Murase Comments on Customary International Law at ILC
Note: I made comments on the topic of customary international law six times over the years at ILC, which are reproduced below. These are the original manuscripts. They are reproduced in the ILC summary records, which are however shortened versions of the original statements. I often had to repeat what I had said in previous years, and therefore some parts are repetitious. Footnotes had to be inserted in the body of the text for technical reasons of the blog.
1. Formation and Evidence of Customary International Law (12 July 2012) (A/CN.4/3148, Yearbook of the ILC, 2012, Vol. I, p. 137, paras. 18-30)
1. I would like to thank Special Rapporteur, Mr. Wood, for the Note (A/CN.4/653), but frankly, I have some serious doubts about this topic, on which I discussed at the Working Group on the Long-term Program of Work since 2009. I also regret that during this session of the ILC, we have been unable to discuss matters beyond those that were previously in the syllabus, since this is such an important topic of international law with many additional aspects which would benefit from an in-depth analysis and discussion.
2. It has been the major part of the work of the Commission to consider whether a certain specific rule is established as customary international law, but always on the basis of specificity. We discuss whether the principle aut dedere aut judicare is established as a customary law; we could determine whether the “territorial tort exception” to State immunity is now a customary law, which was the issue before ICJ in the recent Jurisdictional Immunities case between Germany and Italy. Because we focus on a specific rule, we can consider the problem fruitfully. It is impractical, if not impossible, to consider, by departing from such specificity, the whole of customary international law even on a very abstract level.
3. I am quite critical of this issue as a result of my participation on the ILA Committee on the “Formation of Customary International Law,” which lasted for 15 years between 1985 and 2000. As indicated in para. 13, Mr. Wood appears to take a broad normative statement as a model for his project. I have cautioned that it is doomed to fail, because, at the end of the day, we will end up either stating the obvious or stating the ambiguous.
4. If you look at the ILA London Statement, you will notice, in almost every guideline, there is a saving clause or a contingent clause, saying: “as the case may be” (1, iii), “unless the context otherwise requires” (2, ii, iv), “in appropriate circumstances”(2, v; 6), “according to the circumstances” (9), “in certain circumstances” (17), “in theory” (17, ii), “if there is a positive evidence” (17, iv), “it is not generally necessary to prove” (18), “it appears” (19), “it is a question in each case of examining the evidence” (21), “in exceptional cases, it may be possible” (27), “in some instances” (28), “can, but do not necessarily constitute” (30), and “in appropriate cases” (31). This is because we can hardly agree on, or we have serious concerns about, the generalized propositions when we think of concrete cases involving issues of customary international law that contradict each other or the general proposition in question.
5. There are also some guidelines which contain negative descriptive statements about general principles, stating, for instance, that “there is no presumption that they do” (21, 22, 25 and 26). The other guidelines which do not contain such saving clauses are those which are merely stating the obvious. All of these guidelines beg further explanation due to their contingent and unclear nature, and I am afraid that States will be far more confused by such “guidelines,” if they were presented as authoritative, normative statements.
6. If I were a legal advisor of a State, I would be scared about the idea of having a set of clear, authoritative guidelines developed by the ILC for States to follow for the whole of customary international law. ILC is an organ which has special authority and responsibility and it is not an academic institution like ILA. That is why the British Institute of International and Comparative Law advised the ILC in 1998 not to include the subject in its agenda.
(“The ILC should not inscribe the topic of Sources….on its agenda. It is counterproductive, and may be impossible, to codify the relatively flexible processes by which rules of customary international law are framed. Moreover, in the field of sources, the questions are fundamental…as opposed to secondary…, and such fundamental questions seem to be exceptionally theory-dependent”. Study Group, British Institute of International and Comparative Law, International Law Commission and the Future of International Law, 1998, p. 42, para.104. http://www.biicl.org/publications/view/-/id/27/)
7. The question of customary international law is predominantly methodological, and as such, I have expressed an objection to the proposed title of the project. The word “formation” is a dynamic concept which implies that law is seen as a process, while the word “evidence” is static and is premised on the idea that law is a body of rules. When we talk about “formation”, we think of a certain sociological process how a customary rule is created over time. When we talk about “evidence”, we stop our clock at a certain critical time, and try to determine the applicable law. I am afraid that we cannot talk about formation and evidence at the same time without certain methodological confusion. I suggested in the Working Group that the ILC should confine the scope of the project to the “evidence” of customary international law.
8. Another methodological question involves the intended audience of project, namely, for whom we are trying to undertake this work on customary international law. I think there are four conceivable target audiences. First, the audience may be the ILC itself. Obviously, the ILC product in 1950, “Ways and Means of Making the Evidence…” was conducted for the ILC itself, and this is clear from its sub-title “Preparatory Work within the purview of article 24 of the ILC Statute”. It was necessary for the members of the Commission at that initial stage to have a common understanding as to where they could find the appropriate material for embarking on the work of codification of customary international law. The content of the 1950 document which enumerated the treaty series, collections of judicial decisions, etc., did not have much normative content; it was similar to the hand-out material that a tutor would give to the first-year law students.
9. If the project is not for the ILC itself, then, who is the intended audience? Here, we have to distinguish three possible options of addressees. One possibility is States, especially States that are parties to a dispute involving interpretation and application of customary international law. Their position is subjective. The second possibility is a third-party decision- maker, namely a judge, who is asked to make a judgment on the dispute. His position is inter-subjective. There is also a detached observer who wants to see the problem from an objective perspective. I believe that these perspectives, namely, subjective, inter-subjective and objective perspectives, should be consciously differentiated in order to avoid confusion.
10. In regard to methodology, Mr. Wood refers to looking into the case law of international courts and tribunals as a method of work in para. 18. I believe that we should be careful about this relatively easy approach. When the international court deals with a question of customary international law, it primarily has the goal of settling the disputes between the parties. Let’s use the Jurisdictional Immunities case that Mr. Wood refers to in footnote 5 of his Note as an example.
11. In this case, the Court examined the State practice of only 10 countries in order to ascertain the central issue – whether the “territorial tort exception” to State immunity is a customary law (ICJ Reports 2012, paras. 70-71.) If you were writing an academic thesis only on the basis of evidence from 10 States out of, say, 200 countries in the world, your professor would not give you a passing grade, because it would not satisfy the criteria of the “general practice of States” for the establishment of a customary norm. Those 10 pieces of State practice were the ones cited by the parties, Germany and Italy, and the Court did not bother to examine the State practice of the other 190 countries. As you are aware, Judge Gaja, Yusuf and others cast doubt in their separate opinions and declarations about the majority opinion’s lack of assessment of the “silence” of the other countries. However, the attitude of the Court’s majority opinion would be permitted in my view, because, first of all, there is a generally accepted presumption that the Court and the judges are supposed to know the law (jura novit curia). More importantly, because its responsibility is not to write an objective thesis but it is primarily to settle the dispute brought before it by the parties in the inter-subjective context of judicial proceedings. In other words, the Court was primarily concerned with the customary law status of the relevant rule as asserted by the parties on which it rendered its judgment. Thus, the role of the Court in the debate over customary law is limited by its judicial function which is significantly different from the work of our Commission which addresses to the world at large.
12. Mr. Wood seems to place emphasis on the case law of international courts and tribunals. To collect relevant passages of ICJ and PCIJ cases is very easy, but I would caution that such an approach can be misleading in view of not only the inter-subjective nature of the judicial function that I stated but also the limited areas of international law covered by judicial precedents. The ICJ cases are sporadic, covering only, say, 5 per cent of all international law cases and incidents, and accordingly, the Special Rapporteur should vigorously go into the vast areas of the 95 per cent of international law not covered by the past cases of the international courts.
13. In this connection, I would like to draw your attention to the “Incidents Studies” project by Professor Michael Riesman (Michael Riesman, “International Incidents：Introduction to a New Genre in the Study of International Law,” The Yale Journal of International Law, vol.10, no.1, 1984, pp. 1-20, p.11), who was critical of the general tendency of placing undue emphasis on ICJ cases, stressing the need to examine “incidents” other than judicial decisions. He gives an episode of a gentleman one night in Vienna who was crawling about on all fours in the light cast by a street lamp, apparently looking for something. Another man passed by, and asked what he was doing. He said that he had just lost his watch and was looking for it. The man said he would help to find it, and asked “where did you drop your watch?” The gentleman replied, “Back there”, pointing in the darkness on the other side of the street. He asked, “Why then don’t you look for your watch “over there”, instead of “here”? He replied, “Because,” the gentleman on the ground explained as if it had been perfectly obvious, “it is dark there with no street lights, and I cannot see. But here, it is light.” There is, of course, no way to find what he wants to find if he continues to search only where the ICJ happened to have placed under a spotlight.
14. While we are likely to assume that customary international law is something which is supposed to be universally recognized by all States, we should bear in mind the fact that there are certain subjective elements of individual States whose recognition is essential. Article 38 of the Vienna Convention on the Law of Treaties that Mr. Wood refers to in para.12 stipulates that “Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding on a third State as a customary rule of international law, [the article does not stop there; it adds a phrase:] recognized as such.” There was a big debate at the Vienna Conference whether it was necessary to have a phrase “recognized as such”, and if it was necessary, who was going to recognize such customary law character, the said third State or some other States, or whether it would have to be recognized by the international community as a whole? [Some 40 years ago right after I finished graduate school, I wrote an article on this point, which made me famous at least in my family!] (Shinya Murase, “Significance of Article 38 of the Vienna Convention on Law of Treaties” in Kokusai-Rippo (International Lawmaking, in Japanese, published by Toshindo, 2002), Chinese translation, in S. Murase, International Lawmaking, (Chinese People’s Public Safety University Press, 2012) pp.52-61.)
15. Extreme forms of individual recognition or non-recognition of customary norms such as persistent objectors, unilateral measures and the importance of specially affected States bring up major questions about customary international law. I think we should place these questions in a proper context. In my view, the concept of opposability plays an important role which functions as a medium for the creation of new customary rules. (See, S. Murase, International Law: An Integrative Perspective on Transboundary Issues, Sophia Univ. Press, 2011, pp. 214-310 (Part Three: Unilateral Measures and Opposability)).
16. Another point of methodology, I was a little troubled by the words “empirical research” in para. 19. I don’t think we are conducting any “empirical” research in the type of sociology of law empirical studies in this project regarding the formation of customary law. What we should be doing is an “inductive” research in the sense of Professor Schwarzenberger’s Inductive Approach to International Law.
17. Finally, I would like to mention my thoughts about the way in which we should proceed with the exercise on this topic. Formation of customary international law is an informal process. As pointed out by Professor Roberto Ago, it is a “spontaneous” process. Customary international law is, by definition, unwritten law. Ambiguity is part of the essence, and probably the raison d’être, of customary international law. It is useful because it is ambiguous. Customary international law may be better left as ambiguous as it is and as something to be determined by a court if it needs to be clearly determined with regard to a specific rule at issue between States. Given the inherent difficulty and sensitivity of the problem, I hope that the Commission will not be over-ambitious.
18. If the Special Rapporteur and the Commission come to realize the difficulty of tackling the whole of customary international law, I would propose that the Special Rapporteur takes a step-by-step approach, and limit the first stage of work to considering the questions posed by Article 38 of the Vienna Convention.
19 In any event, my feeling is that we may have to be content with a modest study on the subject, identifying the inherent problems involved in an abstract and restrained manner.
20. A modest study notwithstanding, there has been an accumulation of theoretical studies on the subject, not only in the Western academia but also in various regions of the world. I had a chance to read Mr. Wood’s entry on “State Practice” in the Max Planck Institute’s Encyclopedia, which was very well written but elaborated predominantly on the basis of British and a few other Western writers. For the study of ILC, I believe that we should build our work on a wider basis representing diversity of legal cultures of the world. Otherwise, we will not do justice to this important topic. So, I look forward to the next report of the Special Rapporteur which will convince the world that we are on the right track.
Thank you, Mr. Chairman.
2. Formation and Evidence of Customary International Law (17 July 2013) (A/CN.4/3181, Yearbook of the ILC, 2012, Vol. I, p. 83, paras. 13-23)
1. Thank you, Mr. Chairman. Before I begin, I would like to express my hearty congratulations to one of the members of the Secretariat, Mrs. Vinuon In-Opulencia of the Legal Liaison Office, whose baby arrived safely on 28 June. Mrs. In is, of course, the most important staff member for us here at the International Law Commission, and she has been doing an excellent job over the years in making our lives in Geneva secure and pleasant. A few weeks before the baby’s arrival, I wrote to Mrs. In from Tokyo, explaining to her that our mission at the ILC is to codify and progressively develop international law for the sake of future generations, so that the members of those generations, such as her newborn daughter, can reap the benefits of a world that will be more attuned to the demands of peace, justice, and sustainable environment. So, Mr. Chairman, let us hope that our work during this session and beyond amounts to something meaningful that will meet the expectations of future generations to come.
2. I would like to thank Mr. Wood for his very interesting First Report (A/CN.4/663), and for his oral introduction this morning, but as was the case last year, I will have to be very critical in my remarks regarding the study that he has presented to the Commission for its consideration.
3. I must admit that I was skeptical about the ILC’s adoption of this topic from the very beginning, and I am afraid to say that my skepticism has only grown after having read the Report presently before us.
4. In making my statement today, I will focus my attention on three main points whose treatment by the Special Rapporteur I find particularly problematic. The first concerns the proposed “scope” of the topic itself; the second relates to the “methodology” that the Special Rapporteur outlines as his suggested analytical approach towards the topic; and the third pertains to the Report’s recommended method for collecting relevant materials. Although I shall treat these three points as distinct subjects of discussion and contemplation, it should be borne in mind that I am doing so simply for the sake of providing a clearer and more efficient elucidation of my principal observations. In reality, the three are intrinsically linked with one another, such that the issues I find with one invariably touch on the others..
Scope of the Topic:
5. First, with regard to the scope of the topic, I consider it confounding that the Special Rapporteur has defined the scope of the project as “the formation and evidence” of the rules of customary international law. As I noted last year, “formation” and “evidence” are two diametrically opposed concepts; the former refers to dynamic processes that occur over time, whereas the latter is premised on the static state of law at a particular moment. Given this stark conceptual discrepancy, it is fundamentally erroneous to place the two concepts together, as the Special Rapporteur does in his Report, into a single basket, as doing so would necessarily invite methodological confusion. To cure this defect, I suggested, during the Commission’s deliberation of this topic in 2012, that the scope of the project be limited to encompass just the “evidence” needed to show the existence of rules of customary international law. This recommendation received support from some other members of the Commission at the time it was introduced, and I accordingly reiterate it at this current session of the ILC, in light of the Special Rapporteur’s First Report.
6. The distinction between “formation” and “evidence” that I have raised is also worth noting because it impacts any discussion one might have on the sources of international law (Rudiger Wolfrum, “Sources of International Law”, in The Max Planck Encyclopedia of Public International Law, Oxford, 2012, Vol. IX, pp. 299-313.) as articulated in the Report.
7. If we are to incorporate both “formation” and “evidence” within the proper scope of this topic, as the Special Rapporteur insists, it seems that some discussion on the “material” and “formal” sources of international law is at least necessary. The term “sources” has several different meanings. A “formal” source, on the one hand, indicates the form in which a rule that we deem an international law exists; it may exist as either a treaty, a rule of customary law or an instantiation of one of other forms of international law. A “material source,” on the other hand, means the extra-legal factors that lead to the creation of law. These factors may include political, economic, social or ethical considerations. Soft laws and unilateral measures are in part the manifestations of material sources. The relationship between “formal” and “material” sources is ultimately dialectical, which is an important point that needs to be clarified. Indeed, if we are to maintain, as the Special Rapporteur insists, the title of this project as the “formation and evidence” of customary international law, we need to examine the question of “formation” in terms of “material” sources and the question of “evidence” in terms of “formal” sources. Unfortunately, this bipartite approach is sorely missing from the Report.
8. Given the importance of clearly differentiating and defining “formal” and “material” sources for the sake of this project’s proposed scope, it is disappointing to see that the Special Rapporteur pays such scant attention to this fundamental analysis. Additionally, in those rare instances where he does address the issue, the Special Rapporteur displays a pronounced misunderstanding of the basic concepts and terms. The definition – or rather, quasi-definition – of “formal” sources that the Special Rapporteur provides appears in Paragraph 28 of the Report and is defined as “that which gives to the content of rules of international law their character as law.” This is a complete misunderstanding of the term “formal sources” that is commonly used. Obviously, a rule’s “character as law” is not imparted to it by “formal” sources. What the Special Rapporteur seems to be referring to here, instead, is the “origin” or the “basis of obligation” of law, which is normally called the question of the “philosophical sources of law,” if not the “material” sources of law. With regard to “material” sources, Mr. Wood only gives a passing reference to this class of sources of international law in Footnote 56 by citing Alain Pellet’s marginal note of his commentary. In fact, the Special Rapporteur elaborates no substantive discussion on the formation aspect of customary international law in his Report. I don’t see how the Special Rapporteur or the Commission can deal with the highly academic and theoretical aspects relating to the formation of customary international law. I therefore suggest that the word “formation” be removed from the title as well as from Draft Conclusion 1 in Paragraph 23.
9. The Report’s lack of any substantive discussion on the question of sources is exacerbated by the manner in which it so quickly, and in my opinion, unjustifiably jumps into a discussion of Article 38.1(b) of the ICJ Statute. That Article does not address the question of sources as such, neither formal nor material, neither philosophical nor historical. It merely stipulates the types of law that the ICJ may apply. Admittedly, one could call the applicable laws of a court “judicial sources”, but these sources are not sources of international law, properly understood. Indeed, each international court and tribunal possesses its own body of “judicial sources,” in the sense that each possesses its own set of rules concerning the types of law that it is permitted to apply. The ICJ is in no way a central decision-making organ for matters on customary international law. As one of these international courts and tribunals, it is no different in this regard, as its governing statute does not address the whole of international law, excluding, for example, unilateral acts and decisions of international organizations. (I should also mention that many international law rules have been created by unilateral measures (as distinct from unilateral acts). Take, for instance, the regime of continental shelf, which began with the Truman Declaration of 1945; the regime of Exclusive Economic Zones claimed by Kenya and others in the early 1970s; and many norms of international economic and environmental law, all of which began with unilateral measures undertaken by States. It is thus highly flawed to rely on the provisions contained in Article 38 of the ICJ Statute as a basis for our project, which is supposed to cover all areas of international law. For an elaboration of these points, see S. Murase, “Unilateral Measures and the Concept of Opposability”, and other articles in Part Three, Ditto, International Law: An Integrative Perspective on Transboundary Issues, Sophia Univ. Press, 2011, pp. 214-309.) For this reason, I consider it highly inappropriate that the ILC’s work in this exercise should rely on a particular provision on the applicable law of a specific court in defining customary international law, since doing so would contradict the fundamental conceit of this topic, which is to elaborate a normative conclusion for the general purposes of the entire international community.
10. Another reason why I believe that any attempt at defining customary international law must move beyond Article 38.1(b) of the ICJ Statute is precisely that this provision does not give us a clear definition of customary international law, except for the ambiguous expressions, “a general practice” and “accepted as law,” neither of which is helpful in the least. We should try to find a clearer and more precise formulation addressing the basic elements comprising customary international law. To demonstrate my argument by way of analogy to gastronomy, if one were to define bouillabaisse, for instance, one would have to enumerate the ingredients of that dish, such as seafood and chicken cooked in a pot with rice, tomatoes, saffron, etc. It simply would not suffice for one to merely say that bouillabaisse is a dish that can be found at “No. 38 on the menu of the restaurant ‘Le Pré Catelan’ (or ‘Alain Ducasse’)”.
11. To indicate what the ingredients of customary international law are is, of course, very difficult. Should we refer to opinio juris as well as general State practice, or should we just stick to State practice without mentioning opinio juris, at least to the extent that the latter exists on an equal footing with the former? We need to have a lot of in-depth discussion into questions such as these before we can give an appropriate definition of customary international law.
12. My criticism of the Report’s reliance on Article 38 of the ICJ Statute is also grounded in my suspicion that any discussion of that Article will veer dangerously close to being a commentary on that Article. To the best of my understanding, I never thought that we would be preparing such a commentary under the rubric of this project. There is already a considerable wealth of commentaries on Article 38 of the ICJ Statute, and I do not think that for the purposes of this present topic, we should be adding to that literature by writing a “commentary on commentaries.” I am afraid that the judges of the ICJ and the parties to the ICJ Statute would not particularly welcome the ILC trying to give guidance to the Court in any authoritative manner.
13. For the foregoing reasons, I believe that Draft Conclusion 2 (a), as proposed by the Special Rapporteur in Paragraph 45 of the Report, is grossly inappropriate. The reference to Article 38.1(b) does not give us any clarification about the concept of customary international law, but, on the contrary, only begs further questions.
14. So far, I have spoken only on the issue of the topic’s proposed scope. I will now move onto the issue of the Report’s suggested methodology, which I perceive to be riddled with numerous flaws. First, I am troubled by the Special Rapporteur’s inconclusive statements in Paragraph 20, wherein he refers to the point I raised last year about the intended audience of this project. (I stressed that we would have to distinguish three possible options of addressees: One possibility is States, especially States to a dispute and their position is essentially considered as “subjective”. The second possibility is a third-party decision- maker, namely a judge, who is asked to make a judgment on the dispute before him whose position is characterized as “inter-subjective”. There is also a detached observer who wants to see the problem from a sort of an “objective” perspective.) Mr. Wood states there that “the accepted approach for identifying the law should be the same for all: a shared, general understanding is precisely what the Commission may hope to achieve.” My questions then are: How does the Special Rapporteur plan to arrive at this unitary approach that is “the same for all”? How are we supposed to obtain “a shared, general understanding for identifying the law”? Is it the Special Rapporteur’s view that a court’s position as expressed by its majority opinion is the one we should accept as something to be “the same for all”? I would like to have clarification and further elaboration on these points.
15. Second, I have difficulties fully understanding Paragraph 22 of the Special Rapporteur’s Report, which maintains that “the topic is not concerned with determining the substance of particular rules.” Suppose, then, we are looking for “general rules” as opposed to “particular rules” – what are the criteria for differentiating these two groups of norms? We can find the only pertinent statement on this point, not in the text of the Report itself, but in a footnote – Footnote 40 – which states, “Cf. (I don’t know what the Cf. means here.) the distinction between primary and secondary rules that was so important in the Commission’s work on Responsibility of States for Internationally Wrongful Acts.” Is the Special Rapporteur contemplating, by virtue of this reference to the ILC’s work on the topic of State Responsibility, that the distinction between primary and secondary rules be applied with regard to customary international law? If that is the case, how does he differentiate secondary rules from primary rules for the purpose of the present project? You will recall that, even in the context of State Responsibility, Roberto Ago who had developed this methodology, had to abandon the distinction between primary and secondary rules when he drafted Article 19 on international crimes during the first reading of that project. In the context of customary international law, we will have to have a constant dialogue between primary and secondary rules, because the general, secondary rules on the formation and evidence of customary international law cannot be divorced from the questions arising from primary, particular rules. Even supposing that the primary/secondary rules distinction can adequately be made, the characteristics of customary international law vary in different branches of international law (which I will not elaborate here) and so, we would have to conduct an inductive survey of primary, particular rules as they exist on the ground. In any event, we need to have the Special Rapporteur’s clear ideas on the methodology that he is going to employ pursuant to the statements he has made in Paragraph 22, especially in relation to the connection he has drawn between his methodology for the present topic and the Commission’s methodology for its earlier project on State Responsibility.
Method for Collecting Relevant Material:
16. My third, and final, point relates to Part Four of the Report concerning the method for collecting the relevant materials that will be considered. This Part deals with the case-law of the ICJ and other international courts and tribunals. I am a bit troubled first with the word “case-law.” This is of course a Common Law tradition, but within the context of international law, I don’t think it is appropriate to use an expression which gives the impression that there exists an independent category of law apart from treaty law and customary international law. As I stated last year, the cases dealt with by the international courts and tribunals are sporadic and limited. We need to explore far beyond those cases, even if we try to delimit this project to secondary rules, whatever they mean, the point I made just now.
17. Of course, I am not denying the need to study the jurisprudence of the ICJ when exploring the question of the identification of customary international law norms. However, we should be conscious of the fact that there is a generally accepted presumption that the judges of the Court are “supposed to know the law” (jura novit curia) and that therefore, they don’t consider it necessary to explain the reasons why or how they have determined the existence of a customary norm. More importantly, the Court’s primary responsibility is not to write an objective thesis on customary international law, but to settle the dispute brought before it by the parties in the inter-subjective context of judicial proceedings. In other words, the Court is primarily concerned with the customary legal status of the relevant rule as asserted by the specific parties on which it renders its judgment. Thus, the role of the Court in the debate over the existence of a particular rule of customary international law is limited by its judicial function, which is significantly different from the aspiration of the Commission’s work on this topic, whose aim is to addresses the world at large.
18. With regard to international courts and tribunals other than the ICJ, I believe we should be careful not to make an easy enumeration of their jurisprudence, since each court and tribunal has its own set of rules for ascertaining the laws that it may apply, and these laws are invariably different from one court and tribunal to another. For instance, the ITLOS defines its applicable law in Article 293 as “the (Law of the Sea) Convention and other rules of international law not incompatible with the Convention,” while the WTO Dispute Settlement Understanding in Article 3 (2) provides for its applicable law as the “covered agreements and customary rules of interpretation of public international law” (incidentally, Paragraph 77 (ii) of the Report describes the customary law status of the precautionary principle, which does not belong to the “customary rules of interpretation”). Moreover, international criminal courts and tribunals have inherent limitations in applying customary law, even if the relevant rule is fully established in customary law, when that law comes into conflict with the principle of nulla crimen sine lege.
19. In citing the cases of these courts and tribunals, we should be conscious of whether the decisions referenced actually address the existence of customary norms or merely allude to the existence of what Article 38.1 (d) of the ICJ Statute characterizes as “subsidiary means for the determination of rules of law.” This was the distinction I made last week at the MFN Study Group, stating in my short paper that the case-law of the mixed tribunals could not be considered as precedents establishing customary law but merely as subsidiary means. On that occasion, Mr. Murphy referred to the ICJ judgment on the Dialo case, 2012, Para.13, which reads as follows:
20. “The Court has taken into account the practice in other international courts, tribunals and commissions (such as the International Tribunal for the Law of the Sea, the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights (IACHR), the Iran-United States Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and the United Nations Compensation Commission), which have applied general principles governing compensation when fixing its amount, including in respect of injury resulting from unlawful detention and expulsion.”
21. It is most likely that the Court was not trying to elevate the said “general principles” to the status of customary international law, but merely referred to them as subsidiary means to determine the rules of law governing compensation. I think we more or less agreed at the MFN Study Group that the decisions of investment tribunals should largely be treated as subsidiary means for the determination of rules of law rather than as evidence of customary international law.
22. An easy enumeration of domestic court cases should also be cautiously avoided. Each country has its own constitutional system governing the incorporation of customary international law into its domestic laws; therefore, the rank that a given customary norm occupies within a particular national legal hierarchy, the validity and applicability of that norm towards the resolution of domestic disputes and the procedures for that norm’s domestic implementation all vary from one country to the next. (A. Cassese, “Modern Constitutions and International Law”, Recueil des cours, t. 192, 1985-III, pp. 331-475; L. Wildhaber & S. Breitenmoser, “The Relationship between Customary International Law and Municipal Law in Western European Countries”, Zeitschrift fur auslandisches offentlisches Recht and Volkerrecht, Bd. 48, 1988, pp. 163-207.) More importantly, each State has its own judicial tradition in identifying customary international law as proof of evidence. I don’t think it appropriate for the ILC to propose a set of guidelines, with the expectation that we could exert certain influence on States in this regard.
23. As a side note to the point I have just made, I would like to comment that, in Japan, we have a number of court decisions on the domestic effect of customary international law. (S. Murase, “Reception of International Law into Domestic Law of Japan”, in Ditto, International Law: An Integrative Perspective on Transboundary Issues, 2011, pp. 378-387.) I sent the list of these cases (Shimoda et al. v. Japan, The Japanese Annual of International Law (JAIL), No.8, pp. 212f.; Saito et al. v. Japan, JAIL, No. 32, pp. 125f.; Yoon Soo Kil v. Japan, JAIL, No. 20, pp. 127f.; Japan v. Zhang Zhenhai, JAIL, No.34; ODECO v. Japan, JAIL, No.27, pp. 148f., No.28, pp. 202f; Taiwan v. Yu Ping-huan, et al. JAIL, No.22, pp.151f, No. 31, pp. 201f.; Pakistani Loan, JAIL, No.49(2006), pp.144f.) to Mr. Wood in January at his request, but I regret to see that none of them is reflected in his Report.
24. Finally, while the Special Rapporteur has tried to summarize scholarly writings on the subject in Part XI of his Report, I should mention that, when dealing with customary international law, we should not take these writings lightly. The discussion on the two elements of customary international law, for instance, will take ages to resolve, and I don’t see how it is possible to overcome the difficulties just in one year!
25. To sum up, Mr. Chairman, the major points I made this morning were as follows:
1. The scope to be covered by this topic should properly be delimited to the “evidence” of customary international law.
2. Article 38.1(b) should not be considered as the basis or as the starting point of this exercise.
3. The methodology for dealing with the topic, primary/secondary rules question in particular, should be clarified before embarking on elaboration of draft conclusions.
Thank you, Mr. Chairman.
3. Comment on Mr. Wood’s Second Report on Customary International Law (15 July 2014) (A/CN.4/SR3223)
1. I would like to thank Mr. Wood for his Second Report (A/CN.4/682) and for his oral introduction, which was electronically circulated immediately afterwards to the members of the Commission. I believe that this practice should be followed by other Special Rapporteurs. Perhaps we should consider circulating our statements in the Plenary Committee to the members as well.
2. Last year and in 2012, I expressed a number of concerns about the Special Rapporteur’s methodology proposed in the Note and First Report, given the highly theoretical nature of this topic. I was particularly concerned by Mr. Wood’s excessive reliance on the ICJ Statute and the Court’s jurisprudence as sources of customary international law. Our task is not to write a commentary to Article 38, 1 (b). Rather, our task is to formulate clear guiding principles on the identification of customary international law, on the basis of the whole of international law. Our consideration should therefore not be limited to ICJ jurisprudence, which only refers to those limited issues within customary international law that happen to arise between parties.
3. I suggested that the final product of Mr. Nolte’s work might better be characterized as “Guidelines.” For the present topic of Mr. Wood, I am comfortable with the term “Conclusions,” because of the topic’s inherent academic nature.
4. I would like to address two major issues this morning. The first concerns the definition of customary international law as proposed by the Special Rapporteur. The second pertains to the problem of “double counting”, or “repeat referencing,” (if you like) evidence as indicative of both State practice and opinio juris.
5. First, the definition of customary international law provided by the Special Rapporteur in last year’s report was “the rules of international law referred to in Article 38（1）(b) of the ICJ Statute.” The definition provided in this year’s Second Report is an improvement, and is appropriately more specific and detailed. That said, I do not understand why the Special Rapporteur included the ambiguous expression “a general practice accepted as law,” which was harshly criticized by Judge Fitzmaurice as “defective.” (Gerard Fitzmaurice, in Symbolae Verzijl, pp. 153, 173-175.) This criticism has been echoed by many other writers, calling it “truncated” (P. M. Dupuy, in Collection of Essays by Legal Advisers and Practitioners, pp. 377, 379.), “outmoded,” (Y. Onuma, pp. 191-212, esp. pp. 201-203.) “erratic and delphic” (Mendelson, in Fifty Years of the International Court of Justice, pp.63, 67.) and even “abusive” (McWinney, The World Court, pp. 2-3.).
6. I find the definition in Draft Conclusion 2 (a) unacceptable for several reasons. First, to say that (customary international) law is something “accepted as law” is nothing but a tautology. Furthermore, the word “acceptance” has a variety of meanings. It may mean the simple acknowledgment of a certain fact (when we say, for instance: “I accept the defeat of our national team in the World Cup”). It can also indicate a particular choice (for example, “I accept the invitation to give a talk at the Seminar”), or it can express agreement with specific, externally imposed, conditions (such as, “I accept the understanding not to interfere in political processes”). For this reason, I do not think it suitable to include this term in our definition.
7. Second, this definition seems to give privileged status to general practice over opinio juris. If the intention of the Special Rapporteur is to give equal footing to State practice and opinio juris, then the definition should simply employ the term opinio juris as an independent category and not as a modifier of a general practice. The words “derive from and reflect” are also too ambiguous. In my view, Draft Conclusion 2 (a) should read: “customary international law means the rules of international law that are constituted by general practice and opinio juris.”
8. Third, the formulation of customary law in Draft Conclusion 2 (a) appears to rest, at least partially, on a faulty premise. The Special Rapporteur seems to assume that general practice must always precede opinio juris in the formation of custom, but that is not always in case. It is true that, traditionally, the formation of customary international law begins with accumulation of State practice, to which opinio juris subsequently attaches. However, in recent years that the order has often been reversed. Opinio juris, as expressed in General Assembly resolutions or declarations of international conferences, frequently precedes general State practice. In the case of international conferences and conventions, customary international law is derived from opinio juris, that is subsequently implemented by State practice. Thus, our definition should treat both elements equally, if we are going to adhere to a two-element theory of custom formation.
9. Fourth, missing from Draft Conclusion 2 (a) is the fact that customary international law is “unwritten” law (lex non scripta). Even if a rule of customary international law is formed on the basis of treaties or written instruments like the ILC Articles, the customary rule itself is not a lex scripta; it is an unwritten law. For example, we discussed at the 2009 Working Group on aut dedere aut judicare whether a State can prosecute a person for a “crime against humanity” on the basis of customary international law, which may come into conflict with the principle of nulla crimen sine lege. It is generally understood that the principle requires that an individual be convicted on the basis of written law, and not of an unwritten law. Thus, it is important that the unwritten nature of customary international law is included in the definition.
10. I do not agree with the Special Rapporteur’s remark in his oral introduction that Conclusion 2 (a) should be moved to the general commentary. I think we need a definition at the outset, and as a stand-alone Conclusion, separate from the use of other terms.
11. Next, I would like to point out the problem of “double counting”, or “double referencing”, the same evidence for both State practice and opinio juris. If we are to maintain the two-element theory of custom formation, obviously we should endeavor to distinguish and delineate these two elements as much as possible.
12. However, Mr. Wood contradicts himself by counting the same evidence for both elements. As a consequence, he seems to be caught by a trap that Professor Maurice Mendelson, former chair of the ILA Committee, has warned us with his forceful one-element theory. (Maurice H. Mendelson, “The Formation of Customary International Law,” Recueil des cours, vol.272 (1998), pp. 156-410; Ditto, “The Subjective Element in Customary International Law,” British Year Book of International Law, vol.66, 1995, pp.177f.) If we are to move forward with Mr. Wood’s stated two-element theory, the Commissions will need to demonstrate that separate evidence exists to prove State practice on the one hand, and opinio juris on the other.
13. Unfortunately, under Mr. Wood’s proposed Conclusion 7 (2) and Conclusion 11 (2), the forms of evidence of State practice are virtually identical to those of opinio juris, with only a few minor, negligible differences. Furthermore, Conclusion 11 (4) provides, in an open-ended fashion, that ‘an act by a State establishing practice does not preclude the same act from being evidence of the opinio juris.’
14. I think it a mistake to enumerate the sources of evidence for opinio juris (in other words, “where” evidence can be found). In my opinion, the Special Rapporteur should elaborate on the methods practitioners may use to locate evidence of opinio juris (or “how” opinio juris may be demonstrated). I understand that Mr. Wood attempted to do so, to some extent. For instance, in paragraph 71 of the Report, he draws a distinction between cases involving the assertion of legal rights and those acknowledging a legal obligation, and between cases of physical practice as opposed to verbal practice. Regrettably, however, Mr. Wood did not go beyond indicating these distinctions, and did not articulate how these distinctions may help us identify evidence of opinio juris.
15. My suggestion would be that, while we maintain the two-element theory on an abstract level, we take a more flexible approach to the actual identification of the subjective element along the lines of Guideline 19 of the ILA London Statement. Under this approach, where State practice is relatively thin, opinio juris may compensate for a relative lack of practice. In this way, opinio juris assumes a supplemental function. (ILA London Statement on the Formation of Customary International Law, Report of the ILA, 2000, pp.712f., p.751. “19. It appears that, in the conduct of States and international courts, a su8bstantial manifestation of acceptance (consent or belief) by States that a customary rule exists may compensate for a relative lack of practice, and vice versa.”) This approach is in conformity with the general trend of ICJ jurisprudence, which has merely given lip service to the state practice requirement by recognizing it in an abstract fashion, while rarely demanding concrete evidence of that practice. (If we decide to give only a supplementary function to opinio juris, Draft Conclusion 2 (a) on the definition should read: “customary international law means the rules of international law that are constituted by a general practice, supplemented by opinio juris.”)
16. It is obvious, however, that we all need to reflect on this complex issue of opinio juris carefully. That is why I think we should wait until next year to send Draft Guidelines 10 and 11 to the Drafting Committee.
17. I would now like to address other, less significant issues within the Second Report. With regard to Draft Conclusion 1 on Scope, I believe that the word “methodology” in paragraph 1 should be replaced by the word “methods” for the obvious reason that we don’t have any concrete methodology. I also believe that paragraph 2 runs more smoothly by removing the words “the methodology concerning” and just stating “without prejudice to other sources of international law,” etc. I also note that Draft Conclusion 1 (2) should be moved to the commentary.
18. With regard to Draft Conclusion 3, I believe, as I mentioned earlier, that the last part of the sentence should read: “it is necessary to ascertain whether there is a general practice and opinio juris.”
19. I would also like to point out that this Draft Conclusion 3 begins with the words “to determine the existence of a rule of customary international law…,” The question here is “who” makes such a determination. Since the title of Guideline 3 is “basic approach,” it necessarily raises questions about who is responsible for using such an approach, Would the individual or body making the determination be a party to a dispute (a subjective determination), or a court as a third-party dispute settler (an inter-subjective determination), or a detached observer like an academic (an objective determination)? This question was intensely debated in the context of the ILA Committee on the formation of customary international law, and I raised the point a number of times in the previous sessions. However, Mr. Wood simply dismissed my concerns by suggesting that my view was a “denial of law,” which is entirely inaccurate and unacceptable.
20. Setting aside for a moment the issue of an academic or objective determination, allocation of the burden of proof for customary rules is a serious matter in some domestic courts, and certainly in Japan. Our Civil Codes and the rules of civil procedure provide that, if a rule is asserted as customary law, the court must make such a determination as a matter of propio motu. On the other hand, if the rule is asserted merely as a de facto custom, nonetheless having certain normative effects, the burden falls preliminarily on the party who asserts the existence of such custom to demonstrate its existence. I will refer to this issue further in connection Draft Conclusion 10, paragraph (2). In any event, I believe that the question of “who” determines the existence of a customary rule should be duly addressed. Unlike domestic legal systems, in the international community, there is no supreme court to make ultimate determinations of customary law. In addition, most international disputes do not end up in the ICJ or international juridical bodies. As a result, the attitudes and arguments of the parties are much more important in international law.
21. With regard to Draft Conclusion 4, I have doubts about the usefulness of this Conclusion, because it does not say anything about the “assessment of evidence.” First of all, I am not sure what kind of evidence the Special Rapporteur has in mind when he refers to “evidence” here. Assessment of evidence requires far more clear and solid criteria than what is contemplated by the ambiguous expression “regard must be had…” If we are talking about “evidence,” we cannot rely on such unsettled and contingent factors as “context” and “surrounding circumstances.”
22. I have fewer problems with regard to Part Three on general practice. However, the first sentence of Conclusion 7, that is, “Practice may take a wide range of forms”, is merely a factual description and may not be appropriate for a conclusion. With regard to Conclusion 7 (2), as I mentioned earlier, I have reservations about the appropriateness of enumerating examples of State practice. I understand that Conclusion 7 (4) will be discussed next year. I am also unsure about the value of including Conclusion 8 (1), which seems to be stating the obvious. I also have reservations about Conclusion 8 (2), which says that practice of a State without one voice should be given less weight. It is normal and healthy within democratic countries for various State organs to speak with different voices at a given time. In any case, Conclusion 8 seems unnecessary.
23. The most important conclusion relating to general practice is Conclusion 9, which concerns the “quantitative” requirement of general practice, or the “density” of that practice. I wonder if the rather vague formula proposed by the Special Rapporteur is entirely satisfactory, given that it describes the requirement with the words “general,” “consistent,” “widespread” and “representative.” I think we should use the words “extensive and virtually uniform,” the terminology employed by the ICJ in the North Sea Continental Shelf cases. In the literature, “sufficiently extensive participation” is the favored expression. The central question here is how extensively State practice must be, and I think the words “consistent” and “representative” do not provides us with enough guidance on this point.
24. To put it more simply, how many States should participate in the formation of customary international law? My students often ask if it is necessary that over three fourths of States participate, or is more than half acceptable? Of course, there is no magic number of States necessary for a rule to be recognized as customary international law. Nonetheless, the number is important, and was the subject of heated debate during the North Sea Continental Shelf cases. I hope that the Special Rapporteur will elaborate on this point in the commentary, if not in this Conclusion.
25. The concept of “specially affected States” in Conclusion 9 (4) is controversial today. This concept undoubtedly served to safeguard the interests of the powerful States in the past. I am not sure if, in the age of globalization, this concept still is or should be supported. If increasing numbers of States start asserting privileged status as specially affected, I am afraid that it may jeopardize the very existence of customary international law.
26. Finally, Draft Conclusion 10 (2) downplays the significance of “usage” by employing the adjective “mere.” This gives the impression that usage does not have any normative force. This is not necessarily true. De facto custom or usage to which opinio juris has not yet attached may nonetheless have certain, limited normative effect both in domestic law and in international law. In the Civil Code(s) of Japan, customary law (Gewohnheitsrecht) has full-fledged effect as law, (General Law regarding the Application of Law of Japan, Article 3 (Customs Having the Same Effect as Laws)), while de facto custom (Gewohnheit, Ubung) devoid of opinio juris has nonetheless a limited normative effect. (Civil Code of Japan, Article 92.) In international law, some de facto customs, which do not enjoy sufficient opinio juris, may be deemed to have limited effect, or “opposability.”
27. In this vein, I would like to point out that many customary rules of international law have been created by the accumulation of unilateral measures of a State or a group of States. Take, for example, the regime of the continental shelf, which began with President Truman’s unilateral declaration in 1945, which was initially considered unlawful under the traditional law of the sea. By the early 1950s, however, after several Caribbean States declared jurisdiction over their respective continental shelves, the regime became “opposable.” By the adoption of the Continental Shelf Convention in 1958, the regime was a fully legal institution, with the binding force of customary international law on non-parties to the Convention. I hope that the Special Rapporteur will consider addressing the question of unilateral measures and their opposability (S. Murase, “Unilateral Measures and the Concept of Opposability in International Law,” in International Law: An Integrative Perspective on Transboundary Issues, Sophia University Press, 2011, pp. 214-266.) as part of his future work on the identification of customary international law.
Thank you, Mr. Chairman.
4. Murase Comments on CIL 2015 (19 May 2015) (A/CN.4/SR3252)
1. I would like to thank Mr. Wood for his comprehensive Third Report (A/CN.4/695). He has made laudable progress on both the draft conclusions on identification of customary international law and added extensive supporting research on the topic. I wish to first address a few specific of the third report in order. Second, I would like to focus on the sections regarding the relationship between treaties and custom. Third, I will also refer to the emergent rules of customary international law in the context of unilateral measures taken by States. My last two issues are related to the question of particular custom and to the persistent objector doctrine.
2. First, going through the third report, I have the following brief comments on the issues presented:
3. I welcome the Special Rapporteur’s new draft conclusion 3(2) (“Each element is to be separately ascertained. This generally requires an assessment of specific evidence for each element.”), which would clarify the necessity of avoiding the so-called “double counting” of the two elements, that I pointed out last year. The word “generally” in the second sentence is a bit troubling, however. If we say “generally”, we would need to address “exceptions” where this requirement is exempted, and I would suggest that the word “generally” be deleted.
4. I also welcome new draft conclusion 3(3) on non-State actors. I do not know, however, whether the word “other” is necessary here.
5. With regard to “inaction” in draft conclusion 11(3), I have a certain reservation. While there are cases where inaction mat be regarded as a form of practice or as a form of expression of acceptance as law, there are also cases where inaction implies a denial of acceptance. We, in Asia, and particularly in Japan, when we disagree, it is often the case that we just keep silent and that we don’t speak out, simply because we don’t want to offend people. I am sure you agree that this is how I have been behaving here in the Commission for these years! So, I believe that we also need to indicate this negative aspect of inaction in assessing it as evidence of customary international law. (Note the 1962 ICJ Temple of Preah Vihear case in regard to Thai King’s receipt of the map, which was for him merely an act of courtesy).
6. In paragraph 11 of the third report, it is appreciated that the Special Rapporteur refers to the AALCO Working Group on customary international law. As the Secretary-General of AALCO mentioned last Wednesday, unfortunately, the expert group’s report, mainly drafted by Professor Sienho Yee, did not receive strong support at the Working Group’s meeting held in Beiji ng last month. Mr. Hassouna chaired this Working Group session, and he could tell you more. The draft report was placed on the website only a few days before the AALCO session in Beijing, and the delegates did not have time to read and analyze its content. Thus, the AALCO plenary did not adopt any resolution on this item. For those AALCO delegates who attended the Working Group meeting, it was a valuable opportunity to realize that, unlike treaties for which States can choose not to be bound simply by not joining in the treaties, customary international law is binding on all States regardless whether they support its content or not, and therefore, any attempt to give general guidelines should be done with utmost caution. It was stressed by the AALCO delegates that the ILC should not rush for hasty conclusions on this delicate topic.
7. I share the view of Mr. Kittichaisarie regarding the “specially affected States” (para. 39 of the report), which the Commission decided last year not to deal with. Professor Sienho Yee tried to revive the notion in his draft report for the AALCO working group, but it received mixed reaction in the working group, and as I mentioned, the Working Group nor the AALCO itself did not adopt Professor Yee’s report. I spoke on this notion of specially affected States last year at length, and so, I am not repeating it here, but since the Court in the North See Continental Shelf cases referred to “major maritime nations” as special affected States in the law of the high sea context and the dissenting opinion of Judge Schwebel in the Nuclear Weapons advisory opinion case alluded to the State practice of the five permanent members as nuclear weapon States (though he did not employ the term “specially affected States”), people have become very cautious of this concept. I think therefore that it was right that we decided not to take up this issue in our draft conclusions.
8. In regard to the constituent elements of customary international law, which the Special Rapporteur mentions in multiple paragraphs, he posits that the members of the Commission have agreed with the two element theory. This is fine, but it should not be taken to mean too much, because the relationship between the two is conceived in a variety of ways among our members and experts. The relationship varies depending on specific rules, not to mention broader fields, of international law.
9. There is a discernible group of customary rules in which both elements are sufficiently present, while other groups o rules that are supported by dense state practice may lack sufficient opinio juris, and many rules that are supported by clear opinio juris worldwide do not evince enough support by State practice to be considered as established customary international law. The Special Rapporteur’s assessment in footnote 28 is one that specifically may not be fully appropriate. As I stated last year, there are occasions in exceptional circumstances that opinio juris (not just opinio) precedes State practice, and that, therefore, in cases where State practice is not yet sufficiently accumulated, opinio juris should be assessed as a supplementary element for identification of customary international in line with Guideline 19 of the ILA London Statement. (Guideline 19 of the ILA London Statement: “It appears that, in the conduct of States and international courts and tribunals, a substantial manifestation of acceptance (consent or belief) by States that a customary rule exists may compensate for a relative lack of practice, and vice versa.”) In any event, to take an excessively rigid view on the relationship between the two elements would hamper proper evolution of customary international law, and I emphasize that we need to take a flexible approach to this problem.
10. With regard to international organization, I appreciate the Special Rapporteur’s remark in paragraph 72 on the distinction between the internal law aspect and its external effects, rightly indicating that it is the external aspect of international organization that is relevant. However, as I mentioned in previous years, subsequent practice within the organization, namely internal customary law formation, affect the external effect of customary law making by the organization, as indicated in the 1986 Nicaragua judgment with regard to the right of self-defense. I would like to see a conclusion addressing this point in the future reports by the Special Rapporteur.
11. I understand that last year we agreed not to define or qualify international organization in the draft conclusion, which is fine. However, when it comes to international conferences (Draft conclusion13), I think we need to qualify, since there are variety of international conferences. In line with the ILA London Statement (Guideline 33), perhaps we should say “international conferences of universal character”.
12. Secondly, I would like to address the relation between treaties and custom. When considering this relationship, I feel it is indispensable to refer to Article 38 of the Vienna Convention on the Law of Treaties (VCLT), since this Commission, as well as the 1969 Vienna Conference, discussed the issue in detail. I was a bit disappointed to see that the third report only refers to Article 38 in footnote 88, citing only Professor (Judge) Gaja’s entry in the Oxford Commentaries on VCLT. (G. Gaja, “Article 38” in O. Corten & P. Klein (eds), The Vienna Convention on the Law of Treaties, 2nd ed (Oxford University Press, 2011), pp. 949-960.) A number of authors including Professor Gaja point out several important issues involved in Article 38, which in my view should be carefully reviewed in our consideration of the present topic.
13. Article 38 reads: “Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding on third States as a customary rule of international law, recognized as such.” The most pertinent phrase in this Article is “recognized as such”. When I first read this provision, I did not think that this phrase was necessary. And then, I found out that this was inserted by the Syrian delegation at the 1969 Vienna Conference. (See, UN Conference on the Law of Treaties, Official Records, 1st sess. A/CONF. 39/11, p. 201.) It was after a heated debate that this phrase was inserted, and its significance cannot be understated. There was a diversity of views expressed as to the nature of such recognition. If a customary rule contemplated under this Article had been of a universal nature and binding on all States, this phrase would not have been necessary. If the phrase is to be construed meaningfully, in accordance with the effectiveness principle of treaty interpretation, we must know who are in the position to recognize such a customary law character. It appears that it is the individual States concerned that give this recognition. (Shinya Murase, “Significance of Article 38 of the Vienna Convention on the Law of Treaties,” Kokusaiho Gaiko Zasshi (Journal of International Law and Diplomacy), 1983 (reproduced in Murase, Kokusai Rippo, Toshindo, 2002), pp. 107-124.) It was at least the position of some of the drafters of Article 38. As I have repeatedly stressed, we need to distinguish between a “subjective” perspective as a party to a dispute and an “inter-subjective” perspective of third-party decision makers in dispute settlement, and this is where we should be particularly conscious of this methodological distinction in dealing with customary international law.
14. With regard to the chapeau of Draft conclusion 12, the word “reflect” may need to be changed or supplemented: this word is merely descriptive of factual phenomena made by an “objective” perspective of a detached observer, and it does not convey a normative message. The crucial point is the normative assessment on whether it is binding on States as a customary rule. So, the sentence should be changed to something like: “A treaty provision may reflect or come to reflect a rule of customary international law binding on the third parties to the treaty, …”
15. I am happy that the Special Rapporteur refers to “an emerging rule of customary international law” in Draft conclusion 12 (b). I am not fully convinced, however, by the expression of “a new rule of customary international law” in 12 (c). What is the difference between the two? It seems to me that there is likely no need to refer to “new rules”, which should be included or absorbed in “emerging rules”, because I can hardly imagine a case where a new rule incorporated in a treaty instantly becoming a rule of customary international law without going through a stage of emergent rules.
16. I also believe that these draft conclusions should include a guideline that not all treaty provisions are capable of generating emergent rules of customary international law: it is only those provisions of “fundamentally norm-creating character” that can generate emerging rules of customary international law, as was rightfully ascertained by the Court in the 1969 North Sea Continental Shelf cases.
17. This leads to my third point this morning. As I mentioned previously, emerging rules of customary international law are generated not only by treaties but also by “unilateral measures” of States. Take the regime of the continental shelf as an example. It began with unilateral measures taken by the United States in President Truman’s proclamation of 1945. Initially, it was considered “unlawful” in breach of the freedom of the high seas, but soon became accepted as “opposable” among the Caribbean States. By 1958, the continental shelf was recognized as a full-fledged “legal” regime established in customary international law, which was codified by the Geneva Continental Shelf Convention, Articles 1 to 3. I hope that the Commission will deal with this question separately from that of crystallization of customary law based on treaties. As you recall, the International Court of Justice has referred to the question of “unilateral measures” and its legal effect characterized as “opposability”, most notably in the 1950 Fisheries case and 1974 Fisheries Jurisdiction cases. (Shinya Murase, “Unilateral Measures and the Concept of Opposability in International Law”, in Murase, International Law: An Integrative Perspective on Transboundary Issues, Sophia University Press, 2011, pp. 214-266.)
18. I should add that my suggestion for inclusion of this aspect of emergence of customary international law does not mean that we should go back to the study on the “formation” of customary international law which was originally proposed by the Special Rapporteur but was subsequently abandoned. My suggestion is to remain within the bounds of the identification of customary international law and treat this problem as assessing the legal status of the emerging customary law for dispute settlement.
19. I would also like to note that our reference to “emergent rules of customary international law” is important for the ILC itself, because we at the Commission are concerned with “progressive development of international law”, the exercise that we conduct on the basis of emergent rules of customary international law, while our exercise for codification is based on “established” customary international law.
20. Fourthly, I have certain difficulty with the treatment of “particular custom” in Draft conclusion 15. I know that Latin American countries traditionally have a certain interest in the concept of a regional custom, and I can agree that there is a concept of particular custom. However, identification of a particular custom, whether it is a bilateral, local or regional, is essentially an internal matter of the group. If the group starts asserting certain legal effects of particular customs vis-à-vis the States outside the group, then it may create a problem similar to the third-party effects of a treaty. It will certainly pose a problem relating to the burden of proof. I believe that our project should be confined to “general customary law” like the ILA London Statement and exclude “particular custom” issues from the present topic.
21. My fifth and final point relates to the “persistent objector doctrine” of Draft conclusion 16. In this light, first of all, I do not believe that this is a question of “identification” of customary international law. It is primarily a question of “application” of certain rules of customary international law. The doctrine has never been sufficiently supported by general State practice nor by the jurisprudence of international courts and tribunals, except for sporadic references made by them in the 1950s and 60s to this notion. (Shinya Murase, “Unilateral Measures and the Concept of Opposability in International Law”, in Murase, International Law: An Integrative Perspective on Transboundary Issues, Sophia University Press, 2011, pp. 214-266.) In essence, the alleged rule of persistent objection is related to the application of the rules of “acquiescence”, “estoppel” and “opposability” (and perhaps “admissibility” as well).
22. I believe generally that giving respect to the idea of a persistent objector rule is inherently dangerous for the general applicability of customary international law. Especially if it begins to occur with increasing frequency, this would certainly lead to the erosion of customary international law itself.
23. If the Special Rapporteur persists with this doctrine, there need to define several requirements for its application: that objection needs to be “persistent”, as well as “consistent”, and that the objection must be “publicly expressed”, and that the objection must be “effectively maintained and accompanied by physical actions”. We also have to decide for what sort of international law rules objections are permitted: for instance, can the fundamental principles of international law be part of the objection by a State in order to derogate from its application? The Special Rapporteur indicates that “subsequent objection” (that is, an objection made after a customary rule is established) is not permissible, but what about a newly independent State which enjoys a “clean slate” for treaties concluded by the predecessor State and then perhaps be permitted to object to those customary rules established before their independence?
24. To conclude, Mr. Chairman, I feel that the ILC should not rush to hasty conclusions on this delicate topic, and that it would not be proper for the Commission to try to finish the first reading of this project in 2016. The topic is certainly addressed comprehensively in the third report, but it is still not ready to be finished in the following year. Specifically, issues relating to emergent rules of customary international law require further discussion.
25. Three years ago when this project started, I mentioned that the work of this topic might end with stating the obvious or stating the ambiguous. Seeing the Draft conclusions adopted so far, I am afraid that I was generally right. I hope that we will have some eye-opening conclusions as part of our future work on this topic. So, while the excellent work of the Special Rapporteur is certainly welcomed, caution and patience should be urged so that this important topic is not rushed too quickly.
26. I agree with sending all the draft conclusions to the Drafting Committee, though as I said, I have some reservation on Conclusion 15 and a strong reservation on Conclusion 16.
Again, I thank the Special Rapporteur for his efforts.
5. Murase Comment on Customary International Law (19 May 2016) (A/CN.4/3301)
1. I would like to thank the Special Rapporteur for his Fourth Report (A/CN.4/695), and I am happy that the topic is finishing its first reading.
2. However, it seems that we still have some important unfinished sub-topics that should not be overlooked in this project before we conclude the first reading. I referred to these points repeatedly in my statements in previous years.
3. Our draft conclusions has been criticized by an author who views that they remain what can be found in any good textbooks on international law and that the ILC’s recipe is only sufficient for the first course [of the dinner, but not sufficient for the main dish]. (Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC,” EJIL Talk!, 3 Dec. 2015. http://www.ejiltalk.org/determining-customary-international-law-the-icjs-methodology-and-the-idyllic-world-of-the-ilc/.) This is from Professor Stefan Talmon’s note on “Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC.” I disagree with Professor Talmon’s characterization of the ILC as “the Idyllic World,” as we all know that the Commission sometimes turns to be quite a “Cruel World.” But, I tend to agree with his substantive points, which I will discuss later.
4. Regarding our unfinished work, first, we have no definition of customary international law, which looks rather odd for a supposedly comprehensive set of conclusions on the subject. Draft conclusion 1 provides for the “scope” and conclusion 2 defines the “basic approach” to be taken, but they are not definitions.
5. Closely related to the definition, what is missing in the draft conclusions is the reference to the fact that “customary international law is binding on all States.” In case of a treaty, if States don’t want to be bound, they can just refrain from being the parties. Each State knows very well, through the negotiating process, what obligations it is going to bear under the treaty. In case of a customary law, by contrast, States have no choice but to comply with it, because it is binding on all States. Besides, a customary law can be created “spontaneously,” as Roberto Ago says, and there is no way to know systematically when, where and how a customary law is created. I believe that this aspect of customary international law should be clearly indicated as a caution to States. I should add that any official comment on customary international law made by a State or by State officials may subsequently be used against that very State unexpectedly in future litigations. So, the legal advisors of States have all the reasons to be extremely cautious.
6. Another point connected with the definition of customary international law is the fact that “it is an unwritten law,” which is not mentioned in the draft conclusions. While unwritten law gives flexibility, it may also create a difficulty in its application. For example, many States require a statutory law to convict a criminal under the rule nulla crimen sine lege by which no conviction can be made by unwritten, customary law.
7. If we envisage this project to be used by judges of domestic courts, we should give some explanation, as its prerequisite, on the status of customary international law in domestic law, which is not mentioned in the draft conclusions either. We should make clear and caution that, since domestic constitutional system varies as to the adoption or transformation of customary international law into domestic law, and therefore, not all the draft conclusions are equally applicable to all States.
8. Another big problem is the word “identification” used in the title and frequently employed in the draft conclusions. Along with the word “identification,” the words “determination,” “ascertainment” and “assessment” are also used. This is rather confusing. If they are to be used interchangeably, that might be fine, but we should be clear about its meaning.
9. Before the title of this topic was changed, it was clear that we deal with “evidence” of customary international law, and there was no problem of ambiguity, as we all know what the problems are for “evidence” in the court proceedings. However, we don’t know what the term “identification” means. Is it the same as “evidence”? Does it include “application” of a rule in question? Is “identification” a pre-application exercise, confined to the intellectual recognition of the existence and content of a rule, or does it include a normative determination?
10. Take an example of the breadth of the territorial waters. Suppose that we live in the world around 1970, when some States still adhered to the 3-mile limit, while other States claimed 4-miles, 6-miles, 9-miles and 12-miles. Suppose that there was a dispute between a State claiming 3-miles and another State claiming 9 miles concerning fishing activities within the latter’s 6-mile zone, on which an international court was requested to determine the customary rule on the breadth of territorial waters. The court must determine, on the basis of the evidence of general State practice and opinio juris submitted by the parties, whether the 3-mile was the rule with respect to the fishing activity in question. This process of determination is not simply an objective exercise of “identification” but also includes a subjective or inter-subjective “interpretation and application” of a rule of customary international law. It certainly concerns the question of evidential value of the State practice and opinio juris, which also raises the complex issue of the burden of proof.
11. If so, where does identification end, and where interpretation and application begin? I raised this question last year in connection with the persistent objector rule, which was not a question of “identification” of customary international law but a question of its “application.” In any event, we need to clarify the meaning of the term “identification.” If we cannot give clear and adequate explanation on this term, perhaps, we should better return to the original title, “evidence of customary international law.”
12. One of the crucial issues in this project is the relationship between State practice and opinio juris. The draft conclusions seem to place these two elements more or less on equal footing. However, I think it is contrary to reality. In reality, we know that there is varying density in State practice and opinio juris depending on the rule that we deal with, and there is a variety of situations where State practice is precarious, conflicting or inconclusive, while the opinio juris of States cannot clearly be established, or there is a discrepancy between State practice and opinio juris. I should also mention that, in the post-war world, opinio juris sometimes precedes State practice. We need to explain all these situations, if we want to make our set of draft conclusions a useful guide to practice.
13. I already made a suggestion on this point in previous sessions that, while we maintain the two-element theory on an abstract level, we should take a more flexible approach to the actual identification of the two elements, perhaps along the lines of Guideline 19 of the ILA London Statement. Under this approach, where State practice is relatively thin, opinio juris may compensate for a relative lack of practice, and vice versa. In this way, State practice and opinio juris assumes supplementary functions to each other. (ILA London Statement on the Formation of Customary International Law, Report of the ILA, 2000, pp.712f., p.751. “19. It appears that, in the conduct of States and international courts, a su8bstantial manifestation of acceptance (consent or belief) by States that a customary rule exists may compensate for a relative lack of practice, and vice versa.”) (my statement in 2014). This approach is also in conformity with the general trend of ICJ decisions, which merely give lip service to the two element requirements in an abstract fashion, while rarely demanding concrete evidence for each of the two elements.
14. Finally, I would like to refer to the question of methodology. Article 15 of the ILC Statute refers to “State practice, precedent and doctrine” to be looked at in our work for codification. Doctrine is particularly important for the present topic, which is predominantly theory-dependent. I hope that the commentaries will refer to academic writings as much as possible in footnotes to each important sentence of the commentaries. Simply putting a bibliography at the end of the commentaries is, I think, far from being appropriate for this topic.
15. With regard to “State practice and precedent” referred to in Article 15 of the ILC Statute, I have been critical of excessive reliance on ICJ jurisprudence to support the commentaries to the draft conclusions on this topic. The primary function of the Court is to settle disputes between the parties, and not to develop international law, while the function of the ILC is to codify and progressively develop international law for the whole world. The Court decisions are sporadic that covers only, say, 5 % of the whole of international law.
16. Besides, the ICJ does not have any coherent methodology with regard to its application of customary international law, as pointed out by Professor Stefan Talmon in his article in the European Journal of International Law (EJIL, 2015). (Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” 26 EJIL 2, 2015.) I refer to this article, because the Special Rapporteur was engaged in the debate with the author in the EJIL forum in November-December last year, which was immensely interesting. (Michael Wood & Omri Sender), “The International Court of Justice and Customary International Law: A Reply to Stefan Talmon,” EJIL Talk!, 30 Nov. 2015; Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC,” EJIL Talk!, 3 Dec. 2015. http://www.ejiltalk.org/determining-customary-international-law-the-icjs-methodology-and-the-idyllic-world-of-the-ilc/.)
17. In this article, Professor Talmon describes that the ICJ, in determining customary international law, has often relied on the traditional inductive approach but sometimes on the deductive method when the relevant State practice and opinio juris are not readily available. In addition to induction and deduction, Professor Talmon also states that the ICJ sometimes makes assertions about the existence and content of customary international law. The ICJ does not have to give any explanation why it thinks that a particular rule is a customary law, because it is not required for the court to give such an explanation under the maxim that “the court knows the law” (jura novit curia). I think that Professor Talmon’s article, well substantiated by abundant material to support his analysis, is quite convincing.
18. Thus, there are still a number of issues left undone for this topic. It would, of course, be nice if we could finish the first reading of this topic this year with the current membership, but if it is difficult to finish this year, I don’t think we should rush.
19. I have no comments on the proposed amendments to the draft conclusions, which should be considered by the Drafting Committee.
Thank you, Mr. Chairman.
6. Murase Comment on Customary International Law, (8 May 2018) (A/CN.4/3397)
1. Mr. Chairman, I was shocked to hear the sad news of the passing away of our dear friend, Irena Gerassimova of the UN Library in Geneva. I would like to join others in expressing my deepest sympathies and compassion.
2. Mr. Chairman, I would like to mention at the outset that, for the past week in this room, we have had the presence of Mr. Vaclav Mikulka, former member and Special Rapporteur of the Commission. He was also the Secretary of the Commission when I joined in 2009. His thoughtful advice and suggestions have always been the source of inspiration and encouragement for my participation in the work of the Commission. I am deeply grateful, and I am sure that all the members of the Commission are grateful, to his continuous support.
3. Mr. Chairman, I would like to thank the Special Rapporteur for his Fifth Report (A/CN.4/717) and his oral introduction yesterday. I congratulate the Special Rapporteur for the great achievements that have been made. I had to be critical sometimes (or many times, in fact!) to the Special Rapporteur’s reports, but it was out of my passion and attachment to the topic, which I hope that Mr. Wood would kindly understand.
4. I regret that some of my views have not been accepted, and I feel bound to repeat in part what I said previously on this topic.
[Lack of definition of CIL]
5. First of all, I should point out the lack of the definition of CIL in this set of draft conclusions. I cannot think of any project of this sort that has no definition of the matter that we are dealing with. We need to define at the outset what is CIL, and what are the essential characteristics of CIL. First, CIL is an unwritten law. While unwritten law gives flexibility, it may also create a difficulty for its application. For instance, there is a problem whether a State can convict a person for a violation of CIL, which may conflict with the rule of nulla crimen (poena) sine lege that requires statutory law in many countries.
6. Closely related to the definition, what is missing in the Draft Conclusions is the reference to the universally binding nature of CIL. Customary international law is binding on all States. In case of a treaty, if States don’t want to be bound, they can just refrain from being the parties. Each State knows very well, through the negotiating process, what obligations it is going to bear under the treaty. In case of a customary law, by contrast, States have no choice but to comply with it, because it is binding on all States. Every time I raised this issue, Mr. Wood responded by saying, “Oh … we have particular custom, which is not universally binding.” But, of course, that is not the point. We are talking about general CIL, and not particular custom.
7. Besides, a customary international law can be created “spontaneously,” as Roberto Ago once characterized it, and there is no way of knowing systematically when, where and how a customary law is created. This is why the efforts by the Secretariat are so important for modernizing the “ways and means for making the evidence of customary international law more readily available”, and we are deeply grateful for the efforts made by the Secretariat for having compiled this valuable document. However, the UN, of course, does not give any timely indication or warning on the spot as to an emergence of a customary rule, like the WHO’s “global early warning system for infectious diseases”! So, the spontaneous character of customary international law remains basically unchanged.
8. I believe that this aspect of customary international law should be clearly indicated as a caution to States. I should add that any official comment on customary international law made by a State or by State officials may subsequently be used against that very State unexpectedly in future litigations. So, the legal advisors of States have all the reasons to be extremely cautious.
[Lack of Definition of “Identification”]
9. Second, there is no definition or explanation of the term “identification”, which is the title of this topic. The only explanation given in the Commentary is that the word “identify” is used interchangeably with the word “determine”. We note that, in addition to “identify” and “determine”, similar terms are also employed in Draft Conclusions, such as “ascertain” and “assess”. Likewise, the words “recognize” and “establish” appear in the Commentaries. So, what is “identification”? Does it include or exclude the process of “interpretation and application” of CIL? We discussed this question in passing in the context of persistent objector doctrine, but regrettably, no definition of the term “identification” has so far been given.
10. In the Commentary to draft guideline 9, paragraph 1, on the “Protection of the atmosphere” that was provisionally adopted last year, we gave an explanation to the term “identification”. (“The term “identified” is particularly relevant in relation to rules arising from treaty obligations and other sources of international law. In coordinating norms, certain preliminary steps need to be taken that pertain to identification, for example, a determination of whether two norms address “the same subject matter”, and which norm should be considered lex generalis or lex specialis, etc. … Moreover, when resorting to rules of customary international law for the purposes of interpretation, identification of customary international law itself is considered a prerequisite.” (Commentary (3) to Guideline 9, paragraph 1, ILC Report 2017, p. 156.)) According to this commentary, identification is an exercise preliminary to, but separate from, the exercise of interpretation and application of law. This distinction may be helpful in the context of the present project.
11. I generally agree with all the Draft Conclusions with proposed amendments. Nonetheless, I have a few brief comments on certain Conclusions.
[Draft Conclusion 3]
12. In the course of identification, however it may be defined, “assessment of evidence” is crucial, as is provided for in Draft Conclusion 3. The rules of evidence relate mainly to facts (fact-finding), but this Conclusion is concerned with the “evidence of law”. Finding the law is primarily the responsibility of the court, as expressed in the maxim “jura novit curia” (the court know the law). However, in actual court proceedings, parties should make every effort to prove the existence and content of the law that they are basing their assertions without waiting for the court’s ruling by proprio motu. As suggested by Spain, therefore, I believe that certain minimum procedural-law issues, including the question of “burden of proof”, may better be addressed in the Draft Conclusion as well as in the Commentary.
[Draft Conclusion 4]
13. Responding to comments from many States, the Special Rapporteur has made amendments to Conclusion 4, by which paragraph 1 has been strengthened for the practice of States, while placing less weight on the practice of international organizations, by adding the word “may”. It seems to me, however, that this addition may not be sufficient. The opening phrase of paragraph 2 states “in certain cases”. What we need seems to be to clarify the content of “certain cases” in the Commentary in order to respond the queries by some States.
[Draft Conclusion 6]
14. The reasons for the amended insertion of the word “deliberate” before “inaction” is understandable in view of the comments made by some States. However, whether certain inaction was “deliberate” or not is quite a subjective decision, and I am not sure if it is proper to add such a subjective element to the notion of “practice”, which is supposed to be determined by objective criteria.
[Draft Conclusion 8]
15. The Special Rapporteur’s proposal for amendment is to change the term “consistent” to “virtually uniform”. If I understand it correctly, this amendment does not change the threshold of generality criterion from the first reading draft? The term “consistent” comes from the Nicaragua judgment, while the words “virtually uniform” comes from the North Sea Continental Shelf judgment. The Nicaragua judgment employed the words “in general, consistent with” (or “generally consistent”) (para. 186 of the judgment), but the Draft Conclusion of the first reading used only “consistent” and not “generally consistent”. I understand that he term “virtually” somewhat lowers the threshold than simply stating “uniform”, and I have gathered that, at the end of the day, there has substantially been no change in the standard of requirement, whatever that is in this context.
16. With regard to the issue of “specially affected States”, I am the one who opposed the insertion of this notion, which was the opinion of the majority in the Commission, and I think it was a well-balanced solution that the issue is explained only in the Commentary.
[Draft Conclusion 15]
17. Mr. Park yesterday failed to include me in the list of persistent objectors to persistent objector rule, but I was not in favor of this Conclusion. The reason for my objection was that “persistent objector” is not a question of “identification” of customary international law, but it is a question of its “application”. However, I am not re-opening the issue. I would only like to state that I am in favor of inserting the “without prejudice” clause as a new paragraph 3 on jus cogens.
[Draft Conclusion 16]
18. I am not in favor of including this Conclusion either, and as I said before, the present topic should be limited to the issues of “general” custom, not of “particular” custom, though I am not re-opening the issue here either. Some States considered that the expression “or others” (after the words, regional, local) should be deleted, which I would agree in order not to lead to proliferation of particular customs. Certain delegations (Greece and Russia) expressed a concern on the effect of particular custom on third States. I believe, as I said before, that we need a new paragraph providing for the pacta teritiis rule, comparable to Article 34 of the VCLT, with a Commentary referring to the exceptions to the rule, if any. The central question in this context, as I see it, is the “opposability” of a particular custom to third States.
19. As to the final form of the product, Mr. Chairman, it seems that I am the only member of the Commission who considers Conclusions rather odd. Allow me however to make my last attempt to save the Commission!
20. Members of the Commission and those of the Sixth Committee are now so much used to this title, but people outside the Commission and the Committee have entirely different reaction. I teach at Peking University, Renmin and other universities the course on International Lawmaking, in which I deal with ILC topics. When I showed the Conclusions to law students (graduate students), saying that these were what the ILC had concluded, the reaction of students was: “So, what?” I am afraid that the reaction of the judges of national courts would be the same.
21. I believe that the function of the Commission is more than clarification. It is a normative organ, and Conclusions, as the name of our final product, does not convey this function to outside world. It conveys a misleading image of the Commission. Naming of our product is a serious matter, as outsiders will define the role of our Commission. I think the Commission is making a big mistake. They will say, “Oh, these are just studies that the ILC members have been doing at their pastime”.
22. Mr. Chairman, there is still time to change the title for Mr. Nolte’s topic to Guidelines, because the Drafting Committee discussion has just started. We could change the title of the present topic and that of Mr. Tladi. But, if I am still the only one to propose this change, I will not press. It is your decision. But, I am so concerned with the “proliferation” of Conclusions in the Commission. I believe that Mr. Wood and the Commission should consider Gresham’s law of the 16th century England: “Bad money drives out good money”.
[Lack of citations/quotations of academic literature]
23. Mr. Chairman, before I conclude, I would like to make my final point, that is, the lack of citations/quotations of academic literature in the Commentaries. Many of us in the Commission have repeatedly raised this concern both in the Plenary and in the Drafting Committee as well as in the informal Working Group. I think this is a very serious question. CIL is a “theory-dependent topic”, as once cautioned by the British Institute of International Law. Academics are meticulous about citations. It bothers me a lot that there are no footnotes quoting academic literature in the Special Rapporteur’s reports, nor in the Commission’s Commentaries. Mr. Wood has given a long, exhaustive Bibliography on CIL, which I appreciate very much, but I must stress that Bibliography cannot be a justification for non-citation of literature.
24. Forty years ago, in 1978, an associate professor of the University of Tokyo Faculty of Law was fired for plagiarism. His article on legal history had a few paragraphs without quoting the original author. He tried to justify it by the bibliography that he had supplied at the end of his article, but of course this defense was not accepted.
25. Just to give an example, the Commentary refers to the theory of “instant custom” but Professor Bin Cheng’s famous article is not quoted anywhere. There have been several scholars who discussed this question in detail, and at least, the writings of Maurice Mendelson and Mejia-Lemos should be cited.
26. Another example is the concept of opposability employed in Conclusion 15, articles on which are few. Professor J.G. Starke was the first writer who shed light on the concept. Professor Soji Yamamoto and I wrote on the concept extensively.
27. In addition, the Special Rapporteur himself explicitly refers to scholarly writings in some parts of the Commentaries, but with no citations thereof. For instance, Draft Conclusion 1, Commentary (2), discussing the question of terms for CIL, refers to “scholarly writings”. However, no citations were given (p. 249). (DC 1 Commentary (2): “Other terms that are sometimes found in legal instruments (including constitutions), in case law and in scholarly writings include “custom”, “international custom”, and “international customary law” as well as “the law of nations” and “general international law” (249)). Reference to “scholarly writings” and “writers” also appear in other commentaries, including DC 2 Commentary (1) (DC 2 Commentary (1): “This methodology, the “two element approach”, underlies the draft conclusions and is widely supported by States, in case law, and in scholarly writings.), DC 2, Commentary (4), (DC 2 Commentary (4): “While writers have from time to time sought to devise alternative approaches to the identification of customary international law, emphasizing one constituent element over the other or even excluding one element altogether, such theories are not supported by States or in the case law.”) DC 6 Commentary (2) (DC 6 Commentary (2): “While some writers have argued that it is only what States “do” rather than what they “say” that may count as practice for purposes of identifying customary international law, it is now generally accepted that verbal conduct (whether written or oral) may count as practice; action may at times consist solely in statements, for example a protest by one State addressed to another.”) and DC 15, Commentary (4), etc. (DC 15 Commentary (4): “While there are differing views, the persistent objector rule is widely accepted by States and writers as well as by scientific bodies engaged in international law.” (356).) There must be many other places that citations are warranted, and many other scholars/writers need to be quoted in the Commentaries. (For instance, Commentary (5) to Draft Guideline 2 on “deductive approach” should cite: Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” 26 EJIL 2, 2015. (Footnote 259 of the Commentary should refer to Gulf of Maine case.))
28. This is not just a matter of courtesy or respect to academic contributions (the lack of which has unfortunately been apparent in this topic). I think this omission of citations is a serious problem. If this practice of non-citation proliferates in the Commission, I am afraid that it will be another case of bad money driving out good.
29. If we claim that ILC documents are part of the “pronouncements of the competent expert body, or teachings of the most highly qualified publicists”, I believe that we should remedy the present situation by all means before the final adoption of the Commentaries in August, in order to avoid any embarrassment. Needless to say, the Commentaries are the product of the Commission. I sincerely hope that the Commission gives serious consideration to this question.
30. I am in favor of sending the Draft Conclusions to the Drafting Committee, and I support the recommendation for the General Assembly as proposed by the Special Rapporteur.
Thank you, Mr. Chairman.