Article 38(1) of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law,” or in short customary international law (CIL), as one of the three principal sources of international law.Footnote 1 In recent years the International Law Association (ILA) and International Law Commission (ILC) have undertaken the task of clarifying rules concerning the formation and identification of CIL. In 2000, the ILA adopted the London Statement of Principles Applicable to the Formation of (General) Customary International Law (with commentary) consisting of thirty-three principles.Footnote 2 In 2012 the topic “Formation and evidence of customary international law” was included in the work programme of the ILC. It was later replaced by the topic “Identification of Customary International Law” and Sir Michael Wood appointed the Special Rapporteur (SR). In 2016, the ILC adopted on first reading a set of sixteen draft conclusions on identification of customary international law.Footnote 3 These are “a set of practical and simple conclusions … aiming at assisting practitioners in the identification of rules of customary international law.”Footnote 4 The ILC has transmitted the draft conclusions to governments for comments and observations, with the request to receive them before beginning of 2018.
There is a degree of consensus among international law scholars that the two elements that must come together for a rule of CIL to emerge are state practice and opinio juris sive necessitas, or the objective and subjective elements respectively. The International Court of Justice (ICJ) in the Continental Shelf (Libya v. Malta) case also noted that “[i]t is … axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States.”Footnote 5 Likewise, Draft Conclusion 2 adopted by the ILC in 2016 states: “To determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris).”Footnote 6 But despite the apparent consensus, different meanings and weights are often assigned to the two elements of state practice and opinio juris. Thus, for instance, the ILA in its Final Report stressed that “the most important, component of customary international law [is] State practice.”Footnote 7 The report went on to state that “what seems clear is that, if there is a good deal of State practice, the need (if such there be) also to demonstrate the presence of the subjective element is likely to be dispensed with.”Footnote 8 In this view, “the more the practice, the less the need for the subjective element.”Footnote 9 However, in the ILC, “[t]he two-element approach was universally welcomed.”Footnote 10 Therefore Draft Conclusion 9(1) states: “The requirement … that the general practice be accepted as law (opinio juris) means that the practice in question must be undertaken with a sense of legal right or obligation.”Footnote 11 A third position that can be identified in the literature is that which distinguishes between “traditional” and “modern” CIL, with the latter relying on an inclusive notion of state practice (so as for instance to include resolutions of international organizations) and relatively greater emphasis on the element of opinio juris.Footnote 12 As has been pointed out, “[a] focus on opinio juris is appealing to those who want to expand the set of norms that are considered CIL”;Footnote 13 it can be said to represent an ethical turn in thinking about CIL. The “modern” concept of CIL indicates that there is no unique concept of opinio juris; it is a cultural concept that changes over time. But there are others that reject the distinction between “traditional” and “modern” approaches to CIL and require a more rigorous approach to opinio juris.Footnote 14 In sum, the formation of CIL has in recent times been a subject of much reflection and debate among international law scholars with the aim of advancing a coherent theory of CIL and clarifying the elements that constitute it.Footnote 15
The principal objective of the present article is however not to offer either a detailed recitation of standard materials or review ongoing debates on the subject of CIL. It is instead to delineate an alternative and distinctive account of the evolution, formation, and function of CIL. Toward this end, this article advances from the perspective of third world states a set of hypotheses and initial evidence in their support.Footnote 16 It argues that past and ongoing debates on the subject are largely ahistorical in nature, encased as these are in formalistic analysis and therefore divorced from a serious examination of linkages of CIL norms to regional and global social structures. The article advances the hypothesis that there is an intimate and inextricable link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the evolution of CIL.Footnote 17 It also contends that the historical role of CIL has been to facilitate the functioning of global capitalist system by filling crucial gaps in the international legal system. These gaps relate to either short term interests of capitalist states or the systemic interests of the global capitalist system.Footnote 18
A direct link between the functioning of global capitalism and CIL is most clearly revealed today in the domain of international investment law (IIL) wherein CIL principles such as the fair and equitable treatment (FET) principle sustain the immediate interests of universalizing capitalism. The general lack of availability of the state practice of third world nations compounds the problem of generating CIL norms that secure the interests of predominantly capital importing nations. The systemic interests of the global capitalist system are secured through the creation of rules that go to lend it both stability and legitimacy. The foundational CIL rule of pacta sunt servanda, which makes international law possible in an anarchic international system, is a supreme example of such a rule. Today, CIL rules in the areas of international human rights law (IHRL), international humanitarian law (IHL), international criminal law (ICL), and international environmental law (IENL) are also performing the function of sustaining its systemic interests through legitimizing global capitalism. In performing this role CIL parallels the function of the capitalist state at the national level—to protect and sustain a historical social order, if necessary even at the cost of the short-term interests of the global capitalist class or its dominant fraction.Footnote 19 To put it differently, in the absence of a world state its function is in a crucial way being performed by CIL. It is the inability to appreciate the significance of long term or systemic goals safeguarded by CIL that leads to skepticism among many western scholars, especially realist scholars, as to its value as a source of international law.
These scholars see those norms of CIL that do not pertain to the realization of short term interests of powerful capitalist nations as overly constraining. This anxiety is heightened in view of the expansion of the international community of states. In the context of the United States, scholars like Curtis Bradley, Jack Goldsmith, and Eric Posner have expressed the view that domestic courts should restrictively apply CIL.Footnote 20 They have also challenged the idea of “modern” CIL which can greatly expand the domain of CIL.Footnote 21 Such scholars are unable to recognize that in order to sustain the long-term interests of the global capitalist system the theoretical basis of CIL has to be suitably redefined to generate appropriate norms from time to time. Finally, there is also the lack of appreciation of the different techniques used to prevent third world states from using CIL to frame rules to the disadvantage of powerful capitalist nations, epitomized by the principle of persistent objector. In view of the problems with traditional and modern doctrines of CIL, a postmodern doctrine of CIL needs to be conceptualized to promote the global common good.
This article proceeds to make its arguments in the following way: Section II explores at first the reasons for the current focus on and continuing significance of CIL. It is important to go over this ground to prevent a rhetorical dismissal of the articulated hypotheses, theses, and critique by stating that CIL presently plays a negligible role as a source of international law. The section also seeks to understand the reasons for the sustained search for a coherent theory of CIL in the advanced capitalist states.Footnote 22 It advances the hypothesis that the rapid changes brought about by decolonization, the end of the Cold War, and the accelerated globalization process destabilized the historic consensus on the traditional doctrine of CIL and called for the articulation of fresh theories of CIL. The challenges posed to CIL as a source of international law can be said to have been met in western scholarship in two phases: 1960–1970 and 1980–present. The outcome has been new thinking on CIL that has assumed two principal forms: positing a distinction between “formal” and “material” sources of CIL and that between “traditional” and “modern” CIL. This period has also seen the invention of new doctrines, such as that of the “persistent objector,” to meet the challenge of postcolonial states seeking to use CIL to serve the interests of third world states.
Section III challenges the distinction between “formal” and “material” sources of CIL advanced by mainstream western scholarship and endorsed by the ILC and ILA. It is contended that by separating “formal” from “material” sources of rules, the ILA and ILC leave out of the picture the role of culture, power, and interest in the framing, making, and determination of formal sources of CIL.Footnote 23 It is argued that from the time of their initial conceptualization, the proposed distinction between “formal” and “material” sources of CIL veiled its roots in the western economic, cultural, and political order and its historic role in furthering the interests of capitalist nations. The positivist method which informs the distinction, the emergence and dominance of which dates back to the era of high imperialism, also allows a particular conceptualization of the formal elements that safeguard the interests of these nations. In essence, it is argued that the continuing analysis of a deeply sociological phenomenon such as CIL through a positivist method can be traced to the need to delink it from the imperialism of our times.
Section IV notes the implications of the positivist method in the face of the lack of availability of state practice of third world nations in determining the formation of CIL. It argues that the non-availability of the state practice of third world countries, and also the paucity of scholarly writings on the subject, allows the identification of rules of CIL primarily on the basis of state practice of advanced capitalist nations and the opinions of their scholars. In other words, while in theory the state practice of all nations is of import in the formation of CIL, this is not so in practice, allowing developed capitalist nations to shape CIL. Even if state practice of third world states is available, the doctrines of specially affected states and persistent objectors undermine their significance. The dearth of scholarly opinion from the third world has also meant that the proposition of separating “formal” from “material” sources has gone largely unchallenged.Footnote 24 With the result that assumptions which inform the western cultural and political order of capitalist nations continue to influence and infiltrate the concept of CIL.
Section V contends that the distinction between “traditional” and “modern” CIL has been advanced to allow its rapid development to fill critical gaps in the international legal system in the era of neoliberal capitalist globalization. The filling of these gaps is crucial to sustaining the global capitalist system in the long run. In order to clarify the formation of “modern” CIL, the concept of “hegemony,” as associated with the work of Antonio Gramsci, is introduced. It helps to understand how in the postcolonial era, the voluntary consent of subaltern states and peoples to rules of CIL is secured; in the colonial era, CIL rules were largely imposed through coercion.Footnote 25 It is argued that it has always been a combination of ideas and beliefs and power that gives rise to CIL. A distinction is made here between “dominant” and “hegemonic” ideas and beliefs. In the former, power has a greater role to play than when ideas and beliefs become “hegemonic.” The formation of CIL through a combination of power and dominant ideas is illustrated with reference to the emergence of the IIL principle of FET in the post Cold War era. The FET principle was articulated in normative initiatives of international institutions and awards of international tribunals, amidst prevailing power dynamics, and goes to defend the short-term interests of global capital. Only the sustained resistance of a global coalition of third world states and progressive forces of civil society can help reorient the FET principle to deliver justice to third world peoples. “Modern” CIL rules embody “hegemonic” ideas and beliefs that are critical to realizing the systemic interests of the global capitalist system. These ideas and beliefs have come to be internalized by third world nations in the postcolonial era. A significant reason is that the ideas and beliefs that inform “modern” CIL tend to have a progressive content. Therefore, these face less resistance from subaltern groups and states.
Section VI touches on the limits of modern CIL and proceeds to identify some bare elements of a postmodern doctrine of CIL that can help realize the global common good. The essence of the postmodern doctrine is the formation of CIL on the basis of deliberative reasoning rather than mere coordination of states. In this context, the dissenting opinion of Judge Antônio Augusto Cançado Trindade in the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) case is used to distinguish between opinio juris as a constituent element of CIL and opinio juris communis as representing the juridical conscience of mankind.Footnote 26 Second, the possible role of resolutions of international organizations and practices of global civil society in the formation of CIL is briefly discussed. Section VII contains some final remarks by way of conclusion.
II. Significance of CIL: Search for a Theory
There are several reasons for the current focus on CIL. These need to be recapitulated in order to demonstrate that the codification of rules of CIL formation and ongoing debates on it, and more generally on CIL as a source of international law, are not unnecessary or infructuous. In summary form, the reasons for increased attention to CIL include its continuing importance as a source of international law, its direct application by domestic courts, its invocation by proliferating international tribunals, the diminished opposition from third world states, and the felt need for a coherent theory of CIL. These reasons may be briefly elaborated. First, there is the continuing salience of CIL as a source of international law.Footnote 27 As the First ILC Report of SR emphasized:
Even in fields where there are widely accepted “codification” conventions, the rules of customary international law continue to govern questions not regulated by the conventions and continue to apply in relations with and between non-parties. Rules of customary international law may also fill possible lacunae in treaties, and assist in their interpretation.Footnote 28
This statement does not do full justice to the role of CIL in helping fill critical gaps in the international legal system. Even after the treaty making revolution in the nineteenth and twentieth centuries, CIL plays an important role in the basic areas of state responsibility, international law relating to jurisdiction, state immunity, the use of force, and interpretation of treaties.Footnote 29 CIL is playing an especially significant role in the development of specialized fields of international law such as IHRL, IHL, ICL, IIL, IENL, international space law (ISL), and international watercourses law (IWL).Footnote 30 To be sure, as the ILC Report notes, many of the rules have been included in treaties. But as Michael Scharf points out,
CIL expands the reach of the rules to states that have not yet ratified the treaty; further the CIL status of the rules can apply to actions of treaty parties that predated the entry into force of the treaty. Moreover, unlike treaties which permit withdrawal simply by giving advance notice, “customary international law does not recognize a unilateral right” to escape its obligations.Footnote 31
The evolution of CIL in the indicated areas of international law are crucial in lending stability and legitimacy to an expanding capitalist system in the era of accelerated globalization, necessitating for some the distinction between “traditional” and “modern” CIL, the latter facilitating its swift development.Footnote 32 It is of course the claim of the proponents of modern CIL that by helping cope with rapid change, modern CIL benefits the entire international community of states.Footnote 33 As Andrew Guzman and Jerome Hsiang observe, while “[t]here is a theoretical possibility that some states could consistently be among those that are harmed … in practice this result seems unlikely.”Footnote 34 The assessment whether rules of CIL advance global common good, however, depends on the perspective that is adopted. This article contends that from a third world perspective, modern CIL, like its traditional counterpart, essentially safeguards the interests of the advanced capitalist nations even as it at times addresses concerns of the entire international community.
A second reason for the attention CIL is receiving is that “the vast majority of national legal systems now recognize custom as directly applicable, at least in principle.”Footnote 35 It calls for a coherent theory of CIL that is acceptable to the courts of different nations. As an ILC report notes, the “revival of interest in the formation of customary international law, [is] in part stimulated by the attempts, sometimes quite controversial, of domestic courts to grapple with the issue.”Footnote 36 The significance of domestic law in the internalization and implementation of international law is only likely to grow in the future.Footnote 37 This raises a set of concerns among western scholars. There is anxiety that each national jurisdiction may adopt its own understanding of CIL, thus undermining the crucial role of CIL in the international system. The need for authoritative guidance for the identification of CIL is also deemed necessary to prevent proliferation of interpretations and understandings that could limit the movement and operation of global capital. Finally, there is concern that the application of CIL by domestic courts may constrain the actions of powerful nations. This explains why there has been acrimonious debate in the United States on the authority of domestic courts to apply rules of CIL. As Bradley, Goldsmith, and David H. Moore have noted, “[t]he most contested issue in U.S. foreign relations law during the last decade has been the domestic status of customary international law (CIL).”Footnote 38 A principal concern is the determination by courts of the place of CIL in the U.S. constitutional scheme. According to one view, “CIL would provide a basis for federal question jurisdiction, and courts would be authorized to use CIL to preempt inconsistent state law and possibly even to override executive branch action and some federal legislation.”Footnote 39 According to another view, CIL is not automatically part of U.S. federal law, but only when “its incorporation has been authorized either by the structure of the Constitution or by the political branches, and it is to be applied interstitially in a manner consistent with the relevant policies of the political branches.”Footnote 40 The latter view offers much more scope for cherry picking CIL rules that promote U.S interests.
Third, there is the proliferation of international tribunals that include the International Centre for the Settlement of Investment Disputes (ICSID), International Tribunal for the Law of the Sea (ITLOS), the World Trade Organization (WTO) Dispute Settlement System (DSS), the International Criminal Court (ICC), and a growing number of international arbitrations. The growth of international tribunals also gave rise to the felt need for a sustainable theory of CIL that provides firm justification for their use. This was especially the case in the field of IIL. If international tribunals had to treat “new” principles of IIL, such as FET and full protection and security (FPS), as CIL, a suitable theory had to be devised. A fitting theory was also necessary to surmount the opposition of third world countries and scholars to principles such as prompt, due and effective compensation for the nationalization and expropriation of alien property.Footnote 41 As has been observed:
The preservation of the authority of arbitral tribunals is what makes the question of the theory of the sources of investment law so cardinal. In other words, the crux of the theory of the sources of investment law is precisely the preservation of the legitimacy of cross-referencing practice of investment tribunals. Theories of sources are necessarily conducive to ensuring the legitimacy and authority of judicial decisions.Footnote 42
In short, in an expanded international community of states, it was no longer possible for international tribunals to continue with an untheorized theory of CIL.
Fourth, the collapse of the Soviet Union and the reduced challenge of third world states to CIL facilitated the possibility of advancing a theory of CIL that would be widely acceptable. In other words, these factors made it possible for western international lawyers, and the codification institutions they dominate, to arrive at a consensus on the procedure for the identification of rules of CIL. In recent times, as an ILC Report observes, the “ideological objections to the role of customary international law have diminished.”Footnote 43 It may be recalled that while the Soviet Union had slowly come to accept CIL as a source of international law, a great degree of skepticism remained, explaining its continuing embrace of the theory of tacit consent.Footnote 44 The end of the Soviet Union cleared the way for adopting rules for the identification of CIL favored by western states and scholars. The other development was that postcolonial states no longer sternly questioned the rules of CIL. Judge Mohammed Bedjaoui had noted of the earlier period that “[a]s soon as the new States came into being, the content, nature and constituent elements of customary law were called into question.”Footnote 45 The contestation by Soviet Union and postcolonial states of extant rules for the formation of CIL destabilized what was a relatively untheorized concept of CIL. Historically, as Jean d'Aspremont points out in relation to the critical field of IIL, practicing investment lawyers had “hardly felt the need [to theorize CIL].”Footnote 46 They essentially worked with a conception of sources of IIL which bespoke of “a very permissive and loose concept of customary law.”Footnote 47 Indeed, “[a]ny investigation in the foundations of the sources of investment law … seemed overly arcane to such practitioners … an invitation to explore its theoretical foundations a purely academic whim.”Footnote 48 In short, this meant that the doctrine of sources was “deemed an issue of secondary importance in investment law.”Footnote 49 Western investment lawyers simply went about “affirming the customary character of the international minimum standards which foreign investors were entitled to as all aliens abroad.”Footnote 50 It is only when it came to be challenged by newly independent states in the 1960s and 1970s, as can be seen from the provisions relating to the compensation for expropriated or nationalized property in the 1962 UN General Assembly Resolutions on the Permanent Sovereignty over Natural Resources (PSNR) and the 1974 Charter of Economic Rights and Duties of States (CERDS), that there was a felt need to theorize CIL so that the understanding advanced by postcolonial states could be contested.Footnote 51 This challenge may have diminished in recent years but had to find an appropriate conceptual response.
Last but not least, the ongoing engagement with the world of CIL is rooted in the fact that it offers deep insight into the history, nature, and character of modern international law. As is being argued in the present article, the evolution of CIL has much to tell us of the role of ideas, beliefs, and power in the lawmaking process in international society.Footnote 52 From a third world perspective, CIL reveals the foundational role of the interests of European states, European legal consciousness, and European social and political theories in the making of modern international law. For that reason, the contestation of CIL rules by non-western nations and scholars has to begin there.
Meanwhile, for all these reasons, the traditional understanding of CIL has been revisited by western international law scholars in the postcolonial era. This has happened in roughly two phases. In the 1960s and 1970s, some writings on the subject of CIL appeared that called for placing CIL on a firm theoretical basis.Footnote 53 Anthony D'Amato bluntly wrote that “[t]he questions of how custom comes into being and how it can be changed or modified are wrapped in mystery and illogic.”Footnote 54 The response to the theoretical disarray did not take long in coming. It was in this period that the ICJ, as yet dominated by judges from the western world, made its key pronouncement in the North Sea Continental Shelf case.Footnote 55 It attempted to clarify the principles applicable to the formation of CIL. A distinction between “formal” and “material” sources of CIL was posited in an effort to disengage CIL from its historical origins. The need to advance a coherent theory of CIL assumed a new urgency beginning in the mid-1980s—from the dawn of the era of neoliberal globalization that, inter alia, called for rules of CIL to protect the interests of hypermobile capital. Furthermore, as an ILC Report observed, “[t]he formation of customary international law now has to be seen in the context of a world of nearly 200 States, and numerous and varied international organizations, both regional and universal.”Footnote 56 It inaugurated a second phase of engagement with CIL. In the next decades there was renewed recognition that “current notions of CIL are untenable [and] … existing views of CIL lack theoretical consistency and integrity. It is past time to adopt a more rigorous approach to analyzing this source of international law.”Footnote 57 An attempt was made to salvage CIL as a source of international law by advancing theories that were sufficiently flexible to both protect the immediate and long-term or systemic interests of powerful states.
On the one hand, the distinction between “formal” and “material” sources hardened in this period in a bid to divorce issues of formation of CIL from its distributional consequences. This happened in response to critics like Judge Bedjaoui who, in his seminal work Toward a New International Economic Order, expressed deep skepticism about CIL being able to play a role in transforming international law to meet the aspirations of third world peoples. In his view, CIL was inherently undemocratic and unjust and a particular understanding of the meaning of “formal” sources—the constituent elements of CIL—merely veiled that reality. Judge Bedjaoui interpreted the rules for the identification of CIL in a more inclusive manner so as to allow certain qualifying resolutions of international organizations (that satisfy certain criteria such as extended negotiations, broad consensus, clear articulation, and subsequent affirmations) to ipso facto give rise to new rules of CIL that facilitated the creation of the new international economic order. On the other hand, a distinction between “traditional” and “modern” CIL came to be articulated. The proponents of the latter also embraced a more adaptable understanding of the rule of formation of CIL, but did not argue the case for norms backed by third world nations. Thus, while flexible approaches came to be articulated by both western and third world scholars, they were for divergent purposes: the latter relying on CIL to stabilize the emerging neoliberal global order and the former often to challenge it. In the contestation of ideas, power eventually carried the day. It was also the case that third world states were not able to effectively make the argument that changes they wished to bring about were in the interest of all nations. In claiming that CIL was a slow and clumsy source of international law, Judge Bedjaoui failed to appreciate the double face of CIL—that it was slow and clumsy only in so far as weak actors are concerned but a dynamic source of international law when it came to powerful actors. A new doctrine of persistent objector also emerged to accommodate the concerns of western nations in an expanding society of international states.Footnote 58 The theoretical standpoints regarding the distinction between “formal” and “material” sources and that between “traditional” and “modern” CIL eventually led to the subject being taken up for codification by the ILA and then the ILC. The principal aim was to lend the concept of CIL clarity and acceptability, necessary if it is to play the important role of providing stability and legitimacy to the international system in the era of accelerated globalization. However, in a deeper sense, the effort was to come to terms with the far-reaching contestation by third world nations of the nature and state of contemporary international law.Footnote 59 The distinction between “formal” and “material” sources of CIL was also advanced to displace the challenge being mounted by critical theories demonstrating that international law has always served the interests of powerful actors in the international system.Footnote 60
III. Separating Formal and Material Sources: Colonial Origins of CIL
In his very First Report to the ILC, the special rapporteur proposed that in considering the topic “Identification of Customary International Law,” the “formal” sources of CIL should be considered in separation from “material” sources. He observed that in the context of the task assigned to ILC, the term “source” meant a formal source—“that which gives to the content of rules of international law their character as law.”Footnote 61 The ILC special rapporteur elucidated the distinction between “formal” and “material” sources in a footnote citing A. Pellet who contends that:
The formal sources of international law are “the processes through which international law rules become legally relevant,” while the material sources “can be defined as the political, sociological, economic, moral or religious origins of the legal rules.”Footnote 62
Earlier, the ILA had noted that “it is concerned only with the formation of rules of customary international law.”Footnote 63 It had then proceeded to distinguish between “formal” sources, “which are those processes which, if they are observed, create rules of law (such as treaties and custom),” and “an ‘historic’ source of a rule (otherwise known as a ‘material’ source). The latter is the historic origin of a rule which only obtains its legal force, however, when it is subjected to a law-making process (a formal source).”Footnote 64
The problem with the distinction between “formal” and “material” sources is that it conceals the historical fact that the twin elements of state practice and opinio juris that together constitute the “formal” source of CIL were identified and given meaning in the context of the relationship between European nations with a broadly shared culture and the stage of economic development.Footnote 65 Theoretically speaking there is no unique definition of “formal” sources of CIL or its constituent elements, or the weight to be assigned to them. There can be alternative ways of identifying the formal sources of CIL, as can be seen in the work of those scholars who support the idea of modern CIL relying heavily on the element of opinio juris. Indeed, in their essay titled “How Customary Is Customary International Law,” Emily Kadens and Ernest Young observe that “the history of customary law indicates a longstanding struggle to find a cogent and functional definition of custom.”Footnote 66 They go on to conclude that “[t]here is, if you will, no settled customary practice governing how to define customary rules of law.”Footnote 67 According to Kadens and Young, “[t]he signal lesson is one of indeterminacy.”Footnote 68 In the same vein, speaking to the element of state practice, Anthony Carty has observed that “within the history of the discipline itself it may always be possible to recover new parameters for exploring the history of state practice … by reverting to a different theory of doctrine.”Footnote 69 The term “civilized nations” that occurs in Article 38(1) of the ICJ Statute (in the context of the third principal source of international law: general principles of law) is a reminder of how the “formal” and “material” sources were historically tied together, facilitating the colonization of non-western nations. Therefore, while in view of the practical nature of the task assigned to the ILC the distinction between them may have some merit, it is made at the expense of denying the common roots of “formal” and “material” sources of CIL in European cultural and material traditions in the colonial era.
It does not therefore come as a surprise that in the postcolonial era, attempts have been made by western international law scholars to conceal the common roots of “formal” and “material” sources of CIL. Its discovery threatened to disclose the parochial and racist origins of the rules of CIL. Therefore, from the very dawn of the decolonization process, the distinction between “formal” and “material” sources came to be advanced. Writing in the early 1950s, Josef Kunz stressed the need to confine (albeit admittedly from the standpoint of a pure theory of law) the meaning of “sources” of international law to “formal sources”:
Our problem must not be confused … with the entirely different problem of the foundation of international law, whether understood in a formal sense-as the “basic norm”—or in a material sense as the “ultimate” foundation. The latter problem is by its very essence a meta-juridical problem, a problem not of the science, but of the philosophy of law.Footnote 70
Two decades later, looking at the different meanings of the term “source,” D'Amato observed that “one has only to look at the numerous definitions [of ‘sources’] advanced from time to time to see the ambiguities involved in this term” and went on to identify at least “six planes of discourse” in the literature, eventually finding none of them satisfactory.Footnote 71 What is interesting is that in identifying six different meanings of the term “source,” D'Amato did not include its most obvious meaning, namely the social, cultural, and political roots of CIL. He mentioned this meaning only while considering attempts to “solve the problem” of different meaning of “source.” In this context, D'Amato cited an essay of Judge Gerald Fitzmaurice who spoke of “material” source as “historical,” “indirect,” and “remote,”Footnote 72 but proceeded to dismiss the need to take cognizance of them. It can be surmised that D'Amato was uneasy about tracing “formal” sources to “material” sources, as pursuing this course of action—the Cold War was still on—inexorably led to the conclusion that CIL, and therefore international law, had historically served the interests of western imperialism. But there is no escaping the conclusion that “formal” and “material” sources of CIL are intimately related to the European social, cultural, and political order that shaped and was in turn shaped by the colonial project.Footnote 73 As J. Patrick Kelly has noted, customary norms are the product of societies that “share common values, history and tradition. … It is law from below, not hierarchical law imposed from above.”Footnote 74
A few more words may be said on the genesis of CIL to substantiate the hypothesis advanced above. There is general agreement that the modern doctrine of CIL originated in the nineteenth century. According to Yasuaki Onuma, “[u]ntil the late nineteenth century, customary international law occupied only a marginal place.”Footnote 75 Carty likewise notes that “[f]rom Suarez to Bynkershoek to Vattel, there was no concept of general customary law.”Footnote 76 In fact, in his view, “there was no concept of state practice at all, as we now understand it.”Footnote 77 According to Carty, “the notion of state practice is an invention of international legal doctrine in the course of the 19th century.”Footnote 78 The reason for the absence of the notion of “state practice” before that can be traced to natural law thinking that dominated the discipline.Footnote 79 It did not call for extensive reference to the practice of states; colonialism was justified through cogitations on secular natural law.Footnote 80 The genesis of CIL can therefore be traced to the emergence of the positivist method in the nineteenth century.Footnote 81 However, to understand the relationship between the positivist method and a particular conceptualization of CIL, as also the CIL rules that emerged in the period, reference needs to be made to two other developments.
First, as Milos Vec points out, it is in the nineteenth century that the idea of European states forming a legal community was advanced: “Lawyers frequently mentioned the common history and Christian religion of the continent, the existing foundations of treaties and the shared idea of legal consciousness and mutual recognition as common basis of these countries to form ‘the international society.’”Footnote 82 It is pertinent to recall here that the historical school of law, which influenced the development of the doctrine of CIL, had in the domestic context “rejected any idea that a standard of conduct could be imposed from without. It had to flow organically from within a national culture.”Footnote 83 In the instance of international law, it meant that the standard of conduct which counted as practice had to spring from organic European culture. To be sure, there was and is no monolithic European “culture.” But one may legitimately speak of a hegemonic culture (in the past or the present) and “of legal categories and techniques as generative of certain kinds of social, political, and epistemological realities.”Footnote 84 At the core of organic European culture in the colonial era was the belief in the civilizing mission. It involved the marriage of expanding capitalism with orientalism. To put it differently, imperialism entered a new phase in the nineteenth century that both strengthened European legal consciousness and spurred the development of CIL to facilitate “new” imperialism.Footnote 85
Second, it was believed at this time that “Europe with its customs and political and cultural relations were at the theoretical centre of the emergence of international law.”Footnote 86 A key question that came to be considered was which nations were to be counted as being part of this international legal community.Footnote 87 The Treaty of Paris 1856 “shifted the criteria of inclusion from ‘European’ to ‘civilized,’”Footnote 88 a distinction that also came to inform the doctrine of CIL.Footnote 89 Thus, the positivist method, and a particular understanding of CIL, was given life in a particular cultural and political milieu that excluded reference to the practice of non-European states which were classified as “uncivilized.” To put it differently, the doctrine of CIL came to be embedded in a regional legal consciousness anchored in the distinction between civilized and uncivilized states.
The argument that the “formal” and “material” sources of CIL cannot be separated can also be substantiated by reference to the intellectual resources that contributed to its conceptualization. The doctrine of CIL has its basis in Roman law and European legal philosophy, legal sociology, and legal psychology of the late nineteenth and early twentieth century.Footnote 90 Despite their influence, these sources have not been seriously explored, forget any “serious attempt…to identify the ambiguities and contradictions in these theories.”Footnote 91 When these do come to be referred, it is only “in support of the status quo.”Footnote 92 Of particular significance in the conceptualization of the traditional doctrine of CIL was Francois Gény's work, which is said to have identified state practice and opinio juris as the constituent elements of a custom.Footnote 93 His work was entrenched in natural law with positive law treated “as merely a body of rules adapted to the exigencies of time and place for the purpose of achieving in actual operation the balance of conflicting interests which is the essence of justice.”Footnote 94 According to Gény, “[o]nly natural law … furnishes the indispensable basis for a truly scientific elaboration of positive law.”Footnote 95 It was of course European culture that informed the meaning of natural law and was the backdrop in which CIL was approached.Footnote 96 The French legal sociologist Leon Duguit reinforced this understanding as he derived the obligatory nature of international law “from an international legal consciousness that certain rules are indispensable for the continued existence of the international community.”Footnote 97 It is true that whereas Duguit relied “on the fact of ‘social solidarity’ in order to build a system of natural law upon that single concept,” Gény vigorously asserted that “a single principle, general and abstract, cannot contain the rich variety of rules necessary adequately to direct social life …”Footnote 98 But both invoked the importance of natural law that carried background assumptions that helped determine relevant state practice and opinio juris, or more specifically what is meant by state practice and opinio juris. These were assigned meaning in a Eurocentric world.
The meaning of both state practice and opinio juris were sought to be changed by postcolonial states. In the face of their challenge, the old distinction between civilized and uncivilized states could no longer be sustained. The turn to opinio juris among proponents of modern CIL is in many ways a response to the expanded community of states which makes dependence on state practice problematic, necessitating reliance on ethical reasoning. The argument has larger resonance as well. John Tasioulas, for instance, argues that the most legitimate interpretation of state practice and opinio juris is partly a matter of which interpretation has the “greatest ethical appeal … determined by reference to the ethical values [international law] is intended to secure … [which] include peaceful co-existence, human rights, and environmental values, among others.”Footnote 99 While the turn to ethics signals a return to secular natural law, it threatens to expose the historical roots of CIL, which were embedded in the European imagination of an international legal order.Footnote 100 It is often forgotten that positivism has no foundations to stand on if the background assumptions of European natural law traditions are taken away. In as much as imperialism was central to the shaping of modern international law, the convenient mix of positivism and natural law arrived at in different historical periods by western legal scholarship reflect its different phases. It is therefore no accident that what has been common since the nineteenth century is that subaltern actors either do not speak or are not assigned adequate weight. But the problem that realist critics of modern CIL have is that it is “a dangerously manipulable, unbearably light source of international norms.”Footnote 101 But this view disregards the fact that CIL has a “utopian potential,”Footnote 102 which can legitimize the global capitalist system in times of system transformation and in the process contribute to “the generation of genuinely communal norms in international law.”Footnote 103 In other words, modern CIL can help address a range of divides that threaten the equilibrium of the system through appropriate developments in international law. These include the race and gender divides. The short point is that no legal system can secure its legitimacy without projecting its utopian desires. This is the role modern CIL plays through creating norms that hold out the possibility of realizing a capitalist utopia on a global scale. It is another matter that the move to modern CIL undermines the separation of “formal” and “material” sources that helps obscure the social and historical contexts in which rules of CIL emerge and in the final analysis become the carriers of imperial values and understandings.Footnote 104
A final point that needs to be considered with respect to the historical evolution of CIL is the significance of CIL in the nineteenth century. It is often said that the expansion of international law in the nineteenth century took place through treaties because “customary law was not an adequate instrument for the emergence of new principles and rules that were needed under the historical-teleological premise.”Footnote 105 But while a “treaty making revolution” may have taken place in the nineteenth century,Footnote 106 CIL continued to play a crucial role in the creation of rules for the regulation of activities of European states. Thus, the law of the sea, critical to the colonial project, was almost entirely a product of CIL: the doctrine of freedom of the seas, innocent passage, and contiguous zone became its integral part in the nineteenth century.Footnote 107 The same can be said about prize law. David Bederman writes that “[b]y 1815, there had developed a highly elaborate body of jurisprudence dealing with maritime captures, largely administered by domestic prize courts and applying an international customary law on the subject.”Footnote 108 The situation was no different when it came to the international law relating to the acquisition of territory and law of state responsibility.Footnote 109 There was also “a permissive custom of intervention” at this time.Footnote 110 In short, the genesis of the doctrine of CIL can be traced to the emergence of Europe as a legal community, common European values, the positivist method, and the needs of nineteenth century imperialism.
Therefore, the ILA and ILC attempts at separating the “formal” from “material” sources of CIL cannot be merely attributed to the pragmatic nature of the exercise. They are, objectively speaking, attempts to veil the fact that the concept of CIL is a carrier of particular epistemology, culture, and values that marginalize third world voices. The doctrine of CIL has deep roots in western culture that define both the external element of state practice and the internal element of opinio juris.Footnote 111 To put it differently, the distinction between “formal” and “material” sources underplays the role of the world of ideas and beliefs in the formation of CIL, even as power plays a critical role. However, before turning to the subject of the “dominance” and “hegemony” of western ideas in the postcolonial era, and their role in the formation of modern CIL, it is important to note the fact and implications of the relative non-availability and neglect of the state practice of third world nations. It aggravates the distinction between “formal” and “material” sources of CIL.
IV. Unavailability and Neglect of Practices of Third World States
In determining the emergence of a CIL rule, the evidence of state practice to be considered has been democratized in principle in the postcolonial era, but for a variety of reasons it is far from being the case in practice.Footnote 112 There are a number of issues that call for discussion with respect to the absence and neglect of the state practice of third world nations.Footnote 113
First, there is the general lack of availability of state practice of third world nations.Footnote 114 This was a concern expressed by the ILC as early as 1949–1950.Footnote 115 The situation has not changed substantially, even seven decades later. As a recent ILC Report laments, “[s]o far there has been only limited response to the Commission's request to States” for relevant materials.Footnote 116 The problem is that the practice of third world states is, in many cases, not systematically assembled and published, making it difficult for it to be furnished or taken into account. The reason for this state of affairs can be traced to, among other things, the lack of human and financial resources to gather and disseminate legally relevant practice.Footnote 117 It is also perhaps the case that the practice of active documentation and preparation of digests is part of some cultures more than others, revealing once again that the idea of “formal source” is far from being neutral. The issue of language is also pertinent for translation of calls for vast resources to be expended. In any event the historic centrality of western state practice in the formation of rules of CIL continues.Footnote 118 As Onuma observes, “[l]eading Western international lawyers chose the practice of a few, yet powerful and influential, Western States, and regarded it tacitly or explicitly as representative of general practice of States.”Footnote 119
Kelly likewise writes that “[t]he analysis of state practice in the literature of the West, particularly among Anglo-American writers, is based almost exclusively on Western practice. The practices and attitudes of Japan, China, and the many nations of Africa, Asia, and Latin America are virtually ignored in the Western literature.”Footnote 120 According to him, “much of CIL is determined by the … practices of a minority of states.”Footnote 121 Furthermore “[j]udges and writers only rarely engage in a detailed inquiry into state practice.”Footnote 122 But it is no longer acceptable to determine a rule of CIL on the basis of the practice of a few western nations. As Judge Manfred Lachs observed in his dissenting judgment in the North Sea Continental Shelf case:
[I]n the world today an essential factor in the formation of a new rule of general international law is . . . that States with different political, economic and legal systems, States of all continents, participate in the process. No more can a general rule of international law be established by the fiat of one or of a few, or—as it was once claimed—by the consensus of European States only. …Footnote 123
Kelly therefore concludes that “the CIL process lacks procedural legitimacy. … Few nations participate in the formation of norms said to be customary. The less powerful nations and voices are ignored.”Footnote 124 In short, a deep democratic deficit characterizes the formation of CIL. This is particularly the case in courts of advanced capitalist nations. As Ryan Scoville has concluded in a recent article titled “Finding International Customary International Law,” in U.S courts:
International and federal common law have long held that CIL depends upon the existence of both general and consistent state practice and opinio juris. Yet citation patterns suggest that federal courts do not follow this doctrine. Courts depend heavily on portrayals of CIL in other U.S. government sources, rarely consider direct evidence of foreign state practice, focus almost exclusively on the advanced democracies of the West even when they do look abroad, and cite to Western academics who exhibit a similar tendency to focus on the laws and policies of the West. In short, federal courts are not applying customary international law in any strict doctrinal sense. The norms they have framed as CIL are domestic and Western norms that simply may or may not align with the practices and views of a clear majority of states.Footnote 125
This situation is disturbing and needs to change in a world in which the principle of sovereign equality of states is a foundational norm of inter-state relations.
Second, in weighing state practice its representativeness is evaluated in a manner that reduces the significance of the practices of non-western states.Footnote 126 Thus for instance the ILA Final Report observes that “[p]rovided that participation is sufficiently representative, it is not normally necessary for even a majority of States to have engaged in the practice, provided that there is no significant dissent.”Footnote 127 But the lack of availability and accessibility of state practice of third world nations means that the record of dissent of majority of states may not simply be available. The meaning of “sufficiently representative” can then come to be equated with the practice of powerful western nations (and at best the practice of a few non-western nations). This can also be seen from the idea of “representation” that the ILA deployed:
The criterion of representativeness has … a dual aspect—negative and positive. The positive aspect is that, if all major interests (“specially affected States”) are represented, it is not essential for a majority of States to have participated (still less a great majority, or all of them). The negative aspect is that if important actors do not accept the practice, it cannot mature into a rule of general customary law.Footnote 128
The ILA Report then goes on to observe:
The fact that the test is not purely quantitative may appear undemocratic. But leaving aside the question what is meant by “democratic” in this context, it should be noted that customary systems are rarely completely democratic: the more important participants play a particularly significant role in the process. And certainly, the international system as a whole is far from democratic.Footnote 129
This is in many ways an extraordinary statement coming from the ILA.Footnote 130 While couched in neutral language, the idea of “representation” is essentially defined in relation to the criteria of power as against that of (procedural) legitimacy. While other bodies and scholars may not make such a confession it is always the underlying premise in identifying CIL.Footnote 131
Third, at a time when, at least in principle, the practice of a predominant majority of states needs to be given due weightage, a persistent objector rule has been invented to allow powerful states an escape route from particular rules of CIL.Footnote 132 Thus, ILC Draft Conclusion 15(1) of 2016 reads:
Where a State has objected to a rule of customary international law while that rule was in the process of formation, the rule is not opposable to the State concerned for so long as it maintains its objection.Footnote 133
It needs to be stressed that the persistent objector rule is of recent origin. As Kelly points out:
The modern universal theory had no persistent objector principle until recently. Latin American nations were considered bound to CIL principles in the late 19th century and throughout the 20th century, including the disputed law of state responsibility, despite continuous objections by a large number of nations. This era might better be characterized as one of domination over the expressed will of many nations.Footnote 134
The rule of persistent objector was developed to safeguard the concerns of western capitalist powers after the beginning of the Cold War. According to Michael Byers, the ICJ first endorsed the rule during the initial years of the Cold War in the 1950 Asylum Case.Footnote 135 But there was some concern that the rule may be invoked by postcolonial states in IIL, which embodies core interests of powerful states. Michael Reisman's take on the rule of persistent objector is in that instance interesting. Noting that “the formation of customary international law does not require the inclusion of all States nor complete uniformity in State Behavior,” he writes:
A concomitant of this phenomenon is the erosion of the “persistent objector” rule. While it is recognized that a State may, by persistent objection during the formation of a customary rule, succeed in exempting the application of the rule to itself, “with the increasing emergence of communitarian norms, the incidence of the persistent objector rule may be limited.” Thus, even a persistent objector may not be able to prevent the application of the customary rule to itself.Footnote 136
This is the classic “heads I win and tails you lose” situation. It can be safely presumed that in a field other than IIL it could be invoked by powerful states as promoting democratic lawmaking in a sovereign state system. It can thus be concluded that “[t]he persistent objector principle, far from being a integral part of CIL theory, is a new concept and one of doubtful pedigree.”Footnote 137 By default it does not apply in the instance of third world States as these do not diligently follow claims about the emergence of a rule of CIL.Footnote 138 It is true that the growing number and presence of international organizations allows non-western states to record their vote on many issues, but it is most often not accompanied by any explanation.Footnote 139 This reality compounds the fact that in the postcolonial era, the newly independent states did not have the opportunity to contest prior CIL rules. These states were, in the words of Judge Bedjaoui, “victim of real ‘legal venality,’ having had to pay ransom or tribute for its entry into the national community.”Footnote 140 Western scholars justified the situation by arguing that a newly independent state, “by participating in the customary process and relying on customary rules, is implicitly consenting to that process as well as to all of the customary rules which have previously been developed through it.”Footnote 141 Even the ILA Final Report observed that “newly-independent States or those new to a particular activity are bound by existing rules of customary law. Although the contrary view is occasionally found in the academic literature, this proposition has not been seriously contested by States which fall into either category.”Footnote 142 The reality in fact was that the third world states had “not undertaken a systematic reevaluation of international customary norms.”Footnote 143 To correct the situation, Guzman proposes the following rule for the future: “A state should be permitted to object to a rule of CIL at the time of the state's formation. An objecting new state should be treated in the same way as a persistent objector.”Footnote 144 But the proposal comes too late in the day.
Fourth, there is the problem of inaccessible state practice flowing from “the closure of contemporary archives of States.”Footnote 145 While this phenomenon admittedly cuts across all states, it impacts third world states more given the general lack of availability of state practice. The reason for the lack of transparency, as Carty points out, is “the distrust that nations have of one another,” and, one may add, states of their people, preventing “the disclosure of state intentions and true underlying state practices.”Footnote 146 Additionally, as Carty goes on to observe, “[d]octrine persists pragmatically with unscientific constructions of this practice, as does international jurisprudence.”Footnote 147 There is the added problem that classical realists like Hans Morgenthau drew attention to in relation to political treatiesFootnote 148 —it is that even when disclosed it is difficult to know what “state practice” a political treaty represents, as its meaning is often concealed through the use of ambiguous phraseology.Footnote 149
Fifth, among the materials to be consulted in identifying rules of CIL are “views of publicists, in particular as to the general approach to the formation and evidence of customary international law.”Footnote 150 ILC Draft Conclusion 14 of 2016 states in this regard that “[t]eachings of the most highly qualified publicists of the various nations may serve as a subsidiary means for the determination of rules of customary international law.”Footnote 151 In the past, western writers dominated the process of the creation of “customary” international law.Footnote 152 Therefore, during the course of discussions in the ILC, some members stressed that “the selection of relevant writings” should not amount to “preference for writers from specific regions but had to be universal.”Footnote 153 In response, the Special Rapporteur accepted that “the writings of jurists representing different legal systems of the world needed to be reflected in the commentary.”Footnote 154 The problem once again is that few third world scholars have expressed their views on the subject; the community of international lawyers remains small with poor access to necessary materials. What is more, since third world scholars have been more concerned with the role of CIL in inhibiting reforms in the international legal system, these writings are not, following the distinction between “formal” and “material” sources, considered by the ILC to pertain to the identification of CIL rules. This perhaps explains why Judge Bedjaoui's name does not appear in the extensive references contained in the ILC First Report of Special Rapporteur.Footnote 155 In lamenting that rules of CIL were slow to emerge where the interests of weak actors are concerned, Judge Bedjaoui apparently addressed “material” sources.Footnote 156 In short, there is very often a certain artificial commonality in the opinions gathered by the ILC on the issue of identification of CIL.
Sixth, as will be touched upon in Section VI, while discussing elements that could constitute a postmodern doctrine of CIL, resolutions of qualifying international organizations are not given adequate weight and practices of global civil society of critical interest to third world states not taken into account.Footnote 157
Finally, it may be noted with respect to state practice, that in determining CIL, “the main method” employed by the International Court of Justice (ICJ) “is neither induction nor deduction but, rather, assertion.”Footnote 158 In Talmon's view, deductive reasoning is used to “replace or lower the standard of inductive evidence or establish a burden of proof necessary for the inductive method to reach a result.”Footnote 159 This move is facilitated by the fact that “[t]he inductive method is as subjective, unpredictable and prone to law creation by the Court as the deductive method.”Footnote 160 To be sure, the ICJ's choice of a particular method is not deployed to reach predetermined end results.Footnote 161 But the problem is that the inductive and deductive reasoning used reflects western state practice and western vision of international legal order respectively. It means that while the ICJ does not formally distinguish between “traditional custom” identified through an inductive process and “modern custom” derived by a deductive process,Footnote 162 it often does so in practice. It does so using western understandings of what is good for the international community.
To sum up, in view of the numerous problems and obstacles in considering the state practice of third world nations, it may be asked with Kadens and Young as to “whether a legal theory designed for one type of society [i.e., European society] can appropriately be translated to a markedly different context.”Footnote 163 One cannot but agree with them when they argue that while “[w]ithin a small and close-knit community, a form of customary law derived from the community's sense of justice may be accepted as legitimate” this may not hold true when “we extend the sphere of that law's application to the international ‘community’ at large” as it may not possess “shared values or a broader sense of reciprocity.”Footnote 164 The experience has been that the factors of power and interest have shaped CIL more than the existence of a sense of community. The idea of an “international community” is as yet “a juridical fiction.”Footnote 165 In such a situation the separation of “formal” from “material” sources of CIL has meant that a regional legal theory shaped in the west continues to be applied as a universal theory of CIL. The sense of justice that prevails is best termed global capitalist justice, with much concern for the interests of advanced capitalist states and little consideration for third world states. However, can modern CIL with its progressive core help promote the goal of justice to third world states and peoples? Can it bring about system change and usher in a post-capitalist global society? Can it overcome the barrier of differential distribution of power?
V. Modern CIL: Role of First World Ideas, Beliefs, and Systemic Interests
For their part, Goldsmith and Posner readily concede that “[t]he content of CIL seems to track the interests of powerful nations.”Footnote 166 According to them, some of what is called CIL is better thought of as arising from “coercion, where a powerful state (or coalition of states with convergent interests) forces or threatens to force other states to engage in acts that they would not do in the absence of such force.”Footnote 167 Goldsmith and Posner conclude that a careful reading of the historical record reveals that most instances of supposed cooperation or law-like behavior “are best explained as coincidence of interest or successful coercion.”Footnote 168 In fact, as Oscar Shachter has observed, “[a]s a historical fact, the great body of customary international law was made by remarkably few States.”Footnote 169 Thus, for instance, in the nineteenth century, the U.K. shaped law of the sea and the law of prize almost singlehandedly.Footnote 170
Yet it would be a mistake to believe that power is the only relevant factor in the emergence of CIL. The role of ideas and beliefs is significant. According to Byers, “[l]ike all institutions and the international system itself, the process of customary international law is nothing but a set of ideas, no matter how tangible the consequences of those ideas may be.”Footnote 171 Similarly, Guzman speaks of CIL simply as a set of beliefs.Footnote 172 These ideas and beliefs have historically been those of advanced capitalist states that have dominated and controlled the workings of the international system.Footnote 173 It was seen in the discussion of colonial origins of CIL that ideas and beliefs help naturalize and validate particular assumptions and preferences that are eventually encapsulated in CIL. Their role is critical today, for unlike in the nineteenth century when the U.K. could do so, even a superpower like the United States alone cannot give rise to CIL.Footnote 174 A CIL norm is more likely to emerge when there is a coalition of powerful states with “convergent interests” manifesting relevant state practice. This generally happens when states at similar levels of development, such as the advanced capitalist nations, pursue common goals. But in a greatly expanded community of states in the postcolonial era even a handful of powerful states cannot create CIL. They have to convince other states to accept a particular norm as being of value in realizing common interests.Footnote 175 For a CIL rule to emerge, it has to be voluntarily accepted by a majority of states, or at least not be actively opposed by them. While the element of power plays an important role in this process, it is also a function of the dominance or hegemony of certain ideas and beliefs. These can sometimes come to be rapidly entrenched, giving rise to “instant” CIL.Footnote 176 It is only a combination of power and dominant or hegemonic ideas and beliefs that carry the day.
In the instance of short-term interests, it is perhaps more accurate and analytically useful to use the word “dominance” of certain ideas and beliefs as these may not be the subject of an overlapping consensus in the community of states and global civil society. The dominance of ideas and beliefs comes about when it is backed by powerful social forces and organizations including states, international institutions, international tribunals, and academia even as it is contested by subaltern social forces and states. But dominant ideas and beliefs deliver results when they are also accepted by collaborating social forces and ruling governments in the third world.
In the case of ideas and beliefs that support the long-term interests of advanced capitalist nations, they can be termed “hegemonic” as they reflect a widespread consensus in both the international community of states and global civil society on their serving the global common good. The notion of “hegemony” used here is that advanced by Antonio Gramsci and extended to the sphere of international relations by Robert Cox. It is the idea that powerful social forces and states do not sustain their domination in the international system through the exclusive use of power but also through the force of ideas and beliefs that come to be internalized by the subjects of domination.Footnote 177 In this respect, Ugo Mattei helpfully distinguishes between two distinct situations of domination through law. First, there is “law as dominance without hegemony, in which the legal system is ultimately a coercive apparatus asserting political and economic power without consent.”Footnote 178 As he notes, “[t]his area of inquiry and this model have been used to explain the relationship between the legal system of the motherland and that of the colonies within imperialistic colonial enterprises.”Footnote 179 The idea of “law as dominance without hegemony” can also be extended to the neocolonial era.
A second situation is that of consensual voluntary reception by an admiring periphery of legal models developed and provided for at the center. “It is described by stressing on the idea of consent within a notion of ‘prestige.’”Footnote 180 In this instance, legal rules are internalized through a process of socialization. This process of socialization is different at the international level from that within a nation state where institutions like the family and school play a significant role in (re)producing consensus on social norms. In the international sphere, such consensus is achieved through the socialization of agents of the states and the global civil society into particular understandings of world order—especially that of the role of capital in promoting the global common good, a particular technology of international law, and modern diplomacy. The universities of advanced capitalist states and the experts of international organizations play an important role as they actively participate in knowledge production and dissemination of hegemonic ideology.Footnote 181 It is no accident that “[t]he key proposition stressed by ‘modern custom’ is that opinio juris alone formulates the foundational source of customary international law.”Footnote 182 The reason is that “modern” CIL is more reliant on consensual ideas and beliefs than on the density of state practice for its concretization.Footnote 183 The proponents of “modern” CIL perceptively recognize that in periods of rapid transformation the traditional mode of CIL formation may not serve the end of swiftly filling gaps in the international legal system. The dynamic concept of “modern CIL” ensures that even in the absence of state practice, CIL can emerge.
But while the distinction between dominance without hegemony and consensual acceptance of rules is helpful, Mattei fails to envisage intermediate situations in which power and ideas and beliefs combine in different degrees to produce CIL. The concepts of “domination” and “hegemony” need not have a binary construction. Thus, the concept of “dominance without hegemony” tends to underplay the role of prevailing ideas and beliefs in the creation of CIL, even as these admittedly may not have achieved larger consensus in the international community. On the other hand, the idea of “hegemony” tends to entirely exclude the role of power in explaining the acceptance of CIL rules in the postcolonial period. There is a vast intermediate space that can encompass different combinations of power and ideas and beliefs. To put it differently, power and ideas and beliefs always combine to produce CIL but in some cases power is the central factor and in other instances the voluntary acceptance of certain ideas and beliefs. The former instance is presently illustrated with reference to the emergence of FET principle as CIL.
Power and Dominance: The Case of the FET Principle
The FET principle is said to be at the heart of the international investment regime.Footnote 184 While the power of capital and capitalist states has played a critical role in making FET a principle of CIL, the role of ideas and beliefs is no less crucial. These pertain to the construction of a historical narrative that underlines the role of capitalism in promoting global welfare. The ideas and beliefs that inform this account gathered momentum at the end of the Cold War that created a climate in which there was no serious challenge to the view that foreign investment was critical to advancing the growth and development prospects of third world nations. This resulted in swift developments in international economic law to facilitate an accelerated neoliberal globalization process. IIL in particular saw rapid developments. A key role was played in this regard by institutions like the World Bank that came out in 1993 with the World Bank Guidelines on the Treatment of Foreign Direct Investment.Footnote 185 These Guidelines were followed in 1995 by the Agreements on Trade Related Investment Measures and General Agreement on Trade in Services that were part of the WTO set of agreements.Footnote 186 Additionally, there were Bilateral Investment Treaties (BITs), the numbers of which increased rapidly after the end of the Cold War. According to the UN Conference on Trade and Development (UNCTAD), “the number of treaties quintupled” between 1990 and 2000, rising from 385 at the end of the 1980s to 1,857 at the end of the 1990s. The number of countries involved in bilateral investment treaties reached 173.Footnote 187 These formal initiatives were backed by norms of CIL that were created and given shape by international tribunals and a burgeoning scholarship on IIL.
Thus, for instance, the FET principle was given historical depth by tracing it back to the early twentieth century. But as has been rightly pointed out, “[t]he consistent practice of multilateral treaties and international organizations up to the Havana Charter of the abortive International Trade Organization (ITO) reveals that states did not view the obligation to provide fair and equitable treatment as deriving from customary international law.”Footnote 188 In fact international tribunals “have adapted the history of fair and equitable treatment to suit their purpose.”Footnote 189 Efforts have even been made to trace the FET principle to the minimum standard of treatment of aliens (MST) and even describe it as a version of it so as to be able to establish its CIL status. The imagined history of the FET principle is an important methodological move to give it a telling past in the matrix of a sanguine understanding of the role of capital after the collapse of “actually existing socialism.” As a result, “tribunals … overstate the protections afforded to investors under customary international law and ignore the historical development of fair and equitable legal concept independent of the customary minimum standard for treatment of aliens.”Footnote 190 But as José E. Alvarez has noted, “[w]hile references to ‘fair and equitable treatment’ date back centuries, that guarantee did not receive sustained attention from adjudicators until investor-state claims began being heard in significant numbers starting in the late 1990s.”Footnote 191 According to Muthuswamy Sornarajah, “[u]ntil NAFTA, despite the fact that the phrase has been used in a large number of treaties, it had not been analyzed by any tribunal because it was not made the basis of any claim.”Footnote 192 At that point in time, it was doubtful whether, based on a consideration of state practice, FET standard was CIL.Footnote 193 While Article 11(1)(b) of the ITO Charter did speak of promotion of international agreements “to assure just and equitable treatment” for foreign investors, it did not come into existence.Footnote 194 Since then the meaning of just and equitable treatment was actively contested by postcolonial states in the sixties and seventies, as reflected in texts like the Charter of Economic Rights and Duties of States (CERDS). It therefore does not come as a surprise that “[t]o date, no legal or empirical study has shown that customary international law imposes an obligation to treat investors fairly and equitably.”Footnote 195 This is not merely an issue of academic interest for in several recent cases under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID), claimants have argued that CIL “supports a self-standing claim brought in parallel to a claim under an investment treaty or a contract. If such claims are permissible, customary international law might have a more prominent role to play in ICSID disputes.”Footnote 196 This has serious implications for third world nations like India whose latest Model BITs make no reference to the FET principle.Footnote 197 It can now be smuggled in as a CIL principle and made the basis of claims before international tribunals. The awards can in turn be used to reinforce the claim of CIL. As Reisman points out, “[w]here there is a convergence of practice and opinio juris among a significant number of such tribunals, it may serve as evidence of customary international law.”Footnote 198 He goes on to elaborate the claim that:
in the context of customary international law in investment law, BITs and decisions of tribunals adjudicating the disputes arising from these investment treaties have come to play a significant role in the ongoing formation of law in this field. These two sources are particularly important … because much of international investment law is developed through them—they represent State practice and opinio juris in this area of the law.Footnote 199
Reisman concludes that “in the aggregate, the investment awards that apply FET and MST are a vital part of the nomo-dynamic process of customary international law.”Footnote 200 It is however doubtful whether BITs have given rise to such a principle. As Sornarajah has pointed out, the FET principle cannot have emerged as CIL from BITs, as they “are premised on different objectives, and the internal balance that is achieved between sovereign control over investments and the competing notion of the international standards from which there can be no deviation differ from treaty to treaty.”Footnote 201 What becomes clear from even this cursory discussion is that the FET principle has emerged as CIL even in the absence of sufficient state practice. It is a combination of the idea and belief that foreign investment is critical to help realize the goal of development, and the power of capitalist states which made possible the emergence of FET principle. International tribunals have at first claimed such a status for the principle and then used the very decisions as evidence of the emergence of CIL.Footnote 202
From a sociological standpoint, lifting the veil over states, the FET principle reflects a growing global class divide and the converging interests of an ascendant transnational capitalist class (TCC) of the developed and third world nations in the era of neoliberal globalization.Footnote 203 The TCC cuts across nations and creates a consensus in favor of the FET principle. It allows the category “national interests” to be used to represent TCC interests as the unitary will of the international community of states.Footnote 204 Carty therefore aptly speaks of the “the failure of legal positivism to accept the need for a political sociology of collective entities.”Footnote 205 It leads to the flattening of state practice that leaves out of contention the aspirations and actions of some classes, groups, and peoples.Footnote 206
Dominance, Hegemony, and Resistance
It is critical to note at this point that “domination” or even “hegemony” of ideas and beliefs does not mean that a monolith view comes to prevail in the international system. These categories only signal degrees of consensus that emerge on certain values and principles. There are always social forces and actors that offer resistance to any set of ideas and beliefs, albeit with different intensities.Footnote 207 But it is only when a system is in “crisis” or there is deep and sustained resistance, in the international sphere by states and forces of global civil society, that a counter-hegemonic view gains ground.
In the past, the two factors of crisis and resistance came together in the 1960s and 1970s, after the decolonization process with third world nations contesting the principles and norms of IIL. It was hoped that good arguments backed by a coalition of third world states and social movements would succeed in transforming CIL on the subject. But the failure of the developmental postcolonial state, and later the collapse of Soviet Union, saw these states accept the neoliberal economic path promoted by advanced capitalist nations. It undermined the effort for bringing about change in IIL.
Even thereafter the challenges to IIL did not cease, but they were not of an order that threatened the dominant view. Take, for instance, the principle of prompt, adequate and effective compensation that dates back to the period prior to World War II. It was effectively challenged by the third world nations in the first decades after decolonization and an “appropriate compensation” rule incorporated in the PSNR resolution.Footnote 208 Later a more radical version of the “appropriate compensation” rule was included in CERDS in 1974.Footnote 209 In its wake, Oscar Schachter wrote a decade later that “[t]he argument that the ‘prompt, adequate, and effective’ formula is ‘traditional’ international law finds little support in state practice or authoritative treatises and monographs.”Footnote 210 In 1995, Ian Brownlie contended that:
[T]here is strong evidence in support of the conclusion that the adoption of resolution 1803 [on permanent sovereignty over natural resources] indicated that the principle of compensation was no longer based upon the “adequate, effective and prompt” formula of Cordell Hull, but upon the principle of “appropriate compensation.”Footnote 211
But the modified rule of compensation was reversed by capital exporting nations after the end of the Cold War. At this time, third world nations, under the influence of an emerging TCC, had also become enamored by neoliberal economic ideology, leading to a desperate search for foreign investment to shore up their growth prospects.Footnote 212 In fact, developing nations proceeded to sign a large number of BITs promising to pay, whatever the actual phraseology used, the Hull formula. In 2004, Judge Schwebel could confidently observe:
Customary international law governing the treatment of foreign investment has been reshaped to embody the principles of law found in more than two thousand concordant bilateral investment treaties. With the conclusion of such a cascade of parallel treaties, the international community has vaulted over the traditional divide between capital-exporting and capital-importing states and fashioned an essentially unified law of foreign investment.Footnote 213
In this period, the FET and full protection and security (FPS) principles also congealed as CIL to address the concerns of foreign investors.Footnote 214 The inherent element of indeterminacy in unwritten rules was used by international tribunals to advance interpretations that favored foreign investors.Footnote 215 These principles also came to be embodied in BITs that helped consolidate their CIL status.
Arguably a crisis informs the global capitalist system today, especially since 2007, opening up the possibility of transformation in the doctrines and substance of international law.Footnote 216 A post-capitalist, counter-hegemonic view may therefore gain ground in IIL.Footnote 217 Unfortunately, despite the recent global economic crisis, the sanguine narrative of the role of capital, assiduously built after the end of the Cold War, has not come to be challenged. It has left the field open for organic scholars of TCC and international tribunals to advance unchallenged the FET principle as part of CIL. There are of course some voices of dissent. Thus, for instance, according to Sornarajah, “the notion that a customary body of [international investment] law has emerged is illusory.”Footnote 218 In his view, until the moment developing nations collectively renege from the position assumed in New International Economic Order (NIEO) and CERDS resolutions, “there can be no truly international standard relating to the treatment of foreign investment.”Footnote 219 But the factor of dominance ensured that capital importing nations do not seriously challenge the “new” rules of IIL. In short, the FET principle was invented and quickly termed CIL in the matrix of the hegemony of neoliberal ideas. This does not mean that the element of power did not come into play.Footnote 220 It is in fact a combination of consensual and coercive socialization, the latter rooted in structures of global economy that lead to the creation of CIL.
To sum up, CIL can be better accounted for by differentiating short-term and systemic interests of global capitalism safeguarded by CIL; by reviewing its evolution and development in different phases of history; and finally, by introducing the concepts of “dominance” and “hegemony” of ideas and beliefs that accompany the use of power. It can also help explain the fresh conceptualization of the doctrine of CIL in different phases of the development of the global capitalist order. Thus, for instance “modern” CIL emerges in the era of neoliberal globalization and relies more on the element of opinio juris than on state practice to address its systemic interests.Footnote 221 It has therefore more of an ethical than a practical orientation.Footnote 222 It explains why “modern” CIL does not face strong resistance from third world states. But modern CIL has limited potential in bringing about structural changes in the global capitalist order. If that conclusion is correct, can a postmodern doctrine be articulated which can coopt the progressive elements of modern CIL to facilitate the emergence of a post-capitalist global order? What are the elements that may constitute a postmodern doctrine of CIL? These questions are briefly addressed in the next section.
VI. Toward a Postmodern Doctrine
In considering the value and limits of the role modern CIL can play in the contemporary world, it may help to revisit its origins in the matrix of the idea of system change. When fundamental changes take place in the international system, as was the case after decolonization, new rules of CIL emerge to safeguard systemic interests.Footnote 223 In an essay on the Grotian moment and CIL, Scharf even defines system change “to denote a transformative development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance.”Footnote 224 In other words, system change necessitates the reconceptualization of the doctrine of CIL in order to facilitate changes in the body of international law. The new concept need not necessarily replace the old doctrine, but may complement it; while a new doctrine does not lead changes in the international system, it can help bring about modifications that lend it stability and legitimacy. The essence of those changes depends on the nature of world order and the systemic transformation that has taken place. But if suitably conceptualized, an innovative concept of CIL can inject progressive ideas and elements into the international legal order. Thus, for instance, the inauguration of the era of neoliberal globalization saw new thinking on CIL. It gave rise to the concept of modern CIL which, to recall, “represents a fundamentally different ontology of international law—one that is discursive rather than behavioral in orientation.”Footnote 225 Innovative conceptualization of CIL helped the development of international law, especially in the areas of human rights and environmental law, that gave the global capitalist system a human face at a time of aggressive exploitation of subaltern classes, nations, and nature so that this reality did not undermine its stability and legitimacy.Footnote 226
But can modern CIL, given its progressive core, bring about fundamental changes in the international system? Can its emphasis on opinio juris advance humankind toward a post-capitalist order that is more humane and respectful of nature? Since modern CIL essentially defends systemic interests, it may at first glance appear to be inimical to the interests of advanced capitalist states, making transformation to a post-capitalist world order possible. But its promise is never fulfilled as it runs up against the structures and processes, and ideas and beliefs, of the global capitalist system that promote the good of dominant social and political forces as against their subaltern counterparts. Thus, for instance, international human rights law harbors great potential to promote the goal of human dignity for all, but its potential remains unrealized because of the constraints imposed by the functioning of an international economic system that systematically produces inequality and oppression.Footnote 227 From time to time it is also used to inflict violence on subaltern actors, such as through justifying unilateral armed humanitarian interventions.Footnote 228 In other words, the fact that modern CIL prevents the legitimacy of the global capitalist order from being undermined does not mean it can make system change possible. A fundamental reason, of course, is that while CIL performs a constitutive role in international society, it is not the primary determinant of change. If this hypothesis is correct, then even a new and more radical doctrine of CIL cannot transform the extant world order. But a new doctrine, a postmodern doctrine if you like, could help introduce important reforms in the international legal order. While a full account of an alternative doctrine would have to await another essay, some elements of it can be indicated.
Stress on Deliberative Reason
A postmodern doctrine of CIL would require that norm formation is based on deliberative reason and not simply derived from the fact of coordination between states in the matrix of dominant or hegemonic views of advanced capitalist states. It would entail a principle that would reflect
forms of reciprocally oriented conduct that takes its meaning from a practice of offering claims and counterclaims, challenges and responses. The hallmark of such customs is not the addition of belief (opinio juris) to behavior (usus), but rather the integration of meaningful conduct into a web of reasons and arguments.Footnote 229
A defining feature of postmodern doctrine would therefore be to deepen the role of the discursive element in CIL formation. The formation of CIL would rest on the force of better argument or sounder claims advanced by state and non-state actors.Footnote 230 The acceptance of the rules of deliberative reason will help identify, clarify, and realize common interests. It will permit the international community to undertake reforms at least in those areas in which common interests are predominant, such as extreme poverty, gross violation of human rights, forced migration, environmental degradation, and possession, threat, or use of nuclear weapons. Of course, the simplicity of the idea that reason should prevail veils the complexities of international politics and the realities of power: in the real world, power and dominant/hegemonic ideas and beliefs tend to carry the day. The stress on deliberative reason is to be seen as a procedural ideal. In operative terms, a postmodern doctrine of CIL would have a negative and a positive dimension. On the negative side, it would be skeptical of claims unless a predominant majority of weak states, non-state actors, and, more broadly, the global civil society, acknowledge that status. On the positive side, it would allow greater weight to the practice of non-state actors to determine the status of a norm as CIL. The postmodern doctrine will also give the practice of specially affected states a broader meaning to include the interests of both rule makers and rule takers, as the latter are also specially affected.Footnote 231
Opinio Juris as Universal Juridical Conscience
The stress on deliberative reasoning would also allow a distinction to be made between opinio juris as a constituent element of CIL and opinio juris as representing the juridical conscience of humankind. This distinction has been recently elaborated by Judge Cançado Trindade in his dissenting opinion in the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) case.Footnote 232 In this case, Judge Cançado Trindade favored CIL status for Article VI disarmament obligations of the Nuclear Non-Proliferation Treaty as it was in accord with the juridical conscience of mankind.Footnote 233 More specifically, he contended that there is a clearly formed “opinio juris communis as to the illegality and prohibition of nuclear weapons” and observed that “[t]he survival of humankind cannot be made to depend on the ‘will’ of a handful of privileged States. The universal juridical conscience stands well above the ‘will’ of individual States.”Footnote 234 Indeed, in his view, “it is the universal juridical conscience that is the ultimate material source of international law.”Footnote 235 What Judge Cançado Trindade is arguing here is that interests of humankind should trump the interests of nuclear weapon states. Where the very survival of humankind was in issue the doctrines of “specially affected states” or “persistent objector” would not apply. He attempted to root his standpoint in a particular interpretation of history and doctrine of CIL:
opinio juris has already had a long trajectory in legal thinking, being today endowed with a wide dimension. Thus, already in the XIXth century, the so-called “historical school” of legal thinking and jurisprudence (of F. K. von Savigny and G. F. Puchta) in reaction to the voluntarist conception, gradually discarded the “will” of the States by shifting attention to opinio juris, requiring practice to be an authentic expression of the “juridical conscience” of nations and peoples. With the passing of time, the acknowledgment of conscience standing above the “will” developed further, as a reaction against the reluctance of some States to abide by norms addressing matters of general or common interest of the international community.Footnote 236
Judge Cançado Trindade went on to distinguish between opinio juris as a constitutive element of CIL and as a critical element of the very idea of international law:
Opinio juris communis came thus to assume “a considerably broader dimension than that of the subjective element constitutive of custom.” Opinio juris became a key element in the formation itself of international law, a law of conscience. This diminished the unilateral influence of the most powerful States, fostering international law-making in fulfillment of the public interest and in pursuance of the common good of the international community as a whole.Footnote 237
Thereafter, he went to link opinio juris communis with certain UN General Assembly resolutions that have “a much wider dimension than the subjective element of custom”:
Opinio juris communis—to which U.N. General Assembly resolutions have contributed—has a much broader dimension than the subjective element of custom, being a key element in the formation of a law of conscience, so as to rid the world of the inhuman threat of nuclear weapons. …Footnote 238
He went on to observe:
The foundations of the international legal order came to be reckoned as independent from, and transcending, the “will” of individual States; opinio juris communis came to give expression to the “juridical conscience,” no longer only of nations and peoples— sustained in the past by the “historical school”—but of the international community as a whole, heading towards the universalization of international law.Footnote 239
Judge Cançado Trindade thus sought to go beyond the systemic interests of the existing international system to realize the common interests of humanity. In arriving at this conclusion, he squarely rejected the positivist method and observed:
If we look at conventional international law only, weapons of mass destruction (poisonous gases, biological and chemical weapons) have been outlawed; yet, nuclear weapons, far more destructive, have not been banned yet. This juridical absurdity nourishes the positivist myopia, or blindness, in inferring therefrom that there is no customary international obligation of nuclear disarmament. Positivists only have eyes for treaty law, for individual State consent, revolving in vicious circles, unable to see the pressing needs and aspirations of the international community as a whole, and to grasp the universality of contemporary international law—as envisaged by its “founding fathers,” already in the XVIth-XVIIth centuries—with its underlying fundamental principles.Footnote 240
This understanding is obviously not acceptable to mainstream international lawyers, especially in this instance, because the nuclear weapon states that are the specially affected states have also been persistent objectors. Most recently, the nuclear weapons states even refused to participate in the negotiations of the treaty prohibiting nuclear weapons.Footnote 241
While Judge Cançado Trindade's views represent a progressive departure from modern CIL, he failed to explicitly decolonize the concept of CIL. Secondly, he did not speak to the nature and character of global order that has to be reformed through a new understanding of CIL. Third, while he did refer to the contribution of resolutions of international organizations, he did not look at the role of global civil society in the formation of CIL. To put it differently, the distinction between opinio juris and juridical conscience of humankind must also be reframed and reconfigured to decolonize it and include the practices of both international organizations and global civil society if it is to serve the purpose of facilitating a post-capitalist global order.
Resolutions of International Organizations
A postmodern doctrine would treat qualifying resolutions of international organizations—those that are the outcome of extended negotiations, broad consensus, clear articulation, and subsequent affirmations—as prima facie yielding rules of CIL.Footnote 242 Whereas at present, ILC Draft Conclusion 12(1) of 2016 baldly states that “[a] resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.” Likewise, the ILA had concluded that while UN General Assembly resolutions “may in some instances constitute evidence of the existence customary international law; help to crystallize emerging customary law; or contribute to the formation of new customary law,” these as a general rule “do not ipso facto create new rules of customary law.”Footnote 243 These formulations, by speaking of resolutions being evidence of state practice, leave open the possibility of the formation of “modern” rules of CIL, which have the backing of opinio juris among powerful states. But the ILA provided for an exception to the general rule that resolutions of international organizations cannot create CIL in the following terms:
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.Footnote 244
This is a move in the right direction. However, the acceptance of a CIL rule should not merely be viewed as the function of voting patterns but also the outcome of deliberative reason. The resolutions that the ILA had in mind were presumably those like the Universal Declaration of Human Rights.Footnote 245 In practice, the exception as presently formulated may merely allow powerful states to create law through resolutions of international organizations.Footnote 246 In the case of third world states, unanimity may be difficult to achieve and the doctrines of specially affected states and the persistent objector rule will come into play.Footnote 247 A postmodern doctrine would therefore go further and look at the weight of resolutions through the prism of the global common good. Those resolutions that reflect opinio juris communis and further the goals of international human rights law and associated jurisprudence would be considered to have binding effect. In operative terms this would mean that in instances where a qualifying resolution is adopted by an overwhelming majority of votes, undue weight will not be attached to opposing votes if it furthers the cause of global justice.
Practice of Civil Society
A postmodern doctrine would also link CIL formation to progressive ideas, beliefs, and practices in the global civil society. Increasingly, non-governmental organizations (NGOs) have become agents of lawmaking in the international legal order.Footnote 248 But at present, the “practice” of civil society organizations is not counted to determine whether a rule of CIL has emerged. ILC Draft Conclusion 4(3) of 2016 states that the practice of actors other than states and international organizations “is not practice that contributes to the formation, or expression, of rules of customary international law.”Footnote 249 But there are commentators who stress the need to “explore the prospect of permitting transnational and non-governmental groups to have a legal voice in the creation of custom.”Footnote 250 Indeed, Reisman speaks of “the democratization of the contemporary customary international law process.”Footnote 251 In his view, the reason that this possibility is not considered by bodies like the ILC is because its “members are selected by governments and whose work is prepared for approval by governments.”Footnote 252 It therefore “continues to depict the makers of customary international law essentially as the governments of States.”Footnote 253 However, as Reisman points out, “many categories of non-State actors in the different social and economic zones of the complex archipelagos of contemporary international law now participate in shaping expectations and demands of right behaviour.”Footnote 254 He cites with approval Mahnoush Arsanjani who writes:
Many factors … have opened this process of international law-making and, in particular, expanded the role of the private sector, including non-governmental organizations, private corporate entities and religious groups; as a concomitant, these factors have also reduced the role of States.Footnote 255
Tasioulas also contends that we need to detach “opinio juris from necessary connection with state practice” and see that the practice of non-state actors “counts in the process of customary norm formation”:
[W]e can accommodate within the formal structures of international law creation a role for various non-state actors, such as international organizations (e.g. the UN General Assembly, the ICJ, the WTO, etc.), peoples (understood as collectivities conceptually distinct from states), non-governmental organizations (e.g. the International Committee of the Red Cross, Human Rights Watch, Amnesty International, etc.), and so on. … This promises to strengthen the legitimacy of international law not only by enhancing its capacity to achieve the ends of global justice, but also by doing so through a procedure that introduces an element of global democratic participation.Footnote 256
In other words, while the focus of Reisman is on the private corporate actor, the case he makes out can be extended to all non-state actors. Thus, for example, the views of trade unions and peasant organizations or the World Social Forum (WSF) could be taken into account in considering the emergence of norms of CIL. To put it differently, there is no reason why “state practice” cannot include the practice of social movements, especially relevant in assessing the assertion by a state of the persistent objector rule. Of course, the necessary evidence of practice of civil society actors will have to be appropriately identified, weighed, and assessed by international tribunals in determining the emergence of a norm of CIL. In this regard, the international law academia will have a crucial role to play.
In sum, a postmodern doctrine will allow a source of international law to be created that facilitates the creation of norms that help deal with common problems confronting humankind. It may not be able to bring about radical changes in the global capitalist order. For this it would have to be accompanied by the transformation of social relations in the advanced capitalist states on the basis of sustained resistance of subaltern actors at the domestic and global levels. But a more meaningful doctrine of CIL would help the international community to gradually work toward a more just world order.
The principal aim of the present article is to offer an alternative account of the historical evolution of CIL. It was argued that the doctrine of CIL originated in nineteenth century Europe in the period of the industrial revolution that saw the emergence of a shared legal consciousness and, in its second half, high imperialism. It was also the period in which the positivist method came to dominate the study of international law. Yet, at this point, the inextricable relationship between “formal” and “material” sources of CIL was transparent and undeniable as these developments had roots in the European cultural, social, and political order. The imperial order of the times meant that CIL played a key role in facilitating the colonial project—its rules in the field of state responsibility being a case in point.Footnote 257
The first serious challenge to the Eurocentric doctrine of CIL came after the October revolution. The Soviet Union expressed deep skepticism about CIL as a source of international law as it reflected the practices and opinio juris of the leading capitalist powers. Later, the traditional doctrine of CIL came to be actively questioned by the newly independent states advancing a justice critique. These states contended that the traditional doctrine was fashioned by the ideology, interests, and power of metropolitan states. The two critiques necessitated a fresh look at the doctrine of CIL in order to advance a more sustainable theory of CIL that reflected changed times.
A first generation of efforts of western scholars to reformulate the doctrine of CIL appeared in the 1960s and 1970s. These formulations posited a distinction between “formal” and “material” sources of CIL that was given its blessings by the ICJ in the North Sea Continental Shelf case. A principal objective of this distinction was to salvage the doctrine of CIL from its historical condition—of being associated with the colonial and neocolonial projects. Besides the fact that the doctrine of CIL was a western construct, its rules came to be derived from western state practice on which the dominant positivist method placed great stress. Even today the lack of the ready availability of state practice in the instance of postcolonial states means that western states carry the day. Any talk of generality of practice or representative practice in the formation of CIL by default became a reference to the practice of western states. The absence of writings of postcolonial scholars contesting the divide between “formal” and “material” sources of CIL further reduced the possibility of supporting the claims of third world states. But western scholars did not allow matters to rest there. The possibility that postcolonial states could use their numerical strength to give rise to a particular rule of CIL that advanced their interests (as in the case of creating a NIEO) led to the invention of the persistent objector rule to offer a possible escape route to western nations from being compelled to undertake obligations that were not in their interest. Defection was made possible only through producing evidence of objection over time. The persistent objector rule did not require deliberative reasons to be considered. There was thus no room for debating the justice of CIL rules.Footnote 258 But as has been pointed out, if “conscientious objection” is not permitted “then the parties are entitled to doubt the bona fides of those who insist on the customs as binding in the name of the community as a whole.”Footnote 259 On the flip side, a dominant majority of members of the community must be in a position to claim that certain practices that advance the global common good have given rise to norms of CIL.Footnote 260
A second generation of attempts to theorize CIL began as the Cold War neared its end and the neoliberal globalization process gathered momentum. The collapse of the Soviet Union and the diminished opposition of postcolonial states in this period saw the distinction between “formal” and “material” sources emphatically endorsed by ILA and later ILC. But this phase also saw the emergence of the idea of “modern” CIL with its inclusive understanding of “state practice” and greater stress on the element of opinio juris. The move permitted relatively rapid development in the fields of IIL, IHRL, IHL, ICL, and IENL and the greater use of CIL norms by domestic courts and international tribunals. The essential aim of the “modern” doctrine of CIL is the generation of norms that safeguard the systemic interests of the global capitalist system. These norms sought to make the international legal order responsive in the era of neoliberal globalization to the concerns of the subaltern states, peoples and groups on the one hand and ravaged nature on the other. But the idea of “modern” CIL has caused much anxiety among western realist scholars of international law who are conscious of its negative impact on the ability of advanced capitalist states to realize short-term interests. These scholars are concerned that given the growing internalization of “modern” CIL by domestic courts, the domestic and foreign policies of states may be unduly constrained. In voicing this anxiety, realist scholars like Bradley, Goldsmith, and Posner do not appreciate the salience of “modern” CIL in sustaining the stability and legitimacy of the global capitalist system in the long run.
The ILA and ILC have responded in different ways to the anxiety of realist critics. The ILA has been more sympathetic to the realist view and therefore emphasized the element of state practice in the formation of CIL, even as it has conceded that “where it can be shown that an opinio juris exists about a practice that will be sufficient.”Footnote 261 However, the ILC has given importance to both the elements, leaving room for the expedient invoking of either of them for the rapid development of CIL. From a third world perspective, both the ILA and ILC do not assign sufficient weight to the fact that the state practice of weak states is not easily available and that their opinio juris is trumped by the invented doctrines of “specially affected states” and “persistent objectors.” Meanwhile, if decision-makers and scholars of weak states are not vigorously contesting the idea of “modern” CIL it is because the rules embody hegemonic ideas and beliefs. The hegemony of ideas and beliefs is, among other things, the function of the growing coincidence of interests between the elites of the first and the third worlds brought about by the ascendance of a transnational capitalist class. It is not that “modern” CIL does not contribute to the global common good, but it does so in an inadequate manner. Its norms can also be turned against subaltern states and actors, as in the case of the doctrine of responsibility to protect. Of course, the role of ideas and beliefs is present even when power and coercion are used to give rise to a norm of CIL. But in such cases, there is more active resistance to them.
In conclusion, it was asked whether a postmodern doctrine of CIL can be advanced to help promote the global common good and safeguard our common humanity. It was submitted that an alternative doctrine must have its roots in a decolonized, self-determined, and plural cultural and political international order in which deliberative reason plays a central role. A postmodern doctrine must therefore, to begin with, rest on the recognition that CIL has historically been an undemocratic source of international law.Footnote 262 Indeed, it has been shorthand for norms that accommodate the reality of imperialism. If the dark past of CIL is acknowledged, the distinction between formal and material sources of CIL, endorsed by the ICJ, ILA, and ILC, should be rejected as it veils the harm done to subaltern peoples and actors. A postmodern doctrine would also address the democratic deficit that characterizes the conceptualization and formation of CIL norms. The deficit flows from, among other things, the absence of availability of state practice of third world states, the paucity of writings of its publicists, the lack of adequate weight given to qualifying resolutions of international organizations, and the nonrecognition of the practices of the global civil society. A postmodern doctrine would also distinguish between opinio juris as a constituent element of CIL and opinio juris communis representing universal conscience in order to inject progressive content into the international legal order. In the final analysis, a postmodern doctrine would redefine the epistemology and ontology of CIL formation in order to help work toward a just world order. Such a doctrine can only be given life through the sustained effort of those social forces that are dissatisfied with the current global order. In this process, the role of critical theories of international law will be crucial as new doctrines are in the final analysis shaped by scholars of international law.