controls the actions of states proceeds from the group of entities who are the law's primary subjects-that is, governments. Not only are the subjects of the law also the law makers; they are also the law enforcers. In the American system, in contrast, law proceeds either from specific basic documents(constitutions)or more commonly from the actions of relatively small groups of designated individuals, be they legislators, administrators, or judges, who have the legal capacity to constrain every one in society. Likewise, law enforcement is a specialized function carried out by a limited number of people A second difference between Cil and domestic law lies in the formality of the domestic law-making process. A legislature acts only when it is formally in session and according to the limitations of the relevant constitution and its own rules. Informal actions by legislators acting as individuals thus have no impact on the law -if, by coincidence, every member of a states legislature happened to be simultaneously exceeding the speed limit, no one would argue that the state's traffic laws had been altered CIL, however, is derived from the individual actions of governments, which actions may be undertaken in any type of setting and for reasons having little to do with the impact of those actions on international law. For example, when the U.S. Supreme Court upheld the constitutionality of sentencing a person to death for a crime committed prior to that persons seventeenth birthday, that action amounted to an instance of state practice which weakened any argument that Cil forbids governments to impose the death penalty for crimes committed when Standford v. Ky, 492 U.S. 361(1989
4 6 Standford v. Ky., 492 U.S. 361 (1989). controls the actions of states proceeds from the group of entities who are the law’s primary subjects - that is, governments. Not only are the subjects of the law also the law makers; they are also the law enforcers. In the American system, in contrast, law proceeds either from specific basic documents (constitutions) or more commonly from the actions of relatively small groups of designated individuals, be they legislators, administrators, or judges, who have the legal capacity to constrain every one in society. Likewise, law enforcement is a specialized function carried out by a limited number of people. A second difference between CIL and domestic law lies in the formality of the domestic law-making process. A legislature acts only when it is formally in session and according to the limitations of the relevant constitution and its own rules. Informal actions by legislators acting as individuals thus have no impact on the law - if, by coincidence, every member of a state’s legislature happened to be simultaneously exceeding the speed limit, no one would argue that the state’s traffic laws had been altered. CIL, however, is derived from the individual actions of governments, which actions may be undertaken in any type of setting and for reasons having little to do with the impact of those actions on international law. For example, when the U.S. Supreme Court upheld the constitutionality of sentencing a person to death for a crime committed prior to that person’s seventeenth birthday,6 that action amounted to an instance of state practice which weakened any argument that CIL forbids governments to impose the death penalty for crimes committed when
the perpetrator was as young as 16. However, nothing in the opinion of the Court suggested any concern with or even awareness of the impact of its decision on CIL. A third, and especially important, difference between CIL and domestic law in the United States is that violations of CIL may lead, not only to some form of legal sanction, but also to a change in the content of the law. Such a result is so contrary to that which would obtain under a domestic legal system that it requires careful explication. It must be stressed that this outcome is a necessary consequence of the way in which CiL is made in the first place. As pointed out above, CiL derives from the practice of states, even when that practice is not, in the first instance, undertaken because of its legal implications. Hence, any act by a government may simultaneously be analyzed under existing Cil and as what amounts to a legislative act. Thus, acts conforming to existing rules are not simply unremarkable instances of obedience to law they are examples of practice reinforcing that law. Similarly, acts contrary to existing law can be characterized as violations of that law but can also be seen as what amount to votes either to repeal"the existing rule, or to modify that rule in some way. To be sure, it is frequently asserted that violations of cil have no effect on the content of that law, just as domestic law is unaffected by acts violating it. Such assertions, however rely on a false analogy Private Both the opinion of the court and the dissent in Standford take note of the practice of other countries with respect to execution of juveniles, with the court characterizing such practice (Brennan. J, dissenting). Neither opinion, however, speaks in terms of Cll at 389-90 as irrelevant, id. at 369, n 1, and the dissent giving weight to that practice, id Professor D'Amato has also discussed this phenomenon, see Anthony D'Amato, The Concept of Human Rights in International Law, 82 COLUM. L REv. 1110(1982); Anthony D'Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 93-94(1971)(hereinafter cited as D'Amato, CONCEPT OF CUSTOM) Filartiga, supra n 4, at 884 n. 15: Louis Sohn, The International Law of Human Rights A Reply to Recent Criticism, 9 HOFSTRA L REV. 347, 350(1981)
5 7 Both the opinion of the court and the dissent in Standford take note of the practice of other countries with respect to execution of juveniles, with the court characterizing such practice as irrelevant, id. at 369, n.1, and the dissent giving weight to that practice, id. at 389-90 (Brennan, J., dissenting). Neither opinion, however, speaks in terms of CIL. 8 Professor D’Amato has also discussed this phenomenon, see Anthony D’Amato, The Concept of Human Rights in International Law, 82 COLUM. L. REV. 1110 (1982); Anthony D’Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 93-94 (1971) (hereinafter cited as D”Amato, CONCEPT OF CUSTOM). 9 Filartiga, supra n. 4, at 884 n. 15; Louis Sohn, The International Law of Human Rights: A Reply to Recent Criticism, 9 HOFSTRA L. REV. 347, 350 (1981). the perpetrator was as young as 16. However, nothing in the opinion of the Court suggested any concern with or even awareness of the impact of its decision on CIL.7 A third, and especially important, difference between CIL and domestic law in the United States is that violations of CIL may lead, not only to some form of legal sanction, but also to a change in the content of the law.8 Such a result is so contrary to that which would obtain under a domestic legal system that it requires careful explication. It must be stressed that this outcome is a necessary consequence of the way in which CIL is made in the first place. As pointed out above, CIL derives from the practice of states, even when that practice is not, in the first instance, undertaken because of its legal implications. Hence, any act by a government may simultaneously be analyzed under existing CIL and as what amounts to a legislative act. Thus, acts conforming to existing rules are not simply unremarkable instances of obedience to law; they are examples of practice reinforcing that law. Similarly, acts contrary to existing law can be characterized as violations of that law, but can also be seen as what amount to votes either to “repeal” the existing rule, or to modify that rule in some way. To be sure, it is frequently asserted that violations of CIL have no effect on the content of that law, just as domestic law is unaffected by acts violating it.9 Such assertions, however, rely on a false analogy. Private
persons violating domestic law do not act as legislators when they act; with regard to CIL, lowever, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law An example of this phenomenon is provided by the law of the sea. The 1958 Conventio on the High Seas described itself as codifying CIL. It defined the "high seas" as including all waters seaward of a states territorial sea, and guaranteed freedom of fishing to all states in this area. Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that Cil had been altered. That is, actions violating CIL(and, for that matter, a treaty) cumulated to change the law 3 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state? 10 Convention on the High Seas, opened for signature Apr 29, 1958, 13 UST2312 T. L.A.S. No 5200. 450 U.N.T.S. 82 nble 12 Id. arts. 1.2 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International La: The Problem of Treaties, 21 VAND. J INT'L L. 1 17-19.(1988)
6 10 Convention on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. 11 Id., preamble. 12 Id., arts. 1, 2. 13 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International Law: The Problem of Treaties, 21 VAND. J. INT’L L. 1, 17-19. (1988). persons violating domestic law do not act as legislators when they act; with regard to CIL, however, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law. An example of this phenomenon is provided by the law of the sea. The 1958 Convention on the High Seas10 described itself as codifying CIL.11 It defined the “high seas” as including all waters seaward of a state’s territorial sea, and guaranteed freedom of fishing to all states in this area.12 Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that CIL had been altered. That is, actions violating CIL (and, for that matter, a treaty) cumulated to change the law.13 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state?
I suggest that one way to address these issues is to ask why a customary practice ought to be law. That is, is there some non-arbitrary justification for ascribing binding effect to a general and consistent practice? Perhaps the most plausible answer to this question is Professor Starke's Recurrence of the. . practice tends to develop an expectation that, in similar future situations, the same conduct or the abstention therefrom will be repeated that the conduct or the abstention therefrom is a matter both of right ando ates When this expectation evolves further into a general acknowledgment by states obligation, the transition. . to custom may be regarded as consummated If, then, the rationale for treating custom as law is that states ought to be able to rely on the assumption that other states will behave in the future as they have in the past, it would seem to follow that behavior would count as practice if it is of a sort as would give rise to reasonable expectations that it would be followed in future similar situations. Further, if an act which would, other things equal, give rise to such expectations, is contradicted by behavior which is a better predictor of future action, it would seem that it would be unreasonable to expect that future conduct would conform to the act rather than to the contradictory behavior These considerations facilitate addressing a particularly important issue in connection with CIL: what effect on that body of law should be accorded to actions which may be seen as proxies for behavior? For example, suppose State A announces that it feels constrained by CiL to behave in accord with Rule X. Standing alone, that announcement may well support a reasonable expectation that State A will abide by rule X in the future, and should count as an item of practice supporting the existence of rule X. However, if it is clear that State a in fact systematically violates Rule x, it would seem that the net effect of State As actions is to 14 J.G. Starke, INTRODUCTION TO INTERNATIONAL LAW 38-39(10th ed 1989)
7 14 J.G. Starke, INTRODUCTION TO INTERNATIONAL LAW 38-39 (10th ed. 1989). I suggest that one way to address these issues is to ask why a customary practice ought to be law. That is, is there some non-arbitrary justification for ascribing binding effect to a general and consistent practice? Perhaps the most plausible answer to this question is Professor Starke’s: Recurrence of the . . . practice tends to develop an expectation that, in similar future situations, the same conduct or the abstention therefrom will be repeated. When this expectation evolves further into a general acknowledgment by states that the conduct or the abstention therefrom is a matter both of right and of obligation, the transition . . . to custom may be regarded as consummated.14 If, then, the rationale for treating custom as law is that states ought to be able to rely on the assumption that other states will behave in the future as they have in the past, it would seem to follow that behavior would count as practice if it is of a sort as would give rise to reasonable expectations that it would be followed in future similar situations. Further, if an act which would, other things equal, give rise to such expectations, is contradicted by behavior which is a better predictor of future action, it would seem that it would be unreasonable to expect that future conduct would conform to the act rather than to the contradictory behavior. These considerations facilitate addressing a particularly important issue in connection with CIL: what effect on that body of law should be accorded to actions which may be seen as proxies for behavior? For example, suppose State A announces that it feels constrained by CIL to behave in accord with Rule X. Standing alone, that announcement may well support a reasonable expectation that State A will abide by Rule X in the future, and should count as an item of practice supporting the existence of Rule X. However, if it is clear that State A in fact systematically violates Rule X, it would seem that the net effect of State A’s actions is to
undermine the rule. That is. if State A's policy is in fact to violate rule x. one could not reasonably expect it to conform to the rule simply because it made a dishonest statemen To be sure, the International Court of Justice(ICJ)in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v United States), (Nicaragua v United States" )stated that If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule 6 As will discussed below, the ICJ's assertions regarding legal principles in its judgments are not binding on states generally, but even if the quoted language is considered simply on its merits it is hard to defend. Why do hypocritical statements confirm a legal principle if the law-making process is one in which legal principles derive from conduct creating g reasonable expect Surely, if it is known that a given state says one thing but does another, it would hardly be reasonable to rely on what the states says when forming expectations Suppose, however, that the proxy for behavior is not simply a statement, but adherence a treaty requiring certain behavior -how should this affect CIL?(Of course, regardless of its status as CIL, a rule established in a treaty is binding on states parties to the treaty. The question here is whether such a rule's incl a treaty should count as practice establishing a CiL obligation). In fact, it has long been established that states often rely on treaties as evidence of 151986ICJ.14 la.at98,186 17 See, discussion infra at nn. 207-232
8 15 1986 I.C.J. 14. 16 Id. at 98, ¶ 186. 17 See, discussion infra at nn. 207-232. undermine the rule. That is, if State A’s policy is in fact to violate Rule X, one could not reasonably expect it to conform to the rule simply because it made a dishonest statement. To be sure, the International Court of Justice (ICJ) in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),15 (“Nicaragua v. United States”) stated that If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule.16 As will discussed below, the ICJ’s assertions regarding legal principles in its judgments are not binding on states generally,17 but even if the quoted language is considered simply on its merits, it is hard to defend. Why do hypocritical statements confirm a legal principle if the law-making process is one in which legal principles derive from conduct creating reasonable expectations? Surely, if it is known that a given state says one thing but does another, it would hardly be reasonable to rely on what the states says when forming expectations. Suppose, however, that the proxy for behavior is not simply a statement, but adherence to a treaty requiring certain behavior - how should this affect CIL? (Of course, regardless of its status as CIL, a rule established in a treaty is binding on states parties to the treaty. The question here is whether such a rule’s inclusion in a treaty should count as practice establishing a CIL obligation). In fact, it has long been established that states often rely on treaties as evidence of