Customary International Law as a Dance Floor: Part II

The first part of this blog post commended the self-restraint of the ILC Special Rapporteur on the identification of customary international law. It simultaneously argued that the work of the ILC, somewhat paradoxically, laid bare a formidable emancipatory fervour at play outside the Palais des Nations. It is as if the intellectual prison of custom was gradually being turned into a large dance floor where (almost) everything goes. The following observations substantiate that claim and shed light on some of the consequences of this ongoing revelling.

Hunting (and finding) practice everywhere

It has long been accepted that the myth of induction in the theory of customary international law was more difficult to uphold in relation to opinio juris. This is why the subjective element has always been the object of the most severe criticisms or reservations. Yet, international legal scholars have started to realise that the myth of induction is not less difficult to vindicate in connection to the objective element, i.e. practice. As the Nicaragua decision famously taught us, how can one possibly ascertain the unascertainable, that is an intangible practice of abstention? Since the great majority of rules of international law are of a prohibitive character, the establishment of customary international law very often requires a speculative venture into nothingness. Confronted with this overdue realisation that practice – especially with respect to prohibitive rules – was not more easily captured inductively than opinio juris, international lawyers have been forced to resort to all new sorts of nets and traps to hunt and capture practice where there was none.

The stratagems and ploys which are being used to “discover” practice are numerous and well-known. It suffices to mention a few of them. The most common of which is to turn a declarative process into a constitutive one. This is the idea that what is said about a given behaviour is constitutive of that behaviour. A clear example of this is the argument that declarations by states about what they do or do not do are themselves constitutive of practice. The possible evidence of a behaviour thus becomes the behaviour itself. Another trick is to discover behavioural practice in interpretive practice. According to this approach, what is said about an existing rule feeds into the behavioural practice supporting the customary rule. This means, for instance, that qualifications made by certain international actors of a given situations (e.g. the Security Council acting in the framework of Chapter VII) generate behavioural practice for the sake of the customary law applicable to that situation.

Another ruse to discover practice involves a move away from the self-generating character of customary international law. According to that stratagem, customary rules are no longer emerging by virtue of the behaviour and beliefs of those actors whom those rules are meant to apply to. This means, for instance, that the practice of international organisations or that of non-state actors is said to be instrumental in the crystallisation of purely inter-state rules. In that sense, third-party practice becomes a source of practice for the sake of customary international law. This is so even if the practice of that third party is purely virtual. Indeed, it is sometimes argued that, even if international organisations have no territory, they generate practice relevant for the establishment of inter-state obligations pertaining to how a territory is used. In the same vein, non-state actors who are not engaged as belligerent in armed conflicts are sometimes said to generate practice for customary rules prescribing how States should behave as belligerent on the battle field. It is probably here that the newly experienced emancipation from the constraints of customary international law reaches its apex. This is also where the creativity witnessed in the hunt for practice illustrates the best how wild the revelling can go on the dance floor of customary law when it is late night.

It is noteworthy that, in their fanatic hunt for practice, international lawyers often lose sight of the emergence of diverging – if not rebellious – uses of the theory of customary international law. Indeed, because of an all-embracing concept of practice, they are not in a position to distinguish between the social practice that generates the theory of custom itself and the practice that is required to give rise to a primary rule according to that very theory. Said differently, international lawyers approach the interpretive practice about the use of the two law-ascertainment element of customary law under the umbrella of the notion of practice necessary for the establishment of a customary rule of international law. This is the reason why international lawyers have not been cognizant of the rise of diverging uses of the two-criteria theory of customary international law. One example suffices here. As has been argued elsewhere, it seems that the practice of establishment of customary humanitarian law in the practice of the International Criminal Tribunal for the Former Yugoslavia and the International Committee of the Red Cross had already manifested a move away from the general rule of recognition pertaining to the establishment of customary law. Even though such departures from the general theory of customary international law are usually obfuscated by continued references to the latter, there are growing signs of an autonomization of the rule of recognition regarding the establishment of customary humanitarian law, and hence signs of a fragmentation of the theory of customary international law. It would not be surprising that similar subversive moves are at work in environmental law.

It would be exaggerated to claim that, because of the above-mentioned all-encapsulating notion of practice, everyone has ignored the fragmentation of the general theory of customary international law. Interestingly, however, those who came to realise the rise of dissident uses of the general theory of customary international law have called on the ILC to stifle such insurgency, and enforce the unity theory of customary international law. Such demands raise difficult epistemological questions, for it is not at all certain that, like the ICJ sometimes does with its dissident sister UN tribunals, it behoves the ILC to go after the autonomous and diverging uses of the theory of customary international law.

Calls for the enforcement of the unity of sources have sometimes turned into a repression of dissent. The tone on the dance floor is not necessarily that of flower people or that of tolerance. Rather, the tone of the revellers is dogmatic, assertive, peremptory and pontifical. On the one hand, everything can be said about customary international law: the declarative is constitutive, evidence of practice equates practice, custom can be generated by third parties, interpretation of an existing rule amounts to behavioural practice feeding into the emergence of a corresponding customary rule, practice over the use of the theory of custom is the same as practice establishing a given custom, etc. On the other hand, anything hostile to this newly acquired argumentative freedom is not tolerated.

A new type of argumentative sophistication

The irony of the above story is maybe that simplifications are nowadays presented as argumentative refinement. A new sort of sophistication is now found in holding that opinio juris and practice often boil down to the same or at least operate along dialectical lines, in contending that declarations about practice are constitutive of practice, in considering that third parties can generate custom, in equating interpretative practice with behavioural practice, etc…

Sophistication is of course a relative phenomenon subject to the epochal fluctuations of subjective and collective perceptions. For instance, the sophistication associated with plain modern scholarship of the 1^st half of the 20^th century is now perceived as a vulgar relic whilst linguistic esotericism is now considered the new standard in terms of scholarly sophistication. Yet, however relative and epoch-dependent perceptions of sophistication and refinement may be, the elegance associated with the above mentioned emancipatory moves witnessed in contemporary uses of the theory of customary international law are the manifestations of a new era of international legal scholarship. After a century of scholarly craftsmanship to refine the theory of customary international law and distinguish the two elements, sophistication is no longer sought and achieved through intricate differentiations but rather through all-embracing moves that construe practice and opinio juris, behavioural practice and interpretative practice, and declarative and constitutive processes as two elements of the same dialectical process, if not two faces of the same coin.

As was alluded to above, the move away from the 20^th century sophistication in the theory of customary international law is not completely idiosyncratic. The inconclusiveness of the 20^th century craftsmanship deployed to distinguish between practice and opinio juris in the traditional theory of customary international law cannot be denied. It now seems widely accepted that modern sophistications have failed to alleviate the contradictions in the theory of customary international law. What is more a matter of concern, however, is that the new sophistications witnessed today have not really helped mend the contradictions in the theory of customary international law. On the contrary, it could be said that the simplifying moves observed in the current international legal scholarship lend even more support to the compelling criticisms levelled against the theory of customary law. It seems today that, under the guise of a greater argumentative freedom, there is an even stronger denial of the deductive process at stake in customary international law. The above mentioned emancipatory moves further obfuscate the deductive process of custom-based argumentation, thereby exacerbating the false inductive objectivity on the basis of which customary international law is meant to produce authority.

The end of a modern(ist) argumentative technique to produce authority?

Concealing a deductive process behind an inductive smokescreen is probably the raison d’être of the theory of customary international law. The fact that the argumentative freedom currently experienced by international lawyers in relation to customary international law perpetuates that illusion is thus not a big deal. Likewise, one should not muse the fact that this new argumentative freedom has not been very tolerant of dissent. In the confrontational argumentative scene of international law where everyone is pursuing argumentative authority, these repressive behaviours are not unknown (see here).

What is more unsettling is that the revelling around the emancipation from the constraints of customary international law has come with no gain in terms of authority which that theory is supposed to produce. Indeed, if customary international law is construed as a set of discursive constraints geared towards the production of authoritative statements at the service of the agenda of its user, it could be said that the above-mentioned moves away from the constraints of customary international law are detrimental to the authority which such a argumentative technique is able to produce. For the ambitious 21^st century international lawyers who have pinned much of their agenda on customary international law, this should be seen as the most serious of all predicaments inherent in the emancipatory frenzy currently witnessed in international legal scholarship.

A return to a modern 20^th century sophistication of the theory of customary international law is neither possible nor desirable. But the current revelling around a customary international law will only provide a short-lived relief. More radical measures should be contemplated to address the contradictions of customary law. It may be that time has come to tear down the prison in its entirety rather than seeking to convert it into a dance floor. In the meantime, it is hoped that the ILC will not only turn a blind eye to those suggestions to that it ought to act as the guardian of the unity of sources of international law but will also remain insensitive to those calls to construe practice and opinio juris, behavioural practice and interpretative practice, as well as declarative and constitutive processes as two elements of the same dialectical construction.