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Rethinking the Normative Force of Customary International Law
Emmanuel Voyiakis, Department of Law, LSE.
This is a paper about the normative force of customary international practices. Its guiding intuition is that customary international law may not be a normatively unitary phenomenon. That is, different customary practices may differ in their respective nature and their normative force may need to be explained on the basis of different normative principles. For example, while the force of some customary practices could be relatively straightforwardly justified by reference to basic principles about the protection of reasonable expectations and reliance, the force of practices that set up global schemes of co-operation which produce free-rideable benefits (e.g. schemes for the protection of the global commons) may more plausibly justified by reference to (suitably elaborated) principles of fair play and, perhaps, principles of global social-structural justice.
Were we to endorse it, this 'disaggregative' view of the normative force of customary practices would have two practical upshots. First, it would entail that the search for a threshold or sets of conditions that justify the force of everything that international lawyers refer to as customary international law may be misguided. Second, it would entail that we cannot determine the requirements for a given customary practice to become binding (or to cease to be binding) unless we attend to its specific normative characteristics. To put it differently, to tell what it takes for a practice to become binding -or to cease to bind- we would need to know what that practice is for , or what problem the practice is best understood as trying to resolve. In particular relation to opinio juris , the disaggregative view suggests that, until we get a grip on the problem that a practice tries to resolve, we cannot determine either whether we should pay any attention to the attitudes of international agents towards that practice, or –supposing that we should- which attitudes require our attention and how much significance we should accord to them.
Many theorists of international law ask: what makes customary international law (CIL) binding? This is a normative question. But it is not a very helpful one. The first part of the paper tries to reconstruct it. The second suggests that we have little warrant for thinking that this question has a single and comprehensive answer, applicable to everything that we refer to as CIL; in short, that CIL may not be a ‘normatively unitary’ entity. The last part tries to get a grip on whether and how the truth of this last claim may matter for the theory and practice of CIL.
I
Asking ‘why’ CIL binds implies that CIL does, in fact, bind and that what we need is a normative account of its binding character. But the implication might be false. Perhaps CIL does not bind, or binds only under certain conditions, or only some international agents.
Secondly, the idea that CIL ‘binds’ suggests that CIL gives rise to conclusive (or pre-emptive or exclusionary) reasons for action, i.e. that once it is determined that CIL requires φ, international agents ought to φ no matter what other reasons might apply to them. This claim is too strong for a starting point. We should replace it with the more modest claim that CIL creates reasons for international agents, or that it changes their ‘normative situation’, leaving aside for the moment how strong these reasons are and how they might relate to other applicable reasons.
Thirdly, saying that CIL ‘binds’ oversimplifies the ways in which CIL changes the normative situation of international agents. In particular, it does not draw enough attention to the fact that when CIL says that international agent A ought to φ, it thereby allows other (sometimes all) international agents to take certain practical measures to get A to φ. These two ways in which CIL may change the normative situation of international agents are related but distinct. They are related because for other agents to be entitled to hold A to account for failing to φ, it must be the case that A ought to φ. They are distinct because it is possible that A ought to φ and that (at least some) other agents are not entitled to hold A to account for failing to φ. Given that propositions of CIL always tell us two stories, a story about why international agent A ought to φ and a story about whether (and which) other agents are entitled to take practical measures to
it. It is better to ask about the effect of the past conduct of international agents, rather than the effect of their customary practice, on their normative profile.
So, rather than ask why CIL binds, I propose that we ask: under which conditions does the past conduct of international agents affect what they ought to do and when they are entitled to take practical measures to get each other to do so? A mouthful, but there you go.
To keep things simple, I will assume, first, that international agents can plausibly be viewed as unitary agents (to whom acts and attitudes may be attributed) and, second, that those agents meet whichever normative criteria (e.g. about democratic legitimacy, or about respect for certain fundamental rights) we take to determine whether an international agent’s may contribute to their own and others’ normative profile.^3
II
I have floated the normative question at the end of the previous section as a more accurate and less question-begging restatement of the “why does CIL bind?” idea, but there is one respect in which the question I am ending up with looks really odd. Asking how the past conduct of international agents may change their normative profile does not seem to be the kind of question that admits of a general and comprehensive answer. To take a simpler setting, if you ask me how my own past conduct may affect my normative profile and that of others, I am not sure I could do much better than to talk about examples of particular ways in which such changes may occur: instead of giving you a Grand Theory of Normative Profile Changes, I would talk about the effect of my normative profile of promises and other assurances I’ve given; of expectations and reliance that my conduct has given rise to; of my and/or others’ participation in co-operative schemes that produce shared benefits; of my and/or others’ participation in social structures that promote and sustain a certain distributive pattern etc.^4
(^3) The second assumption may be too generous. My point is that the normative question I have posed lies ‘downstream’ from the determination of eligible contributors to international agents’ CIL-related profile. 4 OK, if you press me, I might put on my contractualist cape and say two things. First, agents have reason to want changes to their normative profile to depend on their choices. Second, past choices of international agents change their normative profile when the sets of options from which those agents had to choose and the circumstances in which they chose were ones that those agents could not reasonably reject as a ground of such a change.
That, I want to suggest, is no coincidence. We can only hope to estimate how agents’ conduct changes their normative profile against the background of whatever antecedent reasons apply to those agents, i.e. against their profile as it stands before the conduct in question -more simply, against their antecedent normative profile. Inasmuch as we have no warrant for thinking that the antecedent profile can be captured in a single and comprehensive normative proposition, we also have no warrant for expecting a single and comprehensive answer as to how the antecedent profile may change. A lot of reasons apply to international agents and each of those may have a say on how their conduct can change their normative profile.
If that is correct, then we cannot tell whether a pattern of past practice changes the normative profile or some or all international agents until we have attended to the reasons that apply to the practical situation in which that pattern has developed. Consider three examples.
Example 1: we cannot tell whether the fact that the sixty greater polluter States have adopted a practice of reducing greenhouse-gas emissions effects any change in the normative profile of those States and other States that have refused to adopt a similar position, until we consult whichever normative principle determines what States are required to do to protect the global environment. Suppose we agree that the applicable principle should be formulated as follows: international agents are subject to a joint requirement^5 to refrain from polluting the global commons and therefore have a duty to contribute to any co-operative scheme that has a reasonable chance of securing that objective. It is that principle that will tell us what a co- operative scheme is; whether the conduct of the sixty great polluter States counts as setting up such a scheme; when the set-up is complete; what other conditions must be fulfilled for that scheme to acquire normative force for participating and non-participating agents (e.g. the scheme must actually start producing benefits); whether non-participating agents actually acquire a duty to do their bit in the scheme; and when any such duties cease to exist.
Example 2: we cannot tell whether and how the fact that State A has, over some time, led State B to believe that State B’s police forces can pass freely through State A’s territory affects the normative profile of those States until we have identified the normative principles that claim application in their situation. Again, it will be those principles (presumably about the protection
(^5) I take the idea of ‘joint requirements’ from the work of UCLA’s Stephen Smith and AJ Julius (unpublished manuscripts). The simple form of that idea is “we have reason to φ”, as in “we have reason to row to the safe side of the river” or “we have reason to effect and maintain a just social structure”. Incidentally, I think that the presence of a joint requirement explains how fair play arguments can get around Nozick’s familiar objections to the argument of fair play as a basis of political obligation.
they have customarily behaved’^7 , to ‘states ought to conform to the legitimate expectations of the international community’^8 and ‘it is good for states to resolve co-ordination problems through standards set by consistent patterns of practice’.^9 If the disaggregative view is right, that search is largely misguided. The reason is that not that the above normative propositions lack normative appeal, but that they cannot plausibly be regarded as comprehensive statements of the antecedent normative profile of international agents.
Second, CIL has been subject to trenchant criticism on the ground that it lacks appropriate credentials of legitimacy, or that it falls short of basic standards of procedural fairness and equality.^10 If the disaggregative view is right, these complaints are much too blunt and imprecise. Given that the past conduct of international agents may affect their normative profile in different ways and under different conditions in different contexts, any objection we have to statements of the sort “States are bound by customary practice P to do X” will need to be grounded on the particular normative principles that apply to the situation at hand. Sometimes our complaint may be that this statement is false because P has not given rise to the required pattern of expectations and reliance. At other times, our complaint may be that the statement is false because P does not satisfy the requirements of a duty-generating scheme of co-operation etc. In all, the disaggregative view suggests that the concern about the ‘legitimacy’ of CIL is no more than a placeholder for a variety of more precise normative concerns, each motivated by different normative principles.
At the same time, the disaggregative view seems to me to raise one theoretical and one practical problem. I am not sure how big these problems are, but they look troublesome to me.
The theoretical problem is this: I have not mentioned anything about the place of legality in CIL. If CIL is a type of law and if legality has distinctive and intrinsic value (two heavy conditionals), then we should expect a number of things to be true about CIL, including that the normative force of all propositions of CIL must be measured against the demands of legality. If that is true, though, then the disaggregative view seems to fail because there will be at least one sense in
(^7) Kelsen H., Principles of International Law (1962) 564. (^8) Mendelson M., ‘The Formation of Customary International Law’ 272 Recueil des Cours (1998) 184 (^9) Finnis J., Natural Law and Natural Rights (1980) 238-45. For a recent version of that view see, Lepard B., Customary International Law: A New Theory with Practical Applications 10 (2010) at 8. See e.g. Buchanan A., ‘The Legitimacy of International Law’ in Besson S. - Tasioulas J., The Philosophy of International Law (2010), Ch.3; Ratner S., ‘Is International Law Impartial?’ 11 Legal Theory (2005) 39; Kelly P., ‘The Twilight of Customary International Law’, 40 Virginia Journal of International Law (2000) 449 at 519-522; McGinnis J. – Somin I., ‘Should International Law be Part of Our Law?’, 59 Stanford Law Review (2007) 1175 at 1193 et seq.
which the force of everything that counts as CIL (as determined by the value of legality itself) will be subject to a single set of normative standards. My hunch is that the first of the conditionals on which the problem trades (i.e. that CIL is a type of law) is not satisfied, but to insist on this I probably need to rely on an account of legality that sees it as a virtue of centralized and institutional coercive action. Perhaps the second conditional is not satisfied either; perhaps (as positivists urge us) law does not solve any special normative problem.
Then there is a practical problem. Suppose that we did away with the idea of CIL as a normatively unitary idea, or that we gave up on trying to find a single explanation of when past international practice changes the normative profiles of international agents. Say that we replaced our concern with international custom with a range of more specific concerns, such as: ‘when does some form of conduct give rise to reasonable expectations and how should those expectations be protected?’; ‘under which conditions may a co-operative scheme generating free-rideable benefits generate duties for non-participating agents?’ etc. What would this entail for the first-order practice of claims about CIL?
It would certainly rob of normative foundation some rather central claims that international lawyers casually make about CIL. International lawyers typically say that once a state is bound by the customary practice of according immunities to foreign officials, then it cannot opt out of that practice unless other states agree to let it off. But it is hard to find a plausible normative principle that justifies states having such a power to hold each other to a practice. If the reason why the practice relating to immunities creates duties is that it has created certain expectations, then state should have a ‘right of exit’ from the practice on the condition that they give notice sufficiently early to shape other states’ expectations.^11 Similarly, if the reason is that the state receives some benefit from co-operation, foregoing those benefits –e.g. agreeing that its own officials will not enjoy immunities abroad- should let it off the relevant duty.
So much the worse for the first-order claims in questions, one might say, but that is a little too easy. The more an answer to the normative question shows international lawyers’ first-order intuitions about when CIL ‘binds’ to be false, the more it runs the risk of appearing irrelevant to their work, or of failing to convince them as a normative story. I wish I could devise a nice twist that would minimize this problem, but I have not been able to come up with one.
(^11) A point made forcefully in Bradley C – Gulati M., ‘Withdrawing from International Custom’ 120 Yale Law Journal (2010) 202.
