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The Concept of Special Custom in International Law

Published online by Cambridge University Press:  28 March 2017

Anthony A. D’Amato
Anthony A. D’Amato*
Affiliation:
Northwestern University School of Law, Chicago
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Extract

There are regrettably few cases in international law that go into the question of the proof necessary to establish a customary rule binding upon the defendant state. And from those few cases, notably those decided by the World Court, most writers have drawn pessimistic conclusions as to the proof needed for custom because of the Court’s apparent insistence, in Professor Palk’s words, upon “some tangible evidence of consent on the part of the state that is bound.” A showing of consent is a very difficult proposition. Many legal disputes arise precisely because neither side has previously consented to the same rule. As Lauterpacht argued, to say that prior consent must be shown in order to reach a legal conclusion in any given international dispute is tantamount to rejecting the possibility of the existence of the vast majority of the rules of international law. But then, how can we explain the World Court’s reasoning in the Asylum, Right of Passage, and Fisheries Cases in which the element of consent on the part of the defendant states seemed to play such a vital role in the Court’s reasoning concerning the existence of binding rules of law?

Type
Research Article
Information
American Journal of International Law , Volume 63 , Issue 2 , April 1969 , pp. 211 - 223
Copyright
Copyright © The American Society of International Law 1969

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References

1 Falk, “On the Quasi-Legislative Competence of the General Assembly,” 60 A.J.I.L. 782 (1966).

2 Lauterpacht, The Development of International Law by the International Court (1958).

3 Asylum Case, [1950] I.C.J. Rep. 266; Eight of Passage Case, [1960] ibid. 4; Fisheries Case, [1951] ibid. 116.

4 The Lotus Case, P.C.I.J., Ser. A, No. 10, at 4 (1927), cited by Professor Falk, note 1 above, at 784, to support his argument that the World Court relies even in cases of’ general custom on a showing of consent, does not, upon closer inspection, stand for that proposition. The Court in that case held that “the rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law … “ (at p. 18). Par from being a statement that each particular state must consent to each particular rule alleged to be binding upon it, this language indicates that the Court had in mind aggregate consent. It accords with Professor Jaffe's statement that “consent is given to international law as a system rather than to each and every relationship contained in it. “ Jaffe, Judicial Aspects of Foreign Relations 90 (1933). For evidence in the Lotus Case the Court did not look only to situations in which Turkey had consented to a rule of law, but rather considered four municipal law cases involving collisions (which were, as it happened, divided evenly on the relevant rule), none of which involved either Turkey or a Turkish vessel. This demonstrates that the Court was not looking for individual consent by Turkey to the rule alleged by France, the plaintiff state.

5 McDougal, Studies in World Public Order 15 (1960). The term “general” is more commonly used than the word “universal” and avoids the latter's complications arising from a single recalcitrant state or a self-declared international-outlaw state. Aa stated by Justice Chase in the classic case of Ware v. Hylton, “general” international law is “universal” and thus binding upon “all nations.” 3 Dall. 199, 227 (1796).

6 Lissitzyn, International Law Today and Tomorrow 7 (1965). There may also be sub-classes within the smaller groups; e.g., two states within a region may make a treaty applying only to themselves that derogates from the regional rule.

7 Salt, “The Local Ambit of a Custom,” in Cambridge Legal Essays 279, 283 (1926).

8 See Buekland, A Text-Book of Roman Law 52 (2nd ed., 1950); Jolowiez, Historical Introduction to the Study of Roman Law 363-364 (2nd ed., 1961).

9 Desuetude is the verbal opposite of consuetudo (custom). Cf. Kelsen, General Theory of Law and the State 119 (1945).

10 Blackstone, Commentaries *67.

11 Ibid, at *69-70.

12 An example of such a special custom is that of gavelkind in Kent, that all sons alike succeed to the father's estate. This is in derogation of the general customary rule of primogeniture. Ibid, at *74-75.

13 Ibid. at *76-78. See Braybrooke, “Custom as a Source of English Law,” 50 Mich. Law Rev. 71 (1951).

14 Salmond, Jurisprudence 264 (9th ed., 1937); Allen, Law in the Making 136 (3d ed., 1939). To the extent that Blackstone had a concept of opinio juris, he thought of it as part of the meaning of custom and not as an independent determinant of custom. The concept of opinio juris, however, has taken on a life of its own in international law, stemming largely from the misapplication of Geny's use of the term in his famous Mèthode d'interprétation et sources en droit priv6 positif §110 (1899).

15 [1951] I.C.J. Kep. 116, at 131.

16 Jenks, The Prospects of International Adjudication 237 (1964).

17 Ibid.

18 Ibid, at 261.

19 Ibid, at 263.

20 Ibid, at 264.

21 Briggs, , ‘ ‘ The Colombian-Peruvian Asylum Case and Proof of Customary International Law,” 45 A.J.I.L. 728, 730 (1951).Google Scholar

22 De “Visscher, Theory and Eeality in Public International Law 148 (1957).

23 [1950] I.C.J. Eep. 266, at 276-277.

24 Ibid. at 277.

25 Ibid. at 274-275.

26 Ibid. at 290-302.

27 [1952] I.C.J. Eep. 176, at 199-200.

28 Ibid. at 199.

29 2 Verzijl, The Jurisprudence of the “World Court 135 (1966).

30 [1950] I.C.J. Rep. 266, at 274-275.

31 Basdevant, “Règies generates du droit de la paix, “ 58 Hague Academy, Eecueil des Cours 471, 486 (1936).

32 [1960] I.C.J. Eep. 4, at 39

33 Ibid, at 40.

34 “Wolfke, Custom in Present International Law 90 (1964).

35 [1960] I.C.J. Eep. 4, at 43.

36 Ibid. at 44.

37 Douma, Bibliography of the International Court of Justice, including the Permament- Court, 1918-1964, at 203-207 (1966).

38 Hudson, “ T h e Thirtieth Tear of the “World Court,” 46 A.J.I.L. 1, 25-26 (1952).

39 See Jenks, op. cit. note 16 above, at 247-251.

40 See Waldock, “ T h e Anglo-Norwegian Fisheries Case,” 28 Brit. Tr. Bk. Int. Law 114 (1951).

41 [1951] I.C.J. Bep. 116, at 132.

42 Ibid , at 133.

43 Ibid

44 Ibid, at 140-141.

45 Hid. at 128.

46 Ibid, at 131.

47 Fitzmaurice, ‘ ‘ The Law and Procedure of the International Court of Justice, 1951-54: General Principles and Sources of Law,” 30 Brit. Yr. Bk. Int. Law 1, 39 (1953).

48 ibid , at 68-69.

49 [1951] I.C.J. Rep. 116, at 130

50 ibid, at 131.

51 Ibid, at 139. This language resembles a traditional test of estoppel in domestic law. For a recent doctoral dissertation contending that customary international law is nothing other than a form of estoppel, see Slouka, International Custom and the Continental Shelf (unpub. dissertation, Columbia TT., 1965). A difficulty with such a thesis is that international customary law itself in the final analysis gives content to the notion of estoppel in international law to the extent that the latter may be operative. Thus only a verbal substitution, that of “estoppel” for “custom,” is effected, but there is no gain in explication.

52 It is conceivable that a different plaintiff state might prevail against Norway on the same issues, as several writers have suggested; it is perhaps more likely that the Court's reasoning would not be extended to coastal situations involving future defendants other than Norway.

53 For an instance of special custom in a prescriptive setting, see the Minquiers and Ecrehos Case, [1953] I.C.J. Eep. 47. For a brief discussion of the Lotus Case, see note 4 above.

54 European Commission of the Danube, Advisory Opinion, P.C.I.J., Ser. B, No. 14, at 6 (1927).

55 Ibid. at 17.

56 Free City of Danzig, Advisory Opinion, P.C.I.J., Ser. B, No. 18, at 4, 12-13 (1930).

57 Special custom in Latin America seems to have its own rules. See Judge Alvarez’ dissenting opinion in the Asylum Case, [1950] I.C.J. Rep. 266, at 290-302. See also G. Cohen-Jonathan, “La coutume locale,” 7 Annuaire franÇais de droit int. 119 (1961).

58 See, e.g., North et aL, Content Analysis (1963).

59 See, e.g., Bummel, “Understanding Factor Analysis,” 11 J. Conflict Resolution 444 (1967); cf. D'Amato, “Psychological Constructs in Foreign Policy Prediction,” ibid, at 294.