This panel was convened at 2:45 pm, Friday, March 27, by its moderator, Dianne Otto of University of Melbourne School of Law, who introduced the panelists: Brian Lepard of the University of Nebraska College of Law; John Linarelli of the University of La Verne College of Law; Mary Ellen O'Connell of the University of Notre Dame Law School; and Andrew Strauss of Widener University School of Law.
TOWARDS A NORMATIVE THEORY OF CUSTOMARY INTERNATIONAL LAW AS LAW
Our panel has been asked to focus on various visions of international law articulated by normative theories. I would like to address the status of customary international law and sketch out a new normative theory concerning its authority. My views are elaborated in a forthcoming book. (1)
THE DEBATE ON THE LEGAL STATUS OF CUSTOMARY INTERNATIONAL LAW
All international lawyers are acutely conscious that outside the legal academy there are pervasive doubts that international law is really law. These doubts are especially severe in the case of customary international law both because it is often unwritten and because there is no centrally-organized regime of sanctions for violators. Indeed, in light of these lacunae, many political scientists believe that customary international law is merely a series of "regimes"--pragmatic patterns of cooperation that can serve the self-interests of states, but lacking any authority.
Some great legal philosophers have joined the doubters' chorus. In his celebrated book, The Concept of Law, H.L.A. Hart maintained that customary international law does not constitute a full-bodied legal system because it has no general "rule of recognition." (2) Even some international lawyers, such as Jack Goldsmith and Eric Posner, have lodged the skeptical allegation that customary norms do not exercise any "exogenous influence on state behavior" and thereby called into question their legal status)
INSIGHTS FROM THEORIES ABOUT THE NATURE OF AND JUSTIFICATIONS FOR AUTHORITY
How can we evaluate these challenges to the legal character of customary international law? I suggest, first, that we need to probe the very concept of legal authority. What does it mean to claim that a customary norm has authority over states? According to legal philosopher Joseph Raz, actors, including states, typically make decisions to act based on the' 'balance" of "first-order" reasons for performing, or not performing, an action. However, an authoritative norm preempts the independent decision-making of states and affects their "balancing" of these reasons by excluding some of them. This is what it means to accept an "obligation." (4) An authority claim furthermore relates to a particular "domain," such as a legal rather than a moral or political one.
It is also possible to distinguish among three forms of authority. Claimed authority is the authority claimed by an actor, such as a state or the U.N., on behalf of a norm. Empirical authority involves the actual acceptance of the authority of a norm by a state. And normative authority is the authority of a norm that ought to be recognized by a state according to some posited value system. These concepts help us differentiate authority from persuasion. Persuasion does not have preemptive effect. A persuasive argument instead changes a state's perception of the balance of first-order reasons. This is a completely voluntary process. At the other extreme, authority is also distinct from coercion. A coercive threat by itself does not claim to preempt an actor's balancing of reasons, but is rather intended to be an additional reason to take the action demanded. (5)
Despite these differences, persuasion does play a role in acceptance of authority. A state must be persuaded, for certain reasons, to accept the claimed authority of a norm--that is, to obey it. This acceptance is still a voluntary act, which creates what might be called a "paradox" of authority. At the same time, authority claims, including on behalf of international law, are often linked with a threat of sanctions. (6) This may be a precondition for a state accepting an authority claim. But that acceptance is still ultimately voluntary.
Normative theories make it their business to explain just what reasons states should accept for recognizing the claimed authority of international law norms. I will review just a few of these reasons here.
One reason advanced by certain theories is compliance of an authoritative norm with secondary rules--or, to use Hart's phrase, "rules of recognition." These are rules about how primary rules of law are formulated. They can include the traditional criteria for identifying customary international law--opinio juris and consistent state practice. Another reason is to facilitate collective action among states--for example, to solve coordination problems or to resolve a prisoner's dilemma. The availability of an effective sanctions regime to ensure that violators are punished is a further reason for obedience put forward by some theories. Others advocate membership of states in a global community of states that can establish rules for that community as a reason to accept the authority of those rules.
Traditional positivist theory, of course, allows that the only reason for states to obey a norm is that they have given their direct or indirect consent to it. Some theories maintain that international norms are legally authoritative if they constitute mutual promises, which morally must be honored. Others focus on the moral principle that expectations reasonably created by a state's behavior should not be disappointed. And a final set of theories maintain that international rules deserve obedience only if they promote substantive norms of ethics, such as peace or human rights.
FUNDAMENTAL ETHICAL PRINCIPLES AND A NEW NORMATIVE THEORY OF CUSTOMARY INTERNATIONAL LAW
To develop a normative theory of customary international law, we must be able to weigh and judge these potential reasons for accepting its authority. To do this, we need an ethical framework. I suggest that we look to international legal documents themselves, and an important ethical principle latent in them, to develop this framework. That principle is "unity in diversity." In short, it maintains that all individuals form part of a global human family that, ideally, should act in unity while treasuring human diversity. And it asserts as a corollary that individuals have the right to associate with one another in communities, and that states therefore have a degree of ethical legitimacy. It recognizes, in turn, the existence of a global community of states that has a moral obligation to serve the welfare of all members of the human family.
We find these ideas implicit in such documents as the Universal Declaration of Human Rights, which affirms "the equal and inalienable rights of all members of the human family." (7) At the same time, the U.N. Charter envisions a world-embracing community of states that morally should cooperate with one another. I suggest that a panoply of ethical principles, which I refer to as "fundamental ethical principles," can be identified based on two criteria: (1) they are logically related to the principle of unity in diversity, and (2) they are recognized by the community of states in contemporary international resolutions and treaties. They could be seen, in John Linarelli's terminology, as principles of justice "internal to international law itself."
CUSTOMARY INTERNATIONAL LAW AS LAW UNDER A NEW NORMATIVE THEORY
The ethical principle of unity in diversity implies, first and foremost, that membership of states in a globe-spanning community of states is the most important reason to recognize the authority of customary international law. Moreover, that community has developed secondary rules for creating norms to govern it, and among them are rules for identifying customary international law.
However, other reasons propounded by various normative theories also have a role to play. For example, customary norms can often facilitate coordination and the resolution of prisoner' s dilemmas that impede states' ability to maximize realization of their own self-interests. And in some cases, sanctions may be a proper condition for recognizing the authority of putative customary norms for example, where states reasonably perceive that they confront a prisoner's dilemma in which each state has an incentive to "cheat." In addition, customary law rules may be justified in certain cases based on promises, reasonable expectations, or the moral content of these rules as measured by fundamental ethical principles. But, according to this theory, explicit consent is less important as a reason to accept the authority of customary law.
The literature I have reviewed on the nature of authority also sheds light on the contentious problem of whether customary international law is really law. Above all, it indicates that even the traditional doctrine of customary law claims that rules of customary law have legal authority over all states, except persistent objectors. And this claim, in turn, is accepted by all states, none of which alleges that customary international law has no normative force.
Moreover, the claimed authority of customary international law is definitely legal--not just moral or political. Violations can be adjudicated by courts or arbitration panels. Of course, as I have just argued, its authority may well be supported by ethical principles. But states, and courts, properly draw a line between norms of customary law and purely moral norms.
The reasons I have outlined that support the authority of customary international law as law are also reasons that customary international law does not...