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Customary international law is ill-suited to the demands of today

Customary international law is ill-suited to the demands of today

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Published by Daniel Raca

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Published by: Daniel Raca on Sep 13, 2011
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04/14/2012

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Customary international law is ill-suited to the demands of acontemporary international legal system.
By Daniel Raca
 
Customary law is one of two primary sources of law which dominates the international legalsystem, the second being laws established by treaty. As per Article 38(1)(b) of the Statute of theInternational Court of Justice (ICJ)
the court shall apply “international custom, as evidence of ageneral practice accepted as law” (Brownlie, 2003: 319).
Essentially, customary internationallaw (CIL) is established by two elements, firstly by the general practice of a rule by members of the international community and the acceptance of such a rule as law known as
opinion juris
.CIL is an integral part of the international legal system and has been a cornerstone forinternational cooperation. But the nature and dynamic of the international community ischanging, and so also is its needs. CIL in many ways is becoming increasingly ill-suited to thedemands of the contemporary international legal system. CIL has difficulties in determining thegeneral practice and
opinion juris
elements of CIL. There are also issues of consent, and manyare calling into question whether CIL effects state action at all. However, despite difficulties itstill retains significant utility to the international community for at least the foreseeable future. Acloser examination of CIL reveals that it is indeed more enforceable and binding then somewould admit. CIL provides a bedrock for moral outcomes in international law and does indeedform the structural framework and backbone of the contemporary legal system.Determining General PracticeThe difficulty in determining the general practice element of CIL demonstrates how ill suited itis to the demands of a contemporary international system. The ICJ is not entirely settled on theimportance of general practice in the formation of CIL and is continuously frustrated by thedifficulties associated with establishing general practice. In the 1986 case of 
 Nicaragua v America
the ICJ emphasised the importance of the
opinion juris
element of CIL and neglectedthe importance of general practice, but in more recent cases like that of 
Congo v Belgium
thecourt began reemphasising the importance of the general practice element (Kini, 2008: 101).Much of this uncertainty about the importance of general practice stems from the endemicproblems that establishing general practice entails. Firstly the general practice element is
 
2 |Page problematic due to issues of timing. In the
 North Sea Cases
 
the ICJ stated “the passage of only ashort period of time is not a bar on the formation of (CIL)”
(ICJ Reports, 1969: 74). But as someacademics point out, the fluid nature of general practice makes ascertaining the
“birth date” of a
particular
CIL “futile”
as it is determined by context and circumstance (Villiger, 1997: 185). Thisis a problem as the resolution of disputes hinge upon when any given law is in force. In moderncases the date of inception of any given CIL does not need to be determined but rather whether itwas in force at the time of the dispute. But the difficulty in establishing when a given rule cameinto being makes any dispute much more prolonged and difficult to resolve.There are also substantive problems relating to evidence in establishing general practice. Thegovernments of today need to contend with populations that are increasingly complex. Withgrowing global interconnectivity through the expansion of trade and travel, greater scrutiny andregulation is necessary both domestically and internationally. To take one small example,according to a 2007 public sector census, the Australian Federal government has over 260,000employees and almost 1.7 million public sector employees across all State, Territory and Federal jurisdictions (ABS, 2007). In fact this figure is steadily rising, between 2002 and 2007 the publicsector admitted an extra 200,000 employees (ABS, 2007). This figure demonstrates how largeand complex modern governments have become: in a country of under 22 million people the size
of the government is immense, across over 200 nations plotting what is “general practice” isalmost an impossible task. As Kini points out “there are no countries that track their practices as
a matter of priority or allocate funds towards such a
demanding task” (Kini, 2008: 119). Many
academics also acknowledge that even international courts and tribunals, including the ICJ donot carry out careful analysis of state practice mostly because they cannot due to cost, time orboth (Kelly, 2000: 469). Due to the immense size of modern governments determining generalpractice is severely difficult to prove or disprove. State practices which may not be that commonmay be admitted as law and conversely practice which is common may not become law. Gone
are the days when “a scholar could”
 
disappear in the archives of a particular state” and emerge
with a comprehensive list detailing the international law practice of a state (Kini, 2008: 119).CIL is not a good source of law considering the difficulty of establishing general practice.Determining
Opinion juris
 
 
3 |Page Much like with general practice element, a compelling reason CIL is ill suited to the demands of the international legal system relates to evidentiary problems in establishing
opinion juris
. The
opinion juris
requirement was explicitly confirmed in the
 North Sea Continental Shelf 
case andin order to satisfy this requirement
“the states concerned must feel that they are confirming to
what
amounts to a legal obligation”
(ICJ Reports, 1969: 44). However ascertaining the intentionof a state is much more difficult then ascertaining the intention of an ordinary individual. Statesare increasingly complex institutions and there may be a multitude of reasons why a state chose aparticular course of action, belief it was required by law may have only formed a small part. Inthe
 North Sea Continental Shelf 
case example, which involved the delineation of maritimeboundary lines, the ICJ acknowledged in this case that the decision the states took in drawing theboundary lines was done for reasons other than respect of custom (ICJ Reports, 1969). Simplyput the
opinion juris
element could be described as too high a threshold. Many states may not actout of a belief that something is required by law but required out of significant prudence,practicality or in an increasingly democratised world: public pressure. Kini provides a goodexample of such a scenario in relation to the
precautionary principle
.
The “precautionary principle”
relates to the practice of states taking precautionary steps in relation to environmentalprotection in absence of scientific consensus, which is especially relevant in relation to climatechange concerns. Despite the possibility of satisfying the general practice element, on the
evidence it appears that such a practice is not occurring out of “a sense of legal obligation” but
rather other factors such as public pressure, prudence or otherwise (Kini, 2008: 87). Thedifficulty of ascertaining the intention of a state is another reason CIL is ill suited to theinternational legal system.ConsentAnother key reason CIL is ill suited to the contemporary legal system is because it lacks broadstate consent. The process of CIL creation is often so complex and difficult to determine it candiscourage participation. As previously stated the exact date of creation is almost impossible todetermine and as a result law is often made without the acceptance of states. In formulating CIL,the ICJ will take failure to object to a particular practice as acquiesce, but as some scholars pointout
acquiesce “may be the unknowing result of ignorance of the fact that the question has been posed” (
Charney, 1993: 538). In the
Gulf of Main Case
 
acquiesce was defined as “equivalent to

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