Let's Start with the Basics: Elements of Customary International Law According to ILA and ILC

Introduction

Although different, main goal of both ILC and ILA is to study the development of international law aimed to give further understanding of international law. ILC is even tasked to make recommendations as mandated by General Assembly.

The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under article 13 (1) (a) of the Charter of the United Nations to "initiate studies and make recommendations for the purpose of ... encouraging the progressive development of international law and its codification".

One of the topics that both have currently study is the formation of customary international law.

The topic of customary international law was first considered by the ILC in 1940s until 1950. The final outcome of Ways and means for making the evidence of Customary International Law more readily available was published in 1950 in ILC Report, A/1316 (A/5/12). In 2012, ILC decided to include the topic Formation and evidence of customary international law in its programme of work which will later be renamed as Identification of Customary International Law. The final outcome of this work is the Draft Conclusions on Identification of Customary International Law published by ILC in 2016. There are seven parts with 16 Conclusions within the Draft Conclusion.

1. Part One – Introduction (Conclusion 1)

2. Part Two – Basic Approach (Conclusions 2 and 3)

3. Part Three – A General Practice (Conclusions 4-8)

4. Part Four – Accepted as law (opinio juris) (Conclusions 9 and 10)

5. Part Five – Significance of certain materials for the identification of customary international law (Conclusions 11-14)

6. Part Six – Persistent objector (Conclusion 15)

7. Part Seven – Particular customary international law (Conclusion 16)

Similarly, ILA have also concluded its work on Customary International Law in 2002. ILA separated its final work into several Parts with 33 Sections.

As previously mentioned, this post would serve as a continuation of the first post regarding customary international law. Since main problem in the first post was the evidence of customary international law and persistent objector rule, I would like to try to summarize these matters in the works of ILC and ILA.

Constituent Elements of Customary International Law

State Practice or General Practice

Conclusions 2 stipulated that there are two elements for international law: state practice and opinio juris sive necessitatis. The element of state practice is the material element, while opinio juris sive necessitatis serves as subjective element that indicates States’ acknowledgement of such rule as a legal obligation. Conclusion 3 then elaborates that regard must be had to the overall context, the nature of the rule, and the particular circumstances in question is to be found.

Conclusion 3 stated that each of the two constituent elements is to be separately ascertained and assessed. Similarly, Section 3 of ILA Report stipulated that:

“When defining State practice - the objective element in customary law - it is necessary to take account of the distinction between what conduct counts as State practice, and the weight to be given to it.”

Although both passages are similar, it has its differences. Section 3 focuses only on the weight of practice, while Conclusion 3 focuses on both the weight of practice and opinio juris sive necessitatis. Conclusion 3 serves as a basis of finding which action serves as state practice and opinio juris sive necessitatis due to the fact that there was a vague distinction between the two as I have stated in previous post. In my personal opinion, this also means that claiming customary international law is not as easy as ABC. Careful distinction must first be conducted on which action is state practice or general practice and afterwards careful distinction must be given–again–to find out which action amounts to state practice.

Further elaboration on what constitutes as state practice is given by ILC in Part Three. In this Part, ILC gave thorough explanation on which action is a state practice and who can conduct state practice.

Conclusion 5 of ILC Report and Part B (Section 7-Section 11) of ILA Report basically contain the same proposition with ILC Articles on Responsibility of States for Internationally Wrongful Acts in regards to what is considered as a ‘state conduct’. The similarities are as follows.

1. Conclusion 5 and Section 9 are basically the same as Article 4 of ARSIWA. Both Report basically stated that State practice consists of conduct of the State, whether in the exercise of its executive, legislative, judicial or other functions. Section 8 expands this by including other governmental entities such as local governments only if it is empowered by the State’s constitution to conduct their own legal relation and this capacity is recognized by other States, such as the Byelorussian and Ukrainian Soviet Socialist Republics before the breakup of USSR.

2. Section 7 and Article 5 of ARSIWA are similar. Both stated that an action of a person or an entity outside of organ of states will be considered as state practice, if their actions are empowered by law. However, Article 5 of ARSIWA is intended to take account of the increasingly common phenomenon of parastatal entities and situations where former State corporations have been privatized but retain certain public or regulatory functions. Meaning that entities such as private companies may exercise functions of a public character normally exercised by State organs – in other words, governmental authority – given the empowerment from State. On the other hand, what is meant by Section 7 is that these entities are the reason or occasion for the actions of States and other governmental bodies. These actions include encouragement to the State by these entities, being the object of regulations, and invoking rules of law before national courts or international tribunals to which they have access.

Interesting point about international organization is explained within Conclusion 4. Paragraph 2 of Conclusion 4 explains to what extent an action of international organization can be considered as state practice. According to ILC, actions that may amount to formation or expression of customary international law are as follows.

“The practice of secretariats of international organizations when serving as treaty depositaries, in deploying military forces (for example, for peacekeeping), or in taking positions on the scope of privileges and immunities for the organization and its officials, might contribute to the formation, or expression, of rules of customary international law in those areas. The acts of international organizations that are not functionally equivalent to the acts of States are unlikely to be relevant practice.”

In its commentary, ILC again stresses the importance of being careful in assessing state practice. According to ILC: “As a general rule, the more directly a practice of an international organization is carried out on behalf of its member States or endorsed by them, and the larger the number of such member States, the greater weight it may have in relation to the formation, or expression, of rules of customary international law. The reaction of member States to such practice is of importance.” ILC also gave factors to be considered in determining whether an action of international organization can be considered as a ‘general practice’.

“Among other factors to be considered in weighing the practice are: the nature of the organization; the nature of the organ whose conduct is under consideration; the subject matter of the rule in question and whether the organization itself would be bound by the rule; whether the conduct is ultra vires the organization or the organ; and whether the conduct is consonant with that of the member States of the organization.”

State practice gets even more complicated to determine in Conclusion 6 of ILC Report and Sections 4 and 6 of ILA Report. These provisions include “inaction” as a form of state practice. Conclusion 6 (1) stated that verbal acts and physical acts may be concluded as a state practice. Inaction, on the other hand, is only considered as state practice only in certain circumstances. Certain circumstances meant by ILC are situations where there is a situation calls for acknowledgement or reaction, but State shows deliberate abstention. Examples of this situation are abstaining from instituting criminal proceedings, refraining from exercising protection in favour of certain naturalized persons, and abstaining from the threat or use of force. In regards to abstention, Commentary of Section 6, ILA refers to S.S. Lotus where PCIJ refused to acknowledge such abstention from prosecuting for collisions on the high seas as an evidence of customary international law due to ambiguity of the action. According to PCIJ, there could have been other reasons to such abstention which are unconnected with international law.

Paragraph 2 of Conclusion 6 gave a non-exhaustive list of state practice. Similarly, Section 4 also lists forms of state practice in its commentary.

In my personal opinion, Conclusion 7(1) is pretty much similar to conclusion 3 but in a smaller scope. While generally Conclusion 3 requires assessment of evidences of customary international law to be contextual, Conclusion 7(2) requires such assessment within the State.

“Account is to be taken of all available practice of a particular State, which is to be assessed as a whole.”

Conclusion 7 is basically the same as Section 13 of ILA Report. Both stated that internal uniformity means internal consistency.

“For State practice to create a rule of customary law, it must be virtually uniform, both internally and collectively. “Internal” uniformity means that each State whose behaviour is being considered should have acted in the same way on virtually all of the occasions on which it engaged in the practice in question. “Collective” uniformity means that different States must not have engaged in substantially different conduct, some doing one thing and some another.”

ILC referred to Jurisdictional Immunities in defining what an internal uniformity is. ICJ in Jurisdictional Immunities was trying to find consistency of practice of “territorial tort principle” – which stated that State immunity under customary international law did not extend to the acts of armed forces during an armed conflict – within internal law of Greece. ICJ found that different positions in implementing that principle. Hence, ICJ concluded “that Greek State practice taken as a whole actually contradicts, rather than supports, Italy’s argument”.

Opinio Juris Sive Necessitatis

According to ILA Report, “customary law in particular, was an emanation of the Volksgeist (national spirit) and the embodiment of the nation’s “juridical consciousness” – one possible interpretation of the phrase opinio juris (sive necessitatis)”. Explanation regarding what is considered as an opinio juris sive necessitatis, is elaborated in Conclusions 9 and 10 of ILC Report and Sections 16 and 17 of ILA Report.

According to ILC Report, compliance with treaty obligation is cannot always be regarded as an opinio juris (acceptance of law) or state practice.

“Seeking to comply with a treaty obligation as a treaty obligation, much like seeking to comply with domestic law, is not acceptance as law for the purpose of identifying customary international law, and practice undertaken with such intention does not, by itself, lead to an inference as to the existence of a rule of customary international law.”

ILC further elaborates that multilateral drafting and diplomatic processes may afford valuable and accessible evidence of opinio juris sive necessitatis.

“Multilateral drafting and diplomatic processes may afford valuable and accessible evidence as to the legal convictions of States with respect to the content of customary international law, when such matters are taken up and debated by States.”

Failure to react as a form of opinio juris sive necessitatis

As can be seen in Section 7(iv) and Conclusion 10(3), there are conducts considered ambigous. In line with this, according to ICJ in Fisheries Jurisdiction, failure of States to react “[bear] witness to the fact that they did not consider … [a certain practice undertaken by others] to be contrary to international law”. However, there are two requirements that must be met to ascertain whether or not such failure amounts to opinio juris sive necessitatis.

"First, it is essential that a reaction to the practice in question would have been called for, and second, the reference to a State being “in a position to react” means that the State concerned must have had knowledge of the practice (which includes circumstances where, because of the publicity given to the practice, it must be assumed that the State had such knowledge), and that it must have had sufficient time and ability to act."

UN and IO Resolutions: Opinio Juris sive Necessitatis as evidence of Customary International Law

"Resolutions accepted unanimously or almost unanimously, and which evince a clear intention on the part of their supporters to lay down a rule of international law, are capable, very exceptionally, of creating general customary law by the mere fact of their adoption. In the event of a lack of unanimity, (i) a failure to include all representative groups of States will prevent the creation of a general rule of customary international law (see Section 14); and (ii) even if all representative groups are included, individual dissenting States enjoy the benefit of the persistent objector rule"

- Section 32, ILA Report -

In my previous post, I have stated that sometimes there is not a clear distinction between two constituent elements. In commentary of Conclusion 10, ILC also stated that:

In part, this reflects the fact that the two elements may at times be found in the same material (but, even then, their identification requires a separate exercise in each case). In any event, statements are more likely to embody the legal conviction of the State, and may often be more usefully regarded as expressions of acceptance as law (or otherwise) rather than instances of practice.

Despite the first quote on this section, both ILA and ILC agree that resolutions cannot be the only evidence of customary international law. According to the commentary of Conclusion 12(1) of ILC Report: “mere adoption of a resolution (or a series of resolutions) purporting to lay down a rule of customary international law does not create such law: it has to be established that the rule set forth in the resolution does in fact correspond to a general practice that is accepted as law (accompanied by opinio juris).”

To see whether or not a resolution can be accepted as an opinio juris sive necessitatis, the quoted Section above is pretty clear. The reason for that, according to ILA, is due to the normal rules for the formation of general customary law – widespread and representative acceptance of the rule. ILA furthermore noted that since GA resolutions are not binding, practice is needed to in order to establish State’s will to be bound.

"Given that General Assembly resolutions are not, in principle, binding, something more is needed to establish this consent than a mere affirmative vote (or failure to oppose a resolution adopted by consensus). It must also be recognized that not all authorities would accept that it is possible - even in exceptional cases - to dispense entirely with the need for at least some “real” practice."

The ILC quoted a passage from Legality fo Threat or Use of Nuclear Weapons in determining what should be taken into account when trying to ascertain whether a resolution is considered as an opinio juris siver necessitatis.

“it is necessary to look at [the resolution’s] content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.”

ILC then adds several instances that shall also be taken into account.

"Also relevant are the debates and negotiations leading up to the adoption of the resolution and especially explanations of vote, explanations of position and similar statements given immediately before or after adoption.The degree of support for the resolution (as may be observed in the size of the majority and number of the negative votes or abstentions) is critical."

Persistent Objector

In my previous post, I have stated that there is a hint of consent found within this rule. As a matter of theory, there are two differing schools regarding customary international law: the voluntarist and the world communitarian. The former views that consent is the key in customary international law while the latter views that consent is not a necessary requisite for a rule of customary international law to be created. ILA acknowleged this in its report and decided to conclude that the existence of persistent objector rule is a compromise.

“As a matter of policy, the persistent objector rule could be regarded as a useful compromise. It respects States’ sovereignty and protects them from having new law imposed on them against their will by a majority; but at the same time, if the support for the new rule is sufficiently widespread, the convoy of the law’s progressive development can move forward without having to wait for the slowest vessel.”

Conclusion

An evidence can be both state practice and opinio juris sive necessitatis. However, it isn’t always the case. As stipulated by ILC in Conclusion 3, it shall be separately assessed. A resolution of UN GA and other international organizations can be an opinio juris sive necessitatis, given the sufficient support. Besides sufficient support, relevant debates, negotiations, explanation of vote, explanation of positions, and similar statements shall also be taken into account. In correlation to this, Section 32 of ILA Report stated that a uninamously accepted ones can create a rule of customary international law in and by itself.

The main reason for the prerequisite of ‘uninamous acceptance’ is to represent the widespread and representative consent of the States.

Another important thing to be duly noted is of persistent objector. As previously concluded in the first post, there is a hint of consent in this rule. This is true, given the fact that ILA stated that this rule is a form of compromise between two schools: the voluntarist and the world communitarian.