issue concerns the basic elements of this source of law. Unlike the approach taken by the International Law Association in its 2000 Statement of Principles Applicable to the Formation of General CIL, which significantly downplayed the role of opinio juris, the Commission appears on track to reassert emphatically the traditional two-element approach. Indeed, the very term “opinio juris” was thought so important by members of the Commission that the term is now inserted into the articles in all places where Special Rapporteur Wood originally proposed simply saying “accepted as law.” In paragraphs 21–27 of his Second Report, the Special Rapporteur defended and the Commission accepted ‘maintaining the traditional view on this issue.’ See, the Second Report, supra note 2, [21]. For the views of the International Law Association, see its London Statement of Principles Applicable to the Formation of General CIL, with commentary: Resolution 16/2000 (Formation of General CIL), adopted at the sixty-ninth Conference of the International Law Association, in London, on 29 July 2000.
See, Judgment, [2012] ICJ Rep 99, 122 [55]. For citation of other cases, see, the Second Report, supra note 2, fn. 24, 7–8. One of the early cases to assert the necessity of the condition of opinio juris was the Case of the S.S. “Lotus” [1927] PCIJ (Ser A) No 10, 28. For the support of the two-element approach in State practice, see, the Second Report, supra note 2, 8–9 [24].
While positivists maintain that even for CIL to be binding on a State required its express consent, a large majority of writers and practitioners reject the view that express consent is required for custom. See, Jonathan I Charney, The Persistent Objector Rule and the Development of CIL, 56 British Yrbk Intl L (1986) 1, fn. 1, 2–3, fn. 3. See, for a recent pleading in favour of the “subsequent objector” rule, Curtis A Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L J (2010) 202–275. The authors base their case on their conclusion: ‘While there are many puzzling features of CIL, its blanket disallowance of any subsequent opt-out right is particularly striking in light of the widespread withdrawal rights available under treaty law. This feature becomes more remarkable considering the substantial overlap today between treaties and CIL, both in terms of the subjects that they regulate and in terms of the content of their rules.’ This is a pleading that is even more difficult to accept than the earlier postulates of positivists for whom consent was the basis for custom, a position that is long since abandoned and cannot be accepted in the interest of promoting and defending the rule of law governing contemporary “international community.” In this connection, the observation of D’Amato is worth recalling:
What makes international custom authoritative is that it consists of the resultants of divergent state vectors (acts, restraints) and thus brings out what the legal system considers a resolution of the underlying state interests. Although the acts of states on the real-world stage often clash, the resultant accommodations have an enduring and authoritative quality because they manifest the latent stability of the system. The role of opinio juris in this process is simply to identify which acts out of many have legal consequence.
See, Anthony D’Amato, Trashing CIL, 81 American J Intl L (1987) 101–105, 102.
See, K Wolfke, Custom in Present International Law, 2nd edn (Martinus Nijhoff , Leiden, 1993) 116.
It is observed:
As was noted in the first report, certain authors have sought to devise alternative approaches, often emphasising one constituent element over the other, be it practice or opinio juris, or even excluding one element altogether. This was also the case, to a degree, with the work of the International Law Association that culminated in its London Statement of 2000, which tended to downplay the role of the subjective element. While such writings are always interesting and provocative, and have been (and should be) duly taken into account, it remains the case that they do not seem to have greatly influenced the approach of States or courts. The two-element approach remains dominant.
See, the Second Report, supra note 2, 12 [27].
Ibid, 12–13 [27–28].
See, the North Sea Continental Shelf Cases, Judgment [1969] ICJ Rep 3.
See, the Fourth Report, supra note 2, 5 [16].
See for an example on “necessity” providing a basis for States electing to endorse the principle of “rebus sic stantibus” under article 62 of the Vienna Convention on the Law of Treaties, see Mathias, supra note 7, 22.
See, Charles De Visscher, Theory and Reality in Public International Law, PE Corbett (trans), rev edn (Princeton University Press, New Jersey, 1968) 157, cited in Oscar Schachter, The Role of Power in International Law, ASIL Proceedings (1999), 200–205, 202.
Ibid. Elsewhere Schachter presented a more comprehensive analysis on the formation of CIL. Schachter noted that in assessing “opinio juris,” or a sense of legal obligation States perceive while accepting certain practice as law, Judges are guided by their own jurisprudential assumptions and use such criteria as ‘the will of the community, customary behavior, the sense of “rightness,” reason, necessity, natural law, major purposes and so on’. See, Oscar Schachter, Towards a Theory of International Obligation, 82 Virginia J Intl L (1968) 300, 304. K. Venkata Raman analyzed the processes and functions of customary law in relation to major policies and goals of the world community as part of his unpublished doctoral dissertation at Yale, International Customary Law and World Public Order (1967), cited in Schachter, ibid, 315 (fn. 58).
The Fourth Report, supra note 2, 8 [17].
See the Fourth Report, ibid for James R Crawford, The Identification and Development of CIL, Keynote Speech at the Spring Conference of the ILA British Branch, 23 May 2014, citing P Allott, Language, Method and the Nature of International Law, 45 British Yrbk Intl L (1971) 103, 129. McDougal and his associate famously referred to the process as one of “continuous claim and response,” MS McDougal & NA Schlei, The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security, 64 Yale L J (1955) 648, cited in Mohamad, supra note 15, 43.
The acceptance of a 12-mile territorial sea took its own time even after a large majority followed the practice, especially after the failure of the 1958 and 1960 diplomatic conferences to endorse the same, thanks to the resistance exhibited by the USA, the UK, Japan and a few other States. Eventually it became the law both under customary and conventional law following the adoption of the limit in 1982 as part of the 1982 United Nations Convention on the Law of the Sea. 1833 UNTS 397, reprinted in 21 ILM 1261 (1982).
In the case of the continental shelf, adjacent coastal States were deemed to have exclusive jurisdiction and control as a matter of CIL even before the Geneva Convention on the Continental Shelf was concluded in 1958, thanks to the 1945 Truman (USA) Proclamation which initiated the general practice. See, P. Sreenivasa Rao, Public Order of the Ocean Resources: A Critique of the Contemporary Law of the Sea (MIT Press, Cambridge, 1975). Similar is the case with the evolution of the doctrine of the exclusive economic zone over which coastal States are accorded exclusive jurisdiction and control over the living and non-living resources up to a distance of 200 nautical miles. The proposal, based originally on the claim of the Latin American coastal States concerning the patrimonial sea, struck a chord with other coastal States around the world. Here again while it is clear that the law concerning the EEZ evolved in practice over a period of time, it gained necessary opinio juris at some point after 1975 when the formal negotiations on a new law of the sea commenced and before the adoption in 1982 of the United Nations Convention on the Law of the Sea and its entry into force in 1994. See, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment [1985] ICJ Rep 13, [34] (‘It is in the Court's view incontestable that … the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law’). For the development of the concept of the exclusive economic zone, see, for example, Y Tanaka, The International Law of the Sea (CUP, Cambridge, 2012) 124–125, cited in the Third Report, supra note 2, 31, fn. 86 [39]. For a brief discussion of these matters, see, Malcolm N Shaw, International Law, 5th edn (CUP, Cambridge, 2003); on exclusive economic zone (for citation of works), 517, fn. 117; as of January 2002, 115 coastal States claimed an EEZ, 520, fn. 131; on the law of the continental shelf, 521–527.
On instant CIL, see, Bin Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law, 5 Indian J Intl L (1965) 23.
Kunz, supra note 13, 667. On the question of silence as a factor in the assessment of evidence concerning the existence including the formation of CIL, see, conclusion 10, the Fifth Report, supra note 2, 37 [110].
Conclusion 10 (3) reads:
Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that States were in a position to react and the circumstances called for some reaction.’ Conclusion 6 (1) also notes that practice relevant for the formation of CIL ‘may, under certain circumstances, include inaction’. The commentary adopted on first reading to this provision notes: ‘The words “under certain circumstances” seek to caution, however, that only deliberate abstention from acting may serve such a role; the State in question needs to be conscious about refraining from acting in a given situation. Examples of such omissions (sometimes referred to as “negative practice”) include abstaining from instituting criminal proceedings; refraining from exercising protection in favour of certain naturalized persons; and abstaining from the threat or use of force.
See, Report of the ILC, supra note 1, 91, fn. 283 for illustrations: The Case of the S.S. “Lotus”, supra note 18; Nottebohm Case (second phase), Judgment [1955] ICJ Rep 4, 22; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment [2012] ICJ Rep 99, 135.
See, the Fifth Report, supra note 2, 26 [78]. For a similar comment on proposed conclusions 10 and 11 (Acceptance as law) of the Asian African Legal Consultative Organization’s informal expert group, see, <http://www.aalco.int/54> (‘Inaction may be taken as evidence of opinio juris only if the situation demands reaction from a concerned State, which is clearly conscious of this situation and has taken a conscious decision not to act’).
See for the views of Judge de Brichambaut of the International Criminal Court, the Fifth Report, supra note 2, 28, fn. 245.
See the view of the Czech Republic cited in the Fifth Report, supra note 2, 27 [78]. In its written comments, the Czech Republic also suggested that the Commission should:
analyze the differences between the failure to react to relevant practice in cases where a new rule of CIL might be potentially created in areas which have not yet been regulated by any rule of CIL on the one hand, and, on the other hand, in cases when a potential new rule would deviate from an already established customary rule.
Ibid.
On this aspect, see, Jennings and Watts (eds) Oppenheim’s International Law (OUP, Oxford, 1992) 227–234, 238–240 (special provisions in the 1978 Vienna Convention on Succession of States in respect of treaties dealing with the newly independent States).
See, the Fifth Report, supra note 2, 28 [82]. This is important because the commentary in paragraph 3 to conclusion 6 (1) adopted on the first reading was at issue. While making it clear that inaction may count as practice “under certain circumstances,” it noted that ‘only deliberate abstention from acting may serve such a role.’ Ibid, 91. This required further consideration and elaboration in the light of conclusion 10 (3). The Report of the ILC, supra note 1, 99 [7], 100–101. In any case, ‘deliberate abstention’ as a criterion is not an appropriate one in this context as it might raise difficult evidentiary issues concerning the motives of the abstaining State.
It is said of CIL that it is an “amorphous but formidable jellyfish.” Mathias, supra note 7, 18, fn. 1. There was widespread agreement among members of the Commission as well as among States which commented on the work of the ILC on the topic on the importance of not being “overly prescriptive,” noting that the flexibility of the CIL process “must be preserved.” See, the Second Report, supra note 2, 3 [6]. See, the Fifth Report, supra note 2, 7 [20] where it is noted: ‘It should also be remembered, however, that the conclusions ought not to be too rigid,’ as ‘they need to apply in the wide range of possible situations that may arise in practice’; that CIL as a source of law inherently defies exact formulation and as Australia has put it, it ‘was essential to ensure that the dynamism which characterized the formation and development of rules of custom was reflected in the Commission’s guidance on the topic.’ For a similar view, see the report of the informal working group of the Asian-African Consultative Organization, Mohamad, supra note 15, 45–46, which also endorsed the view that the outcome however should not be ‘overly prescriptive in order to properly reflect the flexibility of custom.’
For the views of States endorsing the same view see, the Fifth Report, supra note 2, 10, fn. 63 [31].
See in particular the commentary to conclusions 5, 90 [2], 6, 91–92 [4] and 7 (2), 93 [4–5] dealing with inconsistent practice of a State, the Report of the ILC, supra note 1. While it is generally understood that acts performed by a State in its external relations are most relevant as evidence of State practice, some useful and well-known examples may be noted: Official statements made by States, particularly those made by Heads of State, Heads of Government or Ministers in charge of external relations of States and those officials with full powers granted to them to negotiate bilateral and international treaties and participate in the work of international organizations, such as Ambassadors accredited to other States or Permanent Representatives accredited to international organizations, oral or written depositions or records submitted as parties to a dispute before international courts or tribunals, treaties to which States are parties. Decisions of the supreme national courts binding on States carry weight as evidence of State practice. Unilateral statements made or acts undertaken by States may also be considered as relevant State practice.
Various forms of evidence include but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions and conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference. See, the Fifth Report, supra note 2, 47 [77]. The work of the ILC and the decisions of the ICJ are regarded as the secondary or subsidiary means of evidence. See, conclusion 13 (1). Similarly, teachings of the most highly qualified publicists are also considered as secondary evidence. See conclusion 14. Fifth Report, supra note 2, 32–34.
The Special Rapporteur captures this point in the commentary to conclusion 5:
To qualify as State practice, the conduct in question must be “of the State.” The conduct of any State organ is to be considered conduct of that State, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. An organ includes any person or entity that has that status in accordance with the internal law of the State; the conduct of a person or entity otherwise empowered by the law of the State to exercise elements of governmental authority is conduct “of the State,” provided the person or entity is acting in that capacity in the particular instance,
see, the Report of the ILC, supra note 1, 90 [2].
Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil des cours (1993-IV) 291. India took a similar view when it noted that “general practice” required for the formation of customary law should be ‘representative and reflective of at least all major political and socio-economic systems of the world’s various regions’. See Mohamad, supra note 15, 45.
See, for the view of Special Rapporteur Wood that ‘to a large extent the topic aims to precisely make sure that the task of identifying rules of CIL is not done in manner that is not rigorous and systematic’, Michael Wood, Editorial Comment, 15 Chinese J Intl L (2016) 3, 9 [25]. For the views of Sienho Yee, elaborating the policy in favour of a ‘rigorous and systematic approach’, see Sienho Yee, Editorial Comment, “A Reply to Sir Michael Wood’s Response…”, ibid, 33–40, at 38 [14]. In this connection, whether a deductive or inductive approach would better serve the purpose is also debated. It is observed that ‘[s]cholarly commentary on the ICJ’s jurisprudence regarding custom since North Sea suggests a shift from the ‘inductive approach applied in that case wherein custom is derived from specific instances of state practice to a later “deductive” approach, which begins with general statements of rules rather than particular instances of practice.’ See, McGarry, supra note 8, 342–343. For the views of the USA and Israel, suggesting caution in relying on the deductive approach, see Fifth Report, supra note 2, 9 [29].
See, Shaw, supra note 31, 177 (where he noted that ‘it is less clear that in practice this position was maintained’).
While the estimates of the number of such international organizations vary, it could be said conservatively that there are at minimum 126 (US State Department estimate) and a maximum of 265 (Union of International Associations estimate). See, Richard Woodward & Michael Davies, How Many International Organizations Are There? The Yearbook of International Organizations and its shortcomings (11 October 2015), available at <https://www.psa.ac.uk/insight-plus/blog/how-many-international-organisations-are-there-yearbook-international>.
See the views of Germany (UN Doc. A/C.6/71/SR.21, [116]), welcoming the specific reference to the European Union in that context, and the European Union (UN Doc. A/C.6/71/SR.20, [45]) at the meeting of the UN Sixth (Legal) Committee, 71st Session of the UN General Assembly, cited in, the Fifth Report, supra note 2, 11 [36] ( fns.76 and 77 respectively).
Ian Brownlie, Principles of International Law (OUP, Oxford, 2003) 657. Rahmatullah Khan, Implied Powers of the United Nations (Vikas, Delhi, 1970).
James R Crawford, Brownlie’s Principles of Public International Law, 8th edn (OUP, Oxford, 2013) 195.
Tullio Treves, CIL, in, Max Planck Encyclopedia of Public International Law (2006) [50]. See also Draft articles on the responsibility of international organizations, General commentary, [7], Report of the International Law Commission 2011, UN Doc. A/66/10, [88]. A number of scholars with first-hand experience with the work of the UN and other international organizations have taken a more progressive and positive view of the role of international organizations in the formation of CIL in their own right. See, the Third Report, supra note 2, 64, fn. 179 [76]. See, C.H. Alexandrowicz, On Law Making Functions of Specialized Agencies of the UN (Angus and Robertson, Melbourne, 1973), ibid, 50, fn.175 [73]. See also Sloan and Schachter, both well-known experts on the law and practice of the UN, ibid, 53, fn.180 [76]. See also, Mathias, supra note 7, 23–31. He noted three different roles for IOs in the formation of CIL: as a stage for the CIL, as an actor in the process of formation of CIL and as spectators in the formation of CIL. On the lesser known aspect of the work of the Secretariat, discounting its work as part of the internal practice of the concerned IO, he pointed out that: ‘while they operate under the supervision of the intergovernmental organs, the administrative bodies of an organization enjoy some autonomy, and their acts may properly be considered “practice of international organization” distinct from that of the member States.’ Ibid, 28. The main challenge in this regard, however, as he admits, is ‘one of access to the relevant information,’ partly alleviated by the UN (Office of Legal Affairs) publication of its Juridical Yearbook including a section with legal opinions. Ibid, 28–29. The policies and priorities of the IOs expressed as part of the work of their secretariat memorandums issued under the authority of their highest officials constitute, in his opinion, an autonomous opinio juris (which does not necessarily mirror that of member States); and the same ‘has allowed the development of a corresponding practice in operations under United Nations command and control.’ Ibid, 31. He points out in this connection that the ILC’s Special Rapporteur Wood ‘appears to be taking quite a restrictive approach, insofar as he limits its significance to operational activities linked to the functions and powers attributed to international organizations.’ Ibid, 28.
Secretariat Memorandum on Elements in the previous work of the International Law Commission that could be particularly relevant to the topic, supra note 7, Observation 13, 23, fn. 87.
See the Third Report, supra note 2 [70]. On the question of the weight to be given to the practice of an international organization, the informal working group of AALCO submitted that ‘the practice of an international organization can count toward the formation or expression of CIL only if it reflects the practice of its member States and can be counted only with due regard to the strength of the support of its membership and the representativeness of the practice vs. the generality of States in the international community.’ See, Comment E on Provisional Draft Conclusion 4 [5], paragraph 2 (Requirement of practice), the Report of Asian-African Legal Consultative Organization (AALCO) Informal Expert Group on CIL (24 March 2015), Annex <http://www.aalco.int/54thsession/AALCOIEG%20Chairman's%20Statement%20and%20Special%20Rapporteur's%20Report%2020150324.pdf>.
Alain Pellet, Article 38, in, A Zimmermann et al (eds), The Statute of the International Court of Justice: A Commentary, 2nd edn (OUP, Oxford, 2012) 816–817.
See in this connection factors considered useful in determining the impact of acts of the international organization on the formation of CIL. Wouters and De Man noted:
Whether actions of international organizations can be attributed to the State community as a whole is a complex question and the answer depends on such divergent factors as, inter alia, the nature of the organization (political vs. technical), the inclusiveness of its membership (universal and total vs. regional and limited), the composition of the relevant organ adopting a certain measure (plenary vs. partial) and the decision-making method applied (unanimity and consensus vs. majority).
See, J Wouters & P De Man, International Organizations as Law-Makers, in, J Klabbers & Å. Wallendahl (eds) Research Handbook on the Law of International Organizations (Edward Elgar, Chetleham, 2011) 190, 208.
Treves, supra note 52 [52]. See, for example, Prosecutor v. Tadić, case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber of the International Tribunal for the Former Yugoslavia), 2 October 1995 [115] (reference to declarations of the Council of the European Union).
Some doubts were, however, raised, as part of the debate in the ILC at its session in 2014. For the views of Murphy, see the summary records of the ILC, UN Doc. A/CN.4/SR.3224 (16 July 2014) cited in the Third Report, supra note 2, at fn. 161 [68]. See also for a response, Michael Wood, International Organizations and CIL, 48 Vanderbilt J Transnational L (2015) 609.
See, the Fifth Report, supra note 2, 11–13 [36–39].
Ibid, 14–15 [42–44].
Ibid, 15 [45].
Ibid, 16–17 [48]. See also [3–8] of the commentary on conclusion 4 (2) adopted on first reading, the Report of the ILC, supra note 1, 88–89.
See, the Fifth Report, supra note 2, 16 [46].
Article 17 (2) of the UN Charter provides an exception in respect of expenses as apportioned by the General Assembly which ‘shall be borne by the Members.’ See also, Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion [1962] ICJ Rep 151.
See, the Report of the ILC, supra note 1, 106 [1] referring to Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226 as being to the point.
The author had an opportunity to consider the matter as part of his broader study, PS Rao, supra note 31, 88–89, 240, fn. 41.
Ibid, fn. 41, for citation of important contributions of Rosalyn Higgins, Richard Falk, Sloan, DHN Johnson and Vallat. See also, Certain Expenses of the United Nations, supra note 64.
Stephen Schwebel, The Effect of Resolutions of the UN General Assembly on CIL, 73 ASIL Proceedings (1979) 304.
Harold Lasswell and Myres S McDougal pioneered study of international law as a policy science, famously known as the New Haven School. See, MS McDougal & WM Reisman, International Law in Policy-Oriented Perspective, in, R St J Macdonald & DM Johnston (eds), The Structure and Process of International Law (M Nijhoff, The Hague, 1983) 215, cited by Schachter, supra note 26, 201. On the relevance of power in the making of CIL, Judge De Visscher declared, ‘Every international custom is the work of power.’ De Visscher, supra note 26, 154. Further, as Schachter noted, power is manifested in many ways and unevenly distributed, and, unlike money, it ‘is not fungible’. On the role of power in the making of international law, he explained: ‘Its utility depends on context and the specific factors that affect the power relationship. Even the one recognized superpower is increasingly made aware that its immense power is not equally usable and effective in all places and all conditions.’ ‘It is also relevant to international law’, he added, ‘that the imprimatur of a pluralist world community is generally required to create or modify the common law of states. The unequal distribution of power and the presumed requirement of consensus among the international community as a whole (the “general will”) invite more specific questions on the ways in which international law is created and sustained.’ Schachter, supra note 26, 202.
See, Anglo-Norwegian Fisheries Case, Judgment [I951] ICJ Rep 116. The Decree of 12 July 1935 sets out in the preamble the considerations on which its provisions are based. In this connection it refers to ‘well-established national titles of right,’ ‘the geographical conditions prevailing on the Norwegian coasts,’ ‘the safeguard of the vital interests of the inhabitants of the northernmost parts of the country’; it further relies on the Royal Decrees of February 22, 1812, October 16, 1869, January 5, 1881, and September 9, 1889. Ibid, 125.
Ibid, 131.
Colombian-Peruvian Asylum Case, Judgment [1950] ICJ Rep 266.
The Court referring to this claim set out the requirements to sustain such a claim when it noted that a:
Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party.’ [Further, it pointed out that the] Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law.
Ibid, 276.
According to the Court, the
facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the officia1 views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.
Ibid, 277.
Ibid, 277–278.
Olufemi Elias, Persistent Objector, Max Planck Encyclopedia of Public International Law (OUP, Oxford, 2008), article updated as of September 2006, 3 [12] <www.mpeil.com>.
Mathias, supra note 7, 22 [28]. On some occasions, the Commission ‘ascribed importance to the absence of opposition of a rule in the practice of States.’ Charney, supra note 19, 6, noted that, according to Brownlie, consent is to be implied in the absence of initial active dissent.
Conclusion 15 (2) reads: ‘The objection must be clearly expressed, made known to other States, and maintained persistently.’ Relying on several authorities and the work of the Commission on reservations to treaties, the Special Rapporteur considered that persistence is the very essence of the persistent objector rule without which silence could amount to acquiescence. See for his comments, the Fifth Report, supra note 2, 37 [110]. Lessening the rigor of the rule would, in his view, run counter ‘not only to the common understanding of the persistent objector rule (as well as its very name) but also to the way in which custom may operate as a source of international law.’ Further, according to him, the requirement ‘has indeed been recognized in international practice; by doctrine; and by the Commission itself, in its 2011 Guide to practice on reservations to treaties.’ The commentary to conclusion 15 adopted in 2016 by the Commission noted that the requirement that the objection must persistently be maintained should be assessed pragmatically ‘bearing in mind the circumstances of each case’. In other words, ‘the objection should be reiterated when the circumstances are such that a restatement is called for (that is, in circumstances where silence or inaction may reasonably lead to the conclusion that the State has given up its objection). See the Report of the ILC , supra note 1, 114 [9]
See the statement of Israel, the Fifth Report, supra note 2, 36 [108]. For views favouring a more lenient application of this requirement, see the Fifth Report, ibid.
Silence to comment and participate in the emerging dialogue on the formation and identification of CIL on the part of a large majority of countries is due to the non-assignment of priority and resources to encourage study and promote respect for national scholarship and expertise in the field of international law commensurate with its value for foreign policy, and its role in regulating international relations promoting rule of law based on universally shared common interests. Fundamental is also the need to recognize that as a discipline international law is distinct in its sources and purpose from national law and that it should not be confused with study and expertise on national law and its constitutional system.
See the view submitted by China in response to the conclusions adopted by the ILC on its first reading, its written comment, p. 3, and submissions in the debate at the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/71/SR.20, [69], cited in the Fifth Report, supra note 2, 36, fn. 331.
Charney, supra note 19, 5.
He notes in particular that the ‘American disenchantment with the United Nations over the last decade in part reflects the realization that the multilateral process cannot be controlled by the United States.’ Further, it is noted that ‘the multilateral process through which such presumptively valid rules emerge also provides for more obvious opportunities to state objections than did the classic process of accretion through bilateral process.’ With the age of decolonization behind, it is suggested that ‘the categories of new and old states will tend to lose their relevance as more and more areas of international law will be subject to the multilateral processes,’ and accordingly for the first time, ‘the principle of persistent objector will provide an equal opportunity for all states.’ See, Ted L Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harvard Intl L J (1985) 457, 466–467.
Ibid, 457. It is noted that in the Fisheries case, which involved considerable discussion of the persistent objector rule, ‘neither the Norwegian nor the British government provided any … examples for the Court, although they concurred on the validity of the principle.’ Norway relied in support of the rule on “four noted publicists,” who also did not provide ‘any concrete instances of the principle’s appearance in practice.’ Ibid, 460. Some examples of States failing to invoke or give effect to the principle in situations where it could have been applicable were also noted: The case of the Soviet Union unsuccessfully claiming absolute immunity during a period when the restrictive rule was becoming predominant, the case of the United States notwithstanding its traditional position in support of a 3-mile territorial sea, not invoking nor others accepting its entitlement to the status of persistent objector in the face of growing support for the practice of a large majority of States claiming a 200-mile fishery zone, and the inability of the US and some other nations to hold on to their opposition to the majority view that the deep seabed may be mined only in accordance with the international seabed regime that came to be established as part of the 1982 Law of the Sea Convention (later yielding to some amendments in 1994 to accommodate some of the interests espoused by the USA and some other Western European States and Japan). Ibid, 461–462.
It is noted that the ‘persistent objector rule is quite frequently invoked and recognized, both in international and domestic case law as well as in other contexts. While there are differing views, the persistent objector rule is widely accepted by States and writers as well as by scientific bodies engaged in international law.’ Report of the ILC, supra note 1, 113 [4]. For illustration of cases, see ibid, fns. 354, 355 and 356.
Elias, supra note 76, 5 [17]. One incidental benefit of relying on this line of argument is that it would place the burden proof on the party asserting that its claim is based on CIL.
See, the Fifth Report, supra note 2, 35 [107].
This is confirmed by the commentary to conclusion 15: Quoting the ICJ in the North Sea Continental Shelf cases, it is noted that: ‘Rules of CIL, “by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour”’. See the Report of the ILC, supra note 1, 112 [1]. See Charney, supra note 19, 2, fn. 3 for a mention of similar views by Sir Hersch Lauterpacht, Brierly, Akehurst, Fitzmaurice, CHM Waldock, dissent of Judge Lachs in the North Sea Continental Shelf cases and Charles D Visscher. Charney, ibid, summed up by noting: ‘In practice, States are bound by rules to which they have not given their express consent.’ He also noted that this view corresponds to the position taken even by Socialist States who otherwise insist on consent to be bound by a particular principle of international law when they allowed ‘finding of consent based on the most indirect evidence.’ See also Charney, ibid, 2, fn. 4, citing views of GI Tunkin, Remarks on the Juridical Nature of Customary Norms of International Law, 49 California LR (1961), 419, 421.
For acceptance of this view by the USA, see the written comments of the United States, the Fifth report, supra note 2, 9, fn. 59.
The Fifth Report, ibid, 10 [33]. The commentary to conclusion 15 noted that ‘when a State that has persistently objected to an emerging rule of CIL, and maintains its objection after the rule has crystallized, that rule is not opposable to it. This is sometimes referred to as the persistent objector “rule” or “doctrine” and not infrequently arises in connection with the identification of rules of CIL.’ See the Report of the ILC, supra note 1, 112 [1]. It is clarified that ‘the expression “not opposable” is used in order to reflect the exceptional position of the persistent objector.’ Ibid, 113 [6]. Further, ‘(I)f a rule of CIL is found to have emerged, the onus of establishing the right to benefit from persistent objector status lies with the objecting State.’ Ibid, 113 [3].
See, for example, C.H. Alexandrowicz, Empirical and Doctrinal Positivism in International Law, 47 British Yrbk Intl L (1974–75) and RP Anand, New States and International Law (Hope India, New Delhi, 1972), cited by Charney, supra note 19, 2, fn. 6. See, Chimni, supra note 6, for a critical view of the role CIL played during the colonial period. The author advanced ‘the hypothesis that there is an intimate and inextricable link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the evolution of CIL’. He also contended that ‘the historical role of CIL has been to facilitate the functioning of global capitalist system by filling crucial gaps in the international legal system.’ In this connection, it is pointed out that ‘these gaps relate to either short term interests of capitalist states or the systemic interests of the global capitalist system.’ Ibid, 4. The author also refers to ‘different techniques used to prevent third world states from using CIL to frame rules to the disadvantage of powerful capitalist nations, epitomized by the principle of persistent objector.’ Ibid, 5.
On the role of unilateral acts in the making and application of international law, see the work of the ILC on Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations and in particular guiding principle 7 which it adopted on second reading in 2006, which reads: ‘A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated.’. See, the Report of the International Law Commission on the Work of Its Fifty-eighth Session (2006) submitted to the UN General Assembly, UN Doc. A/61/10, 159, 164–165 [177]. The principle is based on the Nuclear Test cases, and others, cited at ibid, fns. 920–923, 925 before the ICJ
See, Charney, supra note 19, 15–16, referring to the Scandinavian practice of claiming a 4-mile territorial sea, when most others maintained a 3-mile limit. On prescription and acquiescence, see the joint dissent of Judges Simma and Abraham in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment [2008] ICJ Rep 12, 122 [17]. The learned Judges identified factors for a right under prescription to arise: exercise of sovereign authority and intent; an exercise that is long, public and visible for establishing acquiescence. See also, Jennings, who noted: ‘For prescription, therefore, the possession must be long-continued, undisturbed, and it must be unambiguously attributable to a claim to act as sovereign. It depends as much on the quiescence of the former sovereign as on the consolidation through time of the new. It follows also that the acquisition of a title to parts of the high seas must always be a prescription and not an occupation, for the high seas are not res nullius.’ RY Jennings, The Acquisition of Territory in International Law (Manchester University Press, Manchester, 1963) 23. On estoppel, the Arbitral Tribunal in Chagos Marine Protected Area, after reviewing the relevant case law on this principle, and noting that as an international law principle it differed from ‘complicated classifications, modalities, species, subspecies and procedural features’ of its municipal law counterpart, summarized its principal thrust as follows:
… estoppel may be invoked where (a) a State has made clear and consistent representations, by word, conduct, or silence; (b) such representations were made through an agent authorised to speak for the State with respect to the matter in question; (c) the State invoking estoppel was induced by such representations to act to its detriment, to suffer a prejudice, or to convey a benefit upon the representing State; and (d) such reliance was legitimate, as the representation was one on which the State was entitled to rely.
See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No 2011-3, Award (18 March 2015) <www.pca-cpa>. Noting that acquiescence can be regarded as a special form of estoppel, it is submitted that estoppel must be distinguished from tacit agreement, unilateral declarations and bilateral customs, which are similar concepts but different to avoid fragmentation. See, Pan Kaijun, A Re-Examination of Estoppel in International Jurisprudence, 16 Chinese J Intl L (2017) 751–786.
See for an elaboration of this point, Tomuschat, supra note 45, 290–303.
Fisheries Jurisdiction (UK v Iceland), Merits, Judgment [1974] ICJ Rep 3.
For Iceland’s argument in this respect as identified by the Court, see, ibid, 25 [55]. The Court observed in this respect thus: ‘State practice on the subject of fisheries reveals an increasing and widespread acceptance of the concept of preferential rights for coastal States, particularly in favour of countries or territories in a situation of special dependence on coastal fisheries.’ Ibid, 26 [58]. It also held: ‘The preferential rights of the coastal State come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some system of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation. This situation appears to have been reached in the present case.’ Ibid, 27 [60]. However: ‘The Icelandic regulations challenged before the Court have been issued and applied by the Icelandic authorities as a claim to exclusive rights thus going beyond the concept of preferential rights.’ Ibid, 28 [61]. Besides the fact: ‘It also disregards the rights of the Applicant as they result from the Exchange of Notes of 1961.’ Ibid, 29 [67]. Iceland, being a party to the Exchange of Notes, also recognized these rights. Ibid, 29 [65].
Ibid, at 29 [65]. Given the fact that there was practice in favour of preferential rights shared by both Iceland and the UK, and in view of the needs of honouring necessary conservation measures, the Court found that ‘both States have an obligation to take full account of each other’s rights and of any fishery conservation measures the necessity of which is shown to exist in those waters.’ Ibid, 31 [72].
The Second Report, supra note 2, cited in Murphy, supra note 17, 172.
For the views or comments of States, see, the Fifth Report, supra note 2, 22 [64]. China explained that ‘[t]he practice of any country, whether it be big or small, rich or poor, or strong or weak, should receive full consideration, provided that that country has a concrete interest in and actual influence over the formation of rules in a specific arena; as “specially affected States,” such countries can play a role in the formulation of rules of CIL.’ The Netherlands, the USA and Israel also wanted specific reference to the rule of “specially affected States.” Israel was most emphatic when it submitted that specially affected States ‘are crucial to the formation and, accordingly, the identification of CIL,’ and that their practice (and opinio juris) is not only ‘an indispensable element of identifying the existence of a customary international rule, but … must be given significantly greater weight than the practice of other States.’ It proposed that the text and commentary of conclusion 8 (as well as conclusion 9) should be amended to emphasize this. See, the Fifth Report, ibid. Iran was of similar view, see, Mohamad, supra note 15, 46.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, supra note 65, 41 [97].
Ibid, 33 [73]. See for analysis of the case, Georges Abi-Saab, The Court and the Bomb: A Case of Mutual Deterrence? 7 Transnational L & Contemporary Problems (1997) 430–457.
Murphy, supra note 17. See also Kevin Jon Heller, Specially-Affected States and the Formation of Custom, 112 American J Intl L (2018) 191 on the need for the “Global South” to work for developing the concept systematically to enable them to significantly impact the formation of CIL, which has so far been taken advantage of only by the “Global North”.
See, the Fifth Report, supra note 2 [69]. For the views of China, the Netherlands, the USA and Israel, see, ibid, 29 [64]
Special Rapporteur Wood noted: ‘The phrase “extensive and virtually uniform,” employed in the North Sea Continental Shelf judgment, is only one of the ways in which the Court has referred to the requirement of a general practice; in that same case it also used the term “a settled practice” as well as the words “very widespread and representative.”” In other cases it has applied the requirement of a general practice to mean practice that is “in general … consistent”; “established and substantial”; “uniform and widespread”; or “constant and uniform.”’ See, the Fifth Report, supra note 2, [67].
See the Commentary to conclusion 8 (1) adopted on the first reading: ‘At the same time, complete consistency in the practice of States is not required. The relevant practice needs to be virtually or substantially uniform; some inconsistencies and contradictions are thus not necessarily fatal to a finding of “a general practice.” In Military and Paramilitary Activities in and against Nicaragua, the ICJ held that: ‘It is not to be expected that in the practice of States the application of the rules in question should have been perfect …. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules.’ See, the Report of the ILC, supra note 1, 96 [7].
See, ibid, 117 [7].
See, the Fifth Report, supra note 2, 40 [119].
The USA and the Czech Republic took issue with the definition of particular CIL provided in conclusion 16 (1), suggesting that certain elements did not represent the current position. The Czech Republic questioned the existence of ‘particular rules of CIL that may operate among States linked by a common cause, interest or activity other than their geographical position’. See the Fifth Report, supra note 2, 38 [113]. Special Rapporteur Wood, however, did not consider it necessary to change the conclusion as in his view ‘there is no reason in principle why [such] a rule of particular CIL should not also develop’. Ibid, 39 [116]. At least one example to sustain this position is noted: Rights of Nationals of the United States of America case, ibid, 40 [117].
See, Chimni, supra note 6.
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Former President, Institut de droit International (2015–2017); Judge ad hoc, the International Court of Justice (2004–2008); former Chairperson, the United Nations International Law Commission (1995), and Member (1987–2006); special rapporteur on prevention of transboundary harm and allocation of loss (1997–2006); former Additional Secretary and the Legal Adviser, Ministry of External Affairs, Government of India (retired in 2002); Special adviser, Office of the Attorney General, State of Qatar, and consultant on international law. The author is deeply thankful to Gudmundur Eiriksson and Prabhakar Singh for their valuable comments on earlier drafts.
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Pemmaraju, S. The identification of Customary International Law: a process that defies prescription. Indian Journal of International Law 57, 221–258 (2017). https://doi.org/10.1007/s40901-018-0082-y
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DOI: https://doi.org/10.1007/s40901-018-0082-y