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Customary International Law: A Jurisprudential Analysis

Published online by Cambridge University Press:  12 February 2016

Raphael M. Walden
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In a previous paper it was argued that neither the tacit consent theory nor the opinio juris theory were by themselves capable of explaining the nature of customary international law, although each of them does indeed stress an important aspect—the tacit consent theory that custom is a lawmaking process, and the opinio juris theory that there must be some difference between customary law and practices which do not express, or do not give rise to law. What has to be done is to reformulate these approaches in such a way as to preserve the insights of each, while avoiding their errors.

A good starting point is the older tacit consent theories of the Civilians and Canonists, which were described in the previous paper. Their approach has the following characteristics:

i) By “consent” they mean, not contractual consent, but simply the intention to create law; therefore—

ii) they are able to admit that custom can bind individuals that have no part in its creation, even without their consent;

iii) they consider that the rules of customary law are binding absolutely, and not merely on a reciprocal basis; and

iv) finally, these jurists show an awareness of the fact that the conditions which regulate the formation of customary law are themselves rules of law, rather than necessary truths that can be deduced from the nature of custom.

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Articles
Information
Israel Law Review , Volume 13 , Issue 1 , January 1978 , pp. 86 - 102
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 Walden, , “The Subjective Element in the Formation of Customary International Law” (1977) 12 Is.L.R. 344.CrossRefGoogle Scholar

2 See, e.g., the theory of Suarez, ibid., at 345–6.

3 The word “consent” is in fact used with several meanings which should not be confused. (1) The contractual sense: an intention to create obligations binding on a basis of reciprocity. (2) The intention to create obligations generally (this usage is perhaps something of a solecism). (3) Willingness to be bound by rules already created. (4) Acquiescence in claims put forward by others.

4 The distinction between primary and secondary rules is that drawn by Hart, in The Concept of Law (Oxford, 1961).Google ScholarD'Amato, , in Concept of Custom in International Law (Ithaca, N.Y., Cornell U.P., 1971)Google Scholar refers to custom as a secondary rule (at 41–44). This is misleading. Custom itself is not a secondary rule, but there are secondary rules involved in the formation of custom.

5 Hart, op. cit., at 89ff.

6 The concept of an “internal attitude” is discussed infra part 5.

7 These four conditions are a brief summary of Hart's account of the conditions for the existence of a social primary rule (op. cit., at 54–55).

8 Hart, op. cit., at 92.

9 This phrase suggests recognition by Hart of the fact that in developed legal systems the formation of custom involves secondary as well as primary rules; but he does not develop this point.

10 Hart, op. cit., at 92.

11 Ibid., at 94.

12 Gluckman, Max, The Judicial Process among the Barotse of Northern Rhodesia (1955) 238ff.Google Scholar

13 Hart, op. cit., at 228–229.

14 See text, supra at p. 88.

15 Kelsen, , Principles of International Law (2nd ed., 1967) 441.Google Scholar

16 McDougal, , The Hydrogen Bomb Tests and the International Law of the Sea (1955) 49 A., p. 336.Google Scholar

17 MacGibbon, , “Customary International Law and Acquiescence” (1957) B.Y.I.L.Google Scholar

18 These terms are defined in Oppenheim-Lauterpacht, , International Law (8th ed., 1955) vol. 1, pp. 26, 33–35Google Scholar.

19 See supra at n. 6.

20 Hart, Concept of Law, 9–10. It is interesting to note that a very similar distinction to that made by Hart between habitual and rule-guided behaviour was made by Suarez in his distinction between “custom of law” and “custom of fact”. Suarez, , De Legibus ac Deo Legislatore (Classics of International Law trans.) 444–445Google Scholar: “…we must distinguish two elements in custom. The one is frequency of actions, as such, which we may call formal custom. This, as we have said, is a matter of fact, as usage is. The other is an after-effect of the repeated acts. This after-effect may be physical, as habit, which is not infrequently called custom but somewhat improperly by jurists, since it has reference to custom as fact. We shall, therefore, include it under the first head. A second after-effect may be one of the moral order, after the manner of a power or law binding to such action, or nullifying another obligation. This may be called consuetudinary law or a legal rule introduced by custom.“

21 Hart, Concept of Law 55–56.

22 A similar point has been made by Thirlway, H.W.A., International Customary Law and Codification 55Google Scholar: “If a State considers—rightly or wrongly—either that an existing rule of law requires it to act in a certain way, or that a particular course of action is of such a kind that its recognition as in accordance with law, de lege ferenda, would be socially desirable, then this is sufficient (if the view is or becomes general) to distinguish the emerging legal rule from the usage, or potential usage, of courtesy or convenience.“

23 Cf. Williams', Fischer well known remark in Some Aspects of International Law (1939) 44Google Scholar: “The Rubicon which divides custom from law is crossed silently, unconsciously, and without proclamation.“

24 See (1977) 12 Is.L.R. 344 at 363.

25 This transition is recognised by Suarez, who, as we have seen, devotes most of his analysis of custom to the process of its formation, but, in one passage, when speaking of custom as already formed, writes: “if the custom is of long standing and has to do with matters onerous and difficult, and if, finally, the custom is observed by the major part of the people—since the people do not commonly agree in the performance of acts of this sort save when they feel an obligation to do so—we have sound evidence that the people are led (to act as they do) from a sense of obligation that is already established or is being established by it.” The analogy with the traditional account of opinio juris is plain, but Suarez does not make the mistake of expecting this attitude to be present when custom is in the process of formation.

26 D'Amato, , The Concept of Custom in International Law 74.Google Scholar

27 Ibid., at 85.

28 Ibid., at 85–86.

29 MacGibbon, , “Customary International Law and Acquiescence” (1957) B.Y.I.L.Google Scholar

30 Ibid., at 127.

31 Insofar as a customary rule exists or has existed recognising subjugation as a title, this would be an example of a secondary customary rule conferring a power to create rights by conduct unaccompanied by any opinio juris. The present discussion would therefore not apply to it.