Revival: Legitimacy Deficit in Custom: Towards a Deconstructionist Theory (2001)

Towards a Deconstructionist Theory

Ben Chiagra

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138717459
• eBook ISBN: 9781351766760
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This title was first published in 2001. A discussion of customary international law (CIL). Throughout the study particular values are examined for their potential effect on the legitimacy of the process of custom. The writer argues that, in order to achieve legitimacy enhancing transparency in the process of custom, it must be acknowledged first that the power applied by international tribunals when they inaugurate new norms of customary international law always creates categories of "dominance" and "subservience", "inclusion" and "exclusion". Such an acknowledgement would foster a situation where both the power applied by tribunals and the manner in which it is applied, can legally be scrutinized for excesses that limit first the transparency of the process of custom, and second the legitimacy of norms of customary international law.

1 Juridification of Custom

Introduction

This chapter examines the theoretical construct of the idea of custom and its application in the formation of rules of customary law in the international legal system. This enterprise has a dual purpose. The first is to confirm the legitimacy deficit in customary international law. The second is to inform attempts to reformulate custom of the issues. This chapter will show first, that both treaty and usage origins of custom premise the emergence of a norm of customary international law on the consummation of State practice (SP) and a belief that that particular practice was obligatory – also known as opinio juris sive necissitatis (OJ). More importantly, it will show that far from making certain the distinction between legal customs and mere usage this definition of custom does not fully account for the process by which norms of customary international law are created. This situation is unacceptable for a process credited with creating the majority of rules that regulate the behaviour of nearly two hundred States one with another.

Etymology of Custom

The word custom is part of everyday vocabulary in all languages, meaning the habitual behaviour of people in a particular community.¹ Once adopted by lawyers this word, like many others assumes ambiguities that must be attended.² Because customs exist everywhere,³ it is necessary to distinguish between legal customs and non-legal customs. This distinction is useful not least because it fastens onto legitimacy endearing tenets of transparency, coherency, consistency, determinacy and predictability.

Therefore, it is proposed first, to establish the etymological and perceptual origins of the idea of customary international law, and second, to examine international jurisprudence and discourse on the idea. Of particular interest to this study in the archive of discourse on this matter is the current work of the International Law Association Committee on the Formation of Customary International Law whose mandate is to try and explain away custom’s paradox.⁴ The impact on custom of developments in specific areas of international law such as human rights, law of the sea and environmental law will also be analysed. Finally, the source of obligation of rules of customary international law will be considered in order to inform any effort to address the legitimacy deficit in custom. The hypothesis is that a high correlation between the International Court of Justice’s (ICJ) jurisprudence on custom, the writings of publicists and other international institutions points to a high degree of custom’s transparency, consistency, coherency, determinacy and predictability while a low correlation points to a legitimacy deficit in the doctrine. The null-hypothesis is that any correlation of views on custom is due to chance alone.

Custom as a Law-creating Mechanism

Earliest evidence of recognition of custom as a tool for the creation of law in the international legal system appears in the works of Suarez,⁵ though it is probably of greater antiquity. In his De legibus ac cleo legislatore, which first appeared in 1612, Suarez proposed two requirements for ascertaining the existence of a rule of customary international law, namely, consensus and compliance with reason.⁶ The first requirement referred only to the sovereign’s and not the nation’s consent to particular practice. The second requirement referred to God’s will as revealed to man – the ratio.⁷ Suarez premised custom on both positivist and naturalist philosophy.⁸ This view of custom is shared by Grotius who described custom as an embodiment of a practice that a community tacitly accepted as binding upon it.⁹ The distinguished German legal scholars Von Savigny and Puchta,¹⁰ who are widely regarded as the major protagonists of Grotius’ ideas, anchored the doctrine of custom on what modern writers now routinely call the two limbs of custom, namely, State practice (SP) and opiniojuris sive necessitatis (OJ).

In his treatise on the contribution to development of international law of the Hague Conferences, Hull¹¹ identifies what appears to be the first formal treaty recognition of custom as a source of international law. The Conference of Brussels on the Laws and Customs of War (1874) provides in article 9 that the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1) That they be commanded by a person responsible for his subordinates;

2) That they have a fixed distinctive emblem recognisable at a distance;

3) That they carry arms openly; and

4) That they conduct their operations in accordance with the laws and customs of war.

In countries where militia constitute the army, or form part of it, they are included under the denomination “army”. It adds in article 10 that:

The population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organise themselves in accordance with article 9, shall be regarded as belligerents if they respect the laws and customs of war.

It is curious that this treaty, which was never ratified, appeared to distinguish between laws of war and customs of war, and appeared to privilege adherence first to laws, and second to customs if no laws existed. Such a distinction compels discovery of the reason why States would willingly submit their conduct to regulation of customs that are themselves not law. Did “laws of war” refer to treaty-based rules of international law only, and customs to uncodified rules of international law? This distinctive reference to laws of war and customs of war is common in humanitarian law treaties concluded at this time. As an example, the preamble to Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land (1889) reads:

… Thinking it important, with this object, to revise the laws and general customs of war, either with the view of defining them more precisely or of laying down certain limits for the purpose of modifying their severity as far as possible.¹²

Nonetheless, differentiating between treaty and custom as sources of international law in this manner has fanned the general debate on whether or not article 38(1) of the Statute of the International Court of Justice classified the sources of international law in successive order. The Committee of Jurists that drafted this Statute for the League of Nations regarded article 38(1)(a) – (d) as constituting a hierarchical ordering of sources and that they were to be applied successively.¹³ Hudson¹⁴ writes that the deletion from this article of the Committee’s recommendation that these sources should be applied successively does not appear to have had any effect on the meaning of the direction. If the parties to a convention have laid down an applicable rule, it will be controlling and tribunals may not need to look further. If that is not the case, a sufficient guide may be found in the customary law. If resort to general principles of law is necessary, however, the court will naturally want to know at the same time how courts have applied these principles, and how they have been evaluated in juristic writings. But article 38(1) does not establish such a rigid hierarchy. In applying a provision in a convention, a court may have to take into account the customary law prevalent when the convention was entered into, or general principles of law, as well as judicial precedents.

To come back to the etymology of legal custom, twenty-five years after it had first been mentioned as a source of binding obligations between States an international convention ruled that situations not regulated by the treaty itself would fall under the jurisdiction of principles of the law of nations resulting from: “ … usage existing among civilised nations, from the laws of humanity and the postulates of public conscience”.¹⁵ This seems to have followed directly from de Marten’s appeal for the adoption of rules defining belligerents, made in response to Beernaert of Belgium who advocated for non-recognition of belligerents. Beernaert argued that while the humane function of such rules was quite obvious, such rules would target matters that should not be made the subject of international agreement. These matters, he suggested, should be left: … “under the dominion of that tacit and common law which arises from the principles of the law of nations”.¹⁶ de Marten’ argued, and it was accepted, that nations and belligerents should remain under the protection and sovereignty of the principles of law which flowed from established custom between civilised nations, the laws of humanity, and from the demands of the public conscience.¹⁷ Article 1 of the Convention includes in its criteria of determining circumstances that international law recognises as giving rise to the status of belligerents: … “the conduct of warfare in acc...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Treaties and Declarations
• List of Cases and Incidents
• List of Abbreviations
• Introduction
• 1 uridification of Custom
• 2 International Organisation and Custom: From 1920 to Contemporary Perspectives
• 3 Legitimacy Deficit in Article 38(1)(b)’s Jurisprudence
• 4 Deconstructionism, Normative Theory and Custom
• 5 Inauguration of New Norms of Customary Law in the Corfu Channel Case
• 6 Custom and State Objection to Nascent Norms of Customary Law
• 7 Twining Custom with Treaty – North Sea Continental Shelf Cases
• 8 Conclusions
• Bibliography
• Index