{"id":20955,"date":"2023-11-17T08:00:39","date_gmt":"2023-11-17T07:00:39","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=20955"},"modified":"2023-11-17T13:31:09","modified_gmt":"2023-11-17T12:31:09","slug":"editors-response","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/editors-response\/","title":{"rendered":"Editors\u2019 Response"},"content":{"rendered":"

We would like to thank the editors of the V\u00f6lkerrechtsblog<\/em> for organising this symposium on The Theory, Practice, and Interpretation of Customary International Law<\/em><\/a>, and the commentators for thoughtfully and critically engaging with the various themes of our volume. Naturally, as is always the case, the word limit restrictions of this medium require a rather selective engagement with the issues and queries raised by our commentators.<\/p>\n

In addition, we felt constrained in that, as editors, we could not possibly justify responding to critiques of our other authors\u2019 points. This book brings together very different views and approaches on customary international law (CIL) and the three editors are no exception. We have diverging views on many points, including on interpretability, and our focus lies on different aspects of the topic. Therefore, we each wrote a section of this post which, we hope, will provide readers with a more nuanced response than if we had amalgamated our views.<\/p>\n

1. CIL in the Structure of International Law (Kammerhofer)<\/strong><\/p>\n

For me, the most important question about CIL is the most basic one: why is it a \u2018source of international law\u2019 \u2013 what does \u2018source of law\u2019 even mean \u2013 and how does it fit in the overall structure of the international legal order? For some colleagues, this kind of question may appear superfluous, something for the inhabitants of ivory-towers to ponder over, but certainly of no interest to courts, foreign ministries or even to the ILC. Some others will be attracted to this type of question, but for the wrong reason: as an excuse to trot out their cultural-philosophical musings or their favourite moral or ideological views, all the while believing that they conduct meaningful legal-theoretical research. Only a third group, of whom the authors of our volume are certainly members, will realise that these questions \u2013 if asked in the right way and answered using the right method \u2013 are relevant: they are relevant for doctrinal arguments about CIL, they are relevant to legal practice and they are relevant as an attempt to advance scholarship. The members of this third group do not, of course, all follow the particular theoretical approach which I apply to the question, the Pure Theory of Law (Kelsen, Merkl) and, since I would not want to ask them to do so, I can only speak for myself.<\/p>\n

My approach is based on the view that the scholarship of international law \u2013 a Wissenschaft<\/em> in this very Germanic sense, with its highly ambitious attempt to conduct legal scholarship in the most stringent manner, reminiscent of the natural sciences (but not as<\/em> natural science) \u2013 has the primary task of finding out what \u2018the law\u2019 says. How trivial, one might respond; how very much an exercise in rule-accountancy and ledger-keeping! But it is neither trivial nor are many of the function of a claimed true or \u2018higher\u2019 jurisprudence (Jhering<\/a>) scholarly in the strict sense. The primary point of legal scholarship is to advance the structural analysis<\/em> of (one\u2019s chosen corner of) the law, the analysis of the structure and interaction of norms. Elsewhere<\/a>, I have likened this enterprise to a \u2018mechanics\u2019 of norms: nomostatics for norms at rest and nomodynamics for norms in movement (e.g. Kelsen<\/a>, pp. 3-109, 110-162).<\/p>\n

In the jargon of my chosen approach, this is the Stufenbau<\/em>, the hierarchy (a better word is: structure) of norms in complex legal orders. And thus, we return to the fields tilled by doctrinal international legal scholarship, for what is this question but the one which every budding international lawyer asks on day one of their training: what are the sources of international law? Using the Stufenbau<\/em> analysis, we turn to this question with fresh eyes; we no longer rely blindly on the orthodox \u2018dogmatic stop\u2019 usually employed \u2013 \u2018It\u2019s Article 38 ICJ Statute, stupid!\u2019 \u2013 nor do we attempt to base our source-theory on pie-in-the-sky thinking (\u2018it might be nice if the sources were based on x, hence x!\u2019).<\/p>\n

Rather, and this holds for both the larger question of the number of sources as well as for the question of how CIL in particular is created, the answer of the Stufenbau<\/em> theory is and must be: what does the law say? The sources are but nodes in the network of norms that is international law \u2013 international law is connected via so-called \u2018empowerment norms\u2019, norms authorising the creation of further norms. Each of these norms (and they may be highly complex) not only authorises, but in doing so prescribes certain conditions for the creation of that type of subordinate norm. The point is, then, that the sources of law are not determined by one\u2019s philosophy or ideology nor based on fact alone [see, however, the so-called \u2018historically first constitution\u2019 (Kelsen<\/a>, p. 200)], but by the law itself: law regulates its own creation and must do so, because if it did not, the oughtness of norms would collapse.<\/p>\n

That sounds sensationalist, but the point is easily made in more specific terms: it is a norm of international law which tells us that we require state practice and opinio iuris<\/em> to create CIL, not the ICJ, nor the communis opinio doctorum<\/em> nor state acceptance nor a philosophical precept. And if that rule is shaped differently, if, for example state practice were to mean a different thing (ICRC<\/a>) or if opinio iuris<\/em> were to suffice (Cheng<\/a>, p. 548), then the legal requirements are different. Yet, the point of the Stufenbau<\/em> theory is this: we cannot posit or assume such a difference, because we felt that it would be better or more convenient if it were so \u2013 or felt that international law could not work otherwise. Rather, we must<\/em> prove that the law, in this case the law on law-making of CIL, is shaped that way, just like we routinely do as legal scholars or lawyers in other contexts. There is no categorical difference between proving that there is a rule allowing innocent passage in international law and that CIL is a source of international law.<\/p>\n

2. Non-compliance and (mis)interpretation as catalysts for change in CIL (Araj\u00e4rvi)<\/strong><\/p>\n

Instances of State conduct inconsistent with a given rule should generally<\/em> have been treated as breaches of that rule, not as indications of the recognition of a new rule (Nicaragua v. United States of America<\/em><\/a>, para. 186).<\/p>\n

My short interjection draws on the relationship of non-compliant practice, (mis)interpretation, and change in CIL, and poses some questions for further consideration.<\/p>\n

The reasons for entering the interpretative process in the first place \u2013 usually \u2013 arise from the need to determine whether an act constitutes a breach of international law. More precisely, in determining a breach of CIL, oftentimes we must look at the specific elements of CIL and how they can and should be interpreted. Full and uncontested compliance with international law rarely, if ever, induces the need for interpretation. Sometimes, the interpreter may \u2013 accidentally or not \u2013 engage in misinterpretation of CIL and its elements. Nonetheless, as I argue, both \u201cinterpretation\u201d and \u201cmisinterpretation\u201d \u2013 however subjective the line between the two may be \u2013 can act as catalysts for change in international law.<\/p>\n

In my chapter \u2018Misinterpreting Customary International Law: Corrupt Pedigree or Self-Fulfilling Prophecy?\u2019, I introduce three categories of misinterpretation:<\/p>\n

    \n
  1. The extension (or reduction) of CIL through exitus acta probat<\/em> \u2013 the end-justifies-the-means approach \u2013 where analysis of the elements of CIL is modified to fit the desired outcome;<\/li>\n
  2. The negligent interpretation where methodology\/ies of interpretation are overlooked in full or in part;<\/li>\n
  3. The fallacious method of misinterpretation, where the interpreter finds false CIL or considers flawed or incomplete evidence of its elements.<\/li>\n<\/ol>\n

    Change in customary international law can be brought on by (mis)interpretation, non-compliance, or both. (Mis)interpretation and non-compliance can exist in a cyclic relationship (but neither is a prerequisite for the other): Interpretation \u2013 or misinterpretation \u2013 may stem from non-compliance and can lead to non-compliance, and vice versa<\/em>. In this sense, (mis)interpretation can complement non-compliance: a non-compliant act may be incorrectly interpreted \u2013 under any of the three above-mentioned categories \u2013 as being in compliance with the existing rules of international law. Then, this flawed interpretation could be exploited to establish opinio juris<\/em> to supplement the practice (should the act sprout into actual practice), resulting in change in CIL.<\/p>\n

    On occasions, all this may occur organically with little strategy or forethought, but sometimes \u2013 starting from the act of (non-)compliance to the interpretation of CIL \u2013 there is a cognisant push for a change of a rule of international law, or at a metalevel, for the interpretative practice. How, then, to conceptualise a non-compliant act that is committed with the knowledge of the law and with the explicit or implicit intention of driving a normative change? How (mis)interpretation affects the future compliance or non-compliance? Further, with a view of the cyclic relationship between non-compliance and (mis)interpretation, if and how may these translate into practice and opinio juris<\/em>, and hence, into CIL?<\/p>\n

    Much has been written in the past years on how normative disputes and contestations as bringing on change in international law, and I would align this short reflection within that discourse: in the best case, there may be exist the potential for improving specific norms and the system as a whole, while simultaneously eroding those that may be deemed out-dated or ineffective. Nonetheless, we should not lose sight of the dangers: especially in CIL, change is a long process \u2013 like a path forming in a forest \u2013 and forcefully accelerating or diverting this path can push the boundaries to the point we no longer can recognise the source of law or situate its interpretative rules.<\/p>\n

    3. Interpretation of CIL (Merkouris)<\/strong><\/p>\n

    Unwritten does not mean non-interpretable.<\/strong> One of the main claims made against the interpretability of CIL is that it is because it is unwritten (see also Bjorge\u2019s contribution, who critically refers to the problems of such arguments). I have elsewhere<\/a> addressed the fallacies of this and similar arguments. Suffice it to repeat here, that as Alland has very eloquently put it, every rule, even an unwritten one has a \u2018lexical garment\u2019, a \u2018v\u00eatement lexique\u2019 (Alland<\/a>, p. 83). One of the main points made in the contributions of the edited volume relating to CIL interpretation is that CIL interpretation seems to be occurring both domestically and internationally. In fact, the practice is so pervasive that one can find instances of acceptance of the interpretation of unwritten instruments not only in domestic and international case-law, but in statements of States<\/a> and also in the works of the International Law Commission (ILC). See, for instance:<\/p>\n