International organizations and customary international law.

AuthorWood, Michael
Position2014 Jonathan J. Charney Distinguished Lecture in Public International Law

It is a privilege to be invited to deliver this lecture in honor of Jonathan Charney.

Professor Charney was, of course, one of this country's most respected public international lawyers, both at home and abroad. Described as "one of the leading international legal scholars of his generation," (1) he was also an inspiring teacher. (2) Particularly relevant to my subject today, Charney had a special interest in the sources of international law, including customary international law and the role of international organizations. He was famously a persistent objector to the "persistent objector rule." He devised and coedited the invaluable International Maritime Boundaries series. This publication, now in its seventh volume and stretching over some 5,000 pages, is an essential resource for anyone dealing with maritime delimitation. He has written on Kosovo and on Antarctica. These are all matters that I have followed closely myself, and so I have a particular interest in his work.

My subject today is "International Organizations and Customary International Law"--that is, the role of international organizations in relation to the formation and determination of rules of customary international law.

Charney devoted a good part of his well-known article on "Universal International Law" to what he termed "contemporary international law-making." By that, he meant chiefly law-making within "international forums"--that is, within organs of international organizations and at international conferences. He starts the discussion from the somewhat heretical position that

[w]hile customary law is still created in the traditional way, that process has increasingly given way in recent years to a more structured method, especially in the case of important normative developments. Rather than state practice and opinio juris, multilateral forums often play a central role in the creation and shaping of contemporary international law. (3) Charney's conclusions, however, are perhaps not as radical as his premise. He acknowledged that "[s]ome may question the authority to legislate universally, even in the face of some dissent, because it appears to be inconsistent with the sovereignty and autonomy of states. Such apprehension is not unreasonable. The international legal system, however, will invoke this authority sparingly." (4)

It cannot be said that Charney's proposal for a dramatic change in the (secondary) rules of recognition has been widely accepted by states. It would indeed shift the process through which customary international law is formed from state practice to some kind of legislation by various unspecified fora, and who is to say that it would be "invoked sparingly." Nevertheless, like all of Charney's writings, this article offers much food for thought. He was ahead of his time. As we shall see, the multilateral activities he discussed could actually generate state practice and evidence opinio juris, the two elements widely accepted as the building blocks of customary international law, and, in that way, indeed play a significant role in creating (and expressing) rules of such law.

I shall first say a word about the background to the subject and why it is important (Part I). Then I shall look at what states do within the context of international organizations (Part II), and finally, before concluding, I shall consider whether international organizations as such may contribute to the formation and determination of customary international law and to what extent they are bound by it (Part III).

  1. INTRODUCTION

    As you know, public international lawyers devote an inordinate amount of time and effort to trying to explain the sources of the law that they claim to teach or practice. That is not the case in other fields of law, where the sources are more or less clear and not seriously questioned. It is widely accepted as a starting point--at least by practitioners--that the sources of public international law are those listed in Article 38 of the Statute of the International Court of Justice (ICJ). Of these, the two principal sources are treaties and customary international law.

    It has sometimes been suggested that the importance of customary international law is now greatly reduced as so much is regulated by treaty. Of course, treaties, where they apply, do tend to overshadow customary law. But even in a field like the law of the sea, where we have the 1982 United Nations Convention on the Law of the Sea (UNCLOS)--hundreds of pages long, the so-called "constitution for the oceans," with (as of now) 167 states parties--customary international law still applies in relations among nonparties (such as the United States) and between nonparties and parties. In its two most recent law of the sea cases, decided in 2012 and 2014, the International Court of Justice applied customary international law, since in each case one side (Colombia and Peru, respectively) was not a party to the Law of the Sea Convention. In a field like international human rights law, while there are a large number of detailed treaties, many of the most difficult issues that arise in practice, especially before the courts of states that are not party to many of the treaties, concern the existence and scope of customary international law. The same is true of the law of armed conflict, particularly noninternational armed conflict, but also for those states, like the United States, that are not parties to the 1977 Additional Protocols to the Geneva Conventions.

    Rules of customary international law may also fill gaps in treaties and assist in their interpretation. For example, the customary international law on the use of force (the jus ad bellum) helps to inform the UN Charter. A court may, moreover, seek to apply customary international law where treaty law cannot be applied because of limits on its jurisdiction or applicable law. Finally, customary international law is "the principal construction material for general international law" (in the sense of its capability to generally bind all states), (5) underlying the international legal structure as a whole.

    The international law relating to treaties--how they become binding, how they terminate, how they are to be interpreted, etc.--is well-trodden ground. The 1969 Vienna Convention on the Law of Treaties largely covers the field. By contrast, customary international law is often seen as shrouded in mystery and paradox, the subject of endless theorizing among academics. A couple of days ago I attended a conference at Duke University (with Professor Wuerth (6)), entitled "Custom in Crisis." I am not at all convinced that there is...

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