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«(3/20/15) Custom, jus cogens, and human rights JOHN TASIOULAS* [Book chapter for CUSTOM’S FUTURE: INTERNATIONAL LAW IN A CHANGING WORLD (Curtis A. ...»

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(3/20/15)

Custom, jus cogens, and human rights

JOHN TASIOULAS*

[Book chapter for CUSTOM’S FUTURE: INTERNATIONAL LAW IN A CHANGING

WORLD (Curtis A. Bradley ed., forthcoming Cambridge University Press)]

Immanuel Kant notoriously declared that it was a “scandal of philosophy” that

it had not yet furnished us with a convincing proof of the existence of an external

world. International lawyers have their equivalent occupational scandal: the failure to

achieve clarity or consensus on the nature of customary international law. Custom, after all, is arguably the most fundamental source of international law, at least insofar as treaty law is itself embedded within a customary framework. This framework includes various principles bearing on the interpretation of treaties and arguably also the grundnorm of treaty law, pacta sunt servanda. Indeed, the international lawyer’s scandal goes deeper. All of us, philosophers or not, standardly proceed on the basis that a world external to our senses exists. By contrast, assertions about customary international law are largely confined to international lawyers, although their being taken seriously occasionally has real practical consequences for others.

It is not enough to respond to this state of affairs with a knee-jerk pragmatism:

the shop-worn thesis that customary international law works well enough “in practice” and so requires no explication “in theory.” After all, this simply presupposes that we already know what customary international law is, and merely shifts attention to whether it “works.” In any case, it is doubtful that anything can satisfactorily “work” in a discursive and legitimacy-claiming practice if its very nature remains stubbornly opaque or conceptually problematic. Equally, we should not be put off by the skeptical dogma that all of our moral-political ideas are infected with contradictions at their very core, so that the search for an explanation that makes good sense of them is doomed from the outset. Even the alluring consolations of intellectual resignation need to be earned by argument rather than mere fiat.

In this chapter, by drawing on, clarifying, and extending previous work, I try to sketch the argument that the pragmatists and skeptics take to be either unnecessary or impossible. I offer a moral judgment-based account (MJA) of customary international law, one that challenges the orthodox idea that there is a deep connection between custom and consent, and I mobilize the ensuing account in relation to human rights norms in particular.

The necessity for moral judgment * Chair and Director, Yeoh Tiong Lay Centre for Politics, Philosophy, and Law, The Dickson Poon School of Law, King’s College London; Lisa Goldberg Fellow, Radcliffe Institute for Advanced Study, Harvard University. I am grateful to Curtis Bradley, Gerald Neuman, and Guglielmo Verdirame for helpful comments on an earlier draft of this paper.

There is a perfectly intelligible sense in which all law, including customary international law, derives from what might loosely be called “practice”. It is the product of what states and other agents actually do or refrain from doing, where this importantly includes the performance of speech-acts that give expression to their objectives and beliefs. To this extent, opinio juris, as a factor in the genesis of customary international law, should not be contrasted with “practice,” as if it denominated some occult phenomenon unfolding behind the scenes of ordinary human activity. This is not just for the quite general metaphysical reason that, as Wittgenstein put it, “an ‘inner process’ stands in need of outward criteria.” It follows more directly from the public and intentional— the positive or posited—character of legislative activity. Law is paradigmatically created through publicly accessible acts that are undertaken precisely as law-creating. Hence, all law is practice-based in this wide sense.

Nonetheless, in seeking to make good sense of the orthodox understanding of customary international law reflected in Article 38(1) of the Statute of the International Court of Justice—according to which two elements, general state practice and opinio juris, bear on its formation—we can regard both ingredients as forms of practice, or two aspects under which practice may be interpreted. In determining whether a norm exists as a matter of international custom, we begin by giving its putative content (for example, about the length of the territorial sea, the requirements of diplomatic protection, the immunity of sovereign states from certain forms of intervention, and so on). This content will specify some pattern of (state) conduct1 to which a normative modality (obligatory, impermissible, permissible, etc.) is assigned under certain conditions. In order to determine whether this so far merely notional legal norm, call it X, exists as a matter of customary international law, we

must address the following two questions:2

(1) State practice: Is there evidence that states generally conform their conduct to X, engaging in behavior consistent with the normative content of X? For example, if X is an obligation-imposing norm, is it the case that states generally do, or refrain from doing, what X enjoins them to do, or refrain from doing?





(2) Opinio juris: Is there evidence that states adopt one or other of the

following attitudes to X:

[OJ1] the creation of an international legal rule according to which the specified pattern of behavior has the normative significance attached to it by X is morally justified, and such a legal rule should be created by means of a process that involves general state practice consistent with X and a moral endorsement by states of X’s establishment as a legal rule, or [OJ2] X is already a norm of customary international law, i.e. it exists as a matter of general state practice and opinio juris (i.e. OJ1), I use “conduct” here in a broad sense to encompass both acts and omissions.

For the sake of convenience, I consider only the activities of states as bearing on the practice and opinio juris relevant to custom. I later revisit the issue as to opinio juris.

and the status of X as a legal norm (or compliance with it as such) is morally justified.

In short, opinio juris involves the judgment that a norm is already part of customary international law and that (compliance with) it is morally justified (OJ2); or that, as a moral matter, it should be established as law through the process of general state practice and opinio juris (OJ1); or else some mixture of these two attitudes.

Let me elaborate on the elements of this understanding of general state practice and opinio juris. The first thing to notice is that it involves a narrower interpretation of “state practice” than that which is sometimes deployed. On the view outlined above, state practice consists in the behavior of states insofar as it is in conformity with the putative norm. A positive showing of state practice depends on evidence of general state conformity with what the supposed norm stipulates as obligatory, impermissible, permissible, etc. Positive state practice, therefore, is redeemable in the hard currency of actual conformity to the norm. Forms of state behavior that evidence some kind of belief regarding the existence or otherwise of the norm, but which do not relate to conformity with it, do not fall within the category of state practice. Instead, they will bear on the separate matter of opinio juris.

One advantage of this way of distinguishing the two elements of custom is that it marks the distinctive significance of whether states actually generally conform to a supposed norm as opposed to other things they may do in relation to that norm, such as expressing their approval of it. This is broadly the significance of putting your money where your mouth is: of actually conforming (“state practice”) to the (putative) legal norm that you avow (“opinio juris”) to be morally justified. It therefore avoids the unorthodox claim that state practice can amount to nothing more than evidence of opinio juris.3 Another advantage is that it prevents undue “double counting,” whereby systematically one and the same course of conduct, for example, diplomatic correspondence, votes on resolutions by international organizations, etc. is treated as both state practice and opinio juris.4 Nonetheless, this framing of the distinction allows that state practice, interpreted against a suitable background, can be evidence of opinio juris.5 But it avoids the wholesale conflation of the two ingredients entailed by an expansive interpretation of state practice.

Turn now to the disjunctive interpretation of opinio juris. It is not fanciful to

say that this interpretation is already literally foreshadowed by its full Latin tag:

This is the view advanced in BRIAN D. LEPARD, CUSTOMARY INTERNATIONAL LAW: A NEW THEORY WITH PRACTICAL APPLICATIONS ch. 8 (2010).

The failure to avoid double-counting mars the analysis in Michael Wood, Special Rapporteur, International Law Commission, SECOND REPORT ON IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW 9-11 (May 2014), at http://legal.un.org/ilc/sessions/66/a_cn4_672(advance).pdf.

On the one hand, the report affirms the necessity for both elements, general practice and opinio juris (or, “acceptance as law”) in order for a customary international legal norm to emerge (Draft conclusion 3). On the other hand, it gives an account of general practice that seems to subsume, as a component part, opinio juris, at least insofar as the manifestations of the former seem to encompass most, if not all, of those of the latter (compare Draft conclusion 7(2) with Draft conclusion 11(2)). The double-counting entailed by the second aspect of the Report largely undercuts its insistence on the necessity for the presence of both state practice and opinio juris in the case of each norm of customary international law.

See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), I.C.J. Rep. 246, 299, para. 111 (ICJ Oct. 12, 1984) (Judgment).

opinio juris sive necessitatis (an opinion of law or necessity). Firstly, what is at issue is an opinion or judgment about what is or ought to be the case, rather than the mere expression of a desire or a preference. Second, the content of that judgment relates either to what the law is and whether, as a moral matter, it may be complied with or else what it ought to be (and, on either alternative, a moral “necessity”). Let me expand on both of these points.

What is central to both variants of opinio juris, OJ1 and OJ2, is an imputed attitude at the core of which is a judgment that a norm is, or would be if established, morally justified as a norm of customary international law. The judgment is one about moral justification because only this species of justification is adequate to the task of upholding the claim to legitimacy inherent in law, i.e., its claim to impose obligations of obedience on its purported subjects.6 Only a justification grounded in moral standards, as opposed to mere considerations of self-interest, for example, can vindicate the claim of the law to be morally binding on its subjects. This understanding of opinio juris, as reflecting a moral judgment, should be contrasted with two other understandings, the one unduly broad, the other unduly narrow.

The overly broad view characterizes opinio juris in terms of state preferences.7 Preferences are a subject’s positive attitudes towards some particular outcome, which typically reflect what the subject takes to be reasons. These reasons may differ greatly in kind, from reasons of pleasure or self-interest, at one extreme, to moral reasons at the other. But a preference, thus broadly understood, does not necessarily purport to identify a consideration that is even in principle capable of justifying the claim to legitimacy (moral bindingness) inherent in law. Notice, in addition, that we can often intelligibly speak of a discrepancy between what a state would prefer the law to be and what it judges that it should be as a moral matter. Its self-interested preference (e.g., as a powerful, or land-locked, or culturally homogeneous state) may point in one direction, but its assessment of the moral merits regarding the content of international law may point in the opposite direction. But it is only the latter that counts as opinio juris. All this is compatible with two observations. First, that the moral judgments made by states will often be skewed by considerations of self-interest or mere preference. This is simply a pitfall to which all moral judgment is prey. Second, that even when not so skewed, the relevant moral judgment may be one to the effect that permitting states to pursue their preferences or self-interest in various ways is justifiable. In other words, state preferences do have a potentially substantial role to play in the formation of customary international law, but only as regulated by background moral judgments regarding their suitability to do so. It is these background judgments, not the preferences, that are the core of opinio juris.

If the preference-based interpretation of opinio juris fails in virtue of being overly broad, another much more familiar interpretation is unduly narrow. The latter usually takes opinio juris to be an attitude accompanying state practice, one according to which the state acts out of a “sense of obligation” when engaging in the relevant pattern of conduct. So, for example, in the first ICJ case to invoke the notion of opinio juris, it is incorrectly described as a matter of states feeling “legally compelled to … [perform the relevant act] by reason of a rule of customary international law obliging Joseph Raz, Hart on Moral Rights and Legal Duties, 4 OXFORD J. LEG. STUD. 123 (1984).

There are intimations of this view in Curtis A. Bradley, Customary International Law Adjudication as Common Law Adjudication (in this volume).



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