University of North Carolina-Chapel hill School of law Public Law Legal Theory Research Paper no 02-16 NDEL AMERICAN JUDGES AND INTERNATIONAL LAW A Mark Weisburd Working paper, to be submitted for publication(2002) Fullindexofresearchpapersavailableat_http://www.lawuncedu/faculty/researchpapers/ Visit unc School of law at wwwlaw uncedu http:/ssrn.com/abstractid=338440 CAROLINA
University of North Carolina – Chapel Hill School of Law Public Law & Legal Theory Research Paper No. 02-16 AMERICAN JUDGES AND INTERNATIONAL LAW A. Mark Weisburd Working paper, to be submitted for publication (2002). Full index of research papers available at http://www.law.unc.edu/faculty/researchpapers/. Visit UNC School of Law at www.law.unc.edu. http://ssrn.com/abstract_id=338440
AMERICAN JUDGES AND INTERNATIONAL LAW Introduction I. The Nature of Customary International Law II. The Traditional American Approach to Customary International Law IlL. Current American Approaches to Determining the Content of Customary International law A. The Concept of Jus Cogens B. The Courts of Appeals and Jus Cogens C. Critique of the Jus Cogens Decisions of the Courts of Appeal 1. Articles Basing Legal Rules on Sources Other than State Practice.. 40 2. The restatement 3. Decisions of American Courts 4. Decisions of International Courts IV. A Suggested Alternative V. Concl
AMERICAN JUDGES AND INTERNATIONAL LAW Introduction ............................................................1 I. The Nature of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. The Traditional American Approach to Customary International Law . . . . . . . . . . . 12 III. Current American Approaches to Determining the Content of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The Concept of Jus Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 B. The Courts of Appeals and Jus Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C. Critique of the Jus Cogens Decisions of the Courts of Appeals . . . . . . . . . . 34 1. Articles Basing Legal Rules on Sources Other than State Practice . . 40 2. The Restatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 3. Decisions of American Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 4. Decisions of International Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 IV. A Suggested Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
AMERICAN JUDGES AND INTERNATIONAL LAW A Mark Weisburd Introduction More and more frequently, American courts find themselves dealing with cases that raise ssues under public international law. These cases may involve claims against foreign governments,claims based on acts by foreign individuals, or claims against corporations alleged to have cooperated with foreign governments. While such claims may depend international law( CIL). And claims so based raise a probley y ey also rely on customary substantively on treaties or on federal statutes, very frequently they also rely on customary acknowledges the support of the North Carolina Law Foundation for this papr. F Professor of Law, University of North Carolina at Chapel Hill. The author gratefully E. g, Siderman de blake v Repub. of Argentina, 965 F 2d 699(9th Cir 1992) E. g, Hilao v. Estate of Marcos, 103 F 3d 767(9 Cir. 1996) E. g, Doe v Unocal Corp, 110 F Supp 2d 1294( C D. Cal. 2000) Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of the law of the United States" as that phrase is used in Article Ill of the Constitution, see Filartiga v. Pena-Irala 630 F2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F2d 493, 502(9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972(1993) Harold H. Koh, Is International Law Really State Law?, 111 HARv. L REv. 1824(1998): Gerald L Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L REV. 371(1997); Beth Stephens, The Law of Our Land Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393(1997),a number of writers have challenged this position, see Ernest A. Young, Sorting Out the debate Over Customary International Law, 42 VA J INT'L L 365, 462-63(2002); Daniel J. Meltzer Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA J INT'L L 513, 519(2002); Curtis A. Bradley Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L REv. 815(1997): AM Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J INT'L L 1(1995) Arthur M. Weisburd. The Executive Branch and International Law. 41 VAND L REV. 1205
1 * Professor of Law, University of North Carolina at Chapel Hill. The author gratefully acknowledges the support of the North Carolina Law Foundation for this paper. 1 E.g., Siderman de Blake v. Repub. of Argentina, 965 F.2d 699 (9th Cir. 1992) 2 E.g., Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). 3 E.g., Doe v. Unocal Corp., 110 F.Supp.2d 1294 (C.D. Cal. 2000). 4 Actually, they raise a whole host of problems. Perhaps the most basic is, what is the place of customary international law in American law? While there is considerable judicial and scholarly authority for the proposition that customary international law is part of “the law of the United States” as that phrase is used in Article III of the Constitution, see Filartiga v. Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 978 F.2d 493, 502 (9th Cir. 1992), cert. denied sub nom. Marcos-Manotoc v. Trajano, 508 U.S. 972 (1993); Harold H. Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 FORDHAM L. REV. 393 (1997), a number of writers have challenged this position, see Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 VA. J. INT’L L. 365, 462-63 (2002); Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA. J. INT’L L. 513, 519 (2002); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997); A.M. Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J. INT’L L. 1 (1995); Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205 AMERICAN JUDGES AND INTERNATIONAL LAW A. Mark Weisburd* Introduction More and more frequently, American courts find themselves dealing with cases that raise issues under public international law. These cases may involve claims against foreign governments,1 claims based on acts by foreign individuals,2 or claims against corporations alleged to have cooperated with foreign governments.3 While such claims may depend substantively on treaties or on federal statutes, very frequently they also rely on customary international law (CIL). And claims so based raise a problem.4
2 To understand the difficulty it is helpful to start with the concept of CIL. The Restatement(Third)of Foreign Relations Law("Restatement")describes customary international law as resulting"from a general and consistent practice of states followed by them from a sense of legal obligation. [In this article, the term"state "will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries. I Although this article will take issue with a number of assertions made in the restatement this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of cil. how does the court determine at the most basic level what the various governments of the world have done regarding a particular matter? What counts as "practice"? How does one determine whether a practice is"general"? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by american and international courts -and herein lies the difficulty. For, with respect to some areas of CIL- particularly the law of human rights, the aspect of CIL most frequently considered in American courts-neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIl from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this cil (1988); PhillipR. Trimble, A Revisionist View of customary International Law, 3 UCLAL REV 665(1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany Claims Conf, 250 F 3d 1145, 1153 n 4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article and is therefore not addressed RESTATEMENT (THIRD)OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S 102(2)(1987)(hereafter cited as RESTATEMENT
2 (1988); Phillip R. Trimble, A Revisionist View of Customary International Law, 3 UCLA L. REV. 665 (1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany & Claims Conf., 250 F.3d 1145, 1153 n.4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article, and is therefore not addressed. 5 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (hereafter cited as RESTATEMENT). To understand the difficulty it is helpful to start with the concept of CIL. The Restatement (Third) of Foreign Relations Law (“Restatement”) describes customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”5 [In this article, the term “state” will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries.] Although this article will take issue with a number of assertions made in the Restatement, this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of CIL. How does the court determine, at the most basic level, what the various governments of the world have done regarding a particular matter? What counts as “practice”? How does one determine whether a practice is “general”? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by American and international courts - and herein lies the difficulty. For, with respect to some areas of CIL - particularly the law of human rights, the aspect of CIL most frequently considered in American courts - neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIL from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this CIL
This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or in some cases, non-existent. More fundamentally, it essentially converts law professors into philosophe kings, imposing their ideas of what the law should be under the guise of describing the laws content The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. Cil differs from domestic law in a number of important respects First, in the Cil system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law, while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which
3 This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or, in some cases, non-existent. More fundamentally, it essentially converts law professors into philosopher kings, imposing their ideas of what the law should be under the guise of describing the law’s content. The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law. I. The Nature of Customary International Law The more a lawyer trained in American law reflects on the concept of CIL, the more peculiar that concept appears. CIL differs from domestic law in a number of important respects. First, in the CIL system, there is no sovereign with authority to control the actions of the independent states who are the subjects of the law; while states are free to subordinate themselves to such an authority, they have rarely done so. Likewise, there is no court with compulsory jurisdiction over states. Instead of proceeding from a sovereign, the law which
controls the actions of states proceeds from the group of entities who are the law's primary subjects-that is, governments. Not only are the subjects of the law also the law makers; they are also the law enforcers. In the American system, in contrast, law proceeds either from specific basic documents(constitutions)or more commonly from the actions of relatively small groups of designated individuals, be they legislators, administrators, or judges, who have the legal capacity to constrain every one in society. Likewise, law enforcement is a specialized function carried out by a limited number of people A second difference between Cil and domestic law lies in the formality of the domestic law-making process. A legislature acts only when it is formally in session and according to the limitations of the relevant constitution and its own rules. Informal actions by legislators acting as individuals thus have no impact on the law -if, by coincidence, every member of a states legislature happened to be simultaneously exceeding the speed limit, no one would argue that the state's traffic laws had been altered CIL, however, is derived from the individual actions of governments, which actions may be undertaken in any type of setting and for reasons having little to do with the impact of those actions on international law. For example, when the U.S. Supreme Court upheld the constitutionality of sentencing a person to death for a crime committed prior to that persons seventeenth birthday, that action amounted to an instance of state practice which weakened any argument that Cil forbids governments to impose the death penalty for crimes committed when Standford v. Ky, 492 U.S. 361(1989
4 6 Standford v. Ky., 492 U.S. 361 (1989). controls the actions of states proceeds from the group of entities who are the law’s primary subjects - that is, governments. Not only are the subjects of the law also the law makers; they are also the law enforcers. In the American system, in contrast, law proceeds either from specific basic documents (constitutions) or more commonly from the actions of relatively small groups of designated individuals, be they legislators, administrators, or judges, who have the legal capacity to constrain every one in society. Likewise, law enforcement is a specialized function carried out by a limited number of people. A second difference between CIL and domestic law lies in the formality of the domestic law-making process. A legislature acts only when it is formally in session and according to the limitations of the relevant constitution and its own rules. Informal actions by legislators acting as individuals thus have no impact on the law - if, by coincidence, every member of a state’s legislature happened to be simultaneously exceeding the speed limit, no one would argue that the state’s traffic laws had been altered. CIL, however, is derived from the individual actions of governments, which actions may be undertaken in any type of setting and for reasons having little to do with the impact of those actions on international law. For example, when the U.S. Supreme Court upheld the constitutionality of sentencing a person to death for a crime committed prior to that person’s seventeenth birthday,6 that action amounted to an instance of state practice which weakened any argument that CIL forbids governments to impose the death penalty for crimes committed when
the perpetrator was as young as 16. However, nothing in the opinion of the Court suggested any concern with or even awareness of the impact of its decision on CIL. A third, and especially important, difference between CIL and domestic law in the United States is that violations of CIL may lead, not only to some form of legal sanction, but also to a change in the content of the law. Such a result is so contrary to that which would obtain under a domestic legal system that it requires careful explication. It must be stressed that this outcome is a necessary consequence of the way in which CiL is made in the first place. As pointed out above, CiL derives from the practice of states, even when that practice is not, in the first instance, undertaken because of its legal implications. Hence, any act by a government may simultaneously be analyzed under existing Cil and as what amounts to a legislative act. Thus, acts conforming to existing rules are not simply unremarkable instances of obedience to law they are examples of practice reinforcing that law. Similarly, acts contrary to existing law can be characterized as violations of that law but can also be seen as what amount to votes either to repeal"the existing rule, or to modify that rule in some way. To be sure, it is frequently asserted that violations of cil have no effect on the content of that law, just as domestic law is unaffected by acts violating it. Such assertions, however rely on a false analogy Private Both the opinion of the court and the dissent in Standford take note of the practice of other countries with respect to execution of juveniles, with the court characterizing such practice (Brennan. J, dissenting). Neither opinion, however, speaks in terms of Cll at 389-90 as irrelevant, id. at 369, n 1, and the dissent giving weight to that practice, id Professor D'Amato has also discussed this phenomenon, see Anthony D'Amato, The Concept of Human Rights in International Law, 82 COLUM. L REv. 1110(1982); Anthony D'Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 93-94(1971)(hereinafter cited as D'Amato, CONCEPT OF CUSTOM) Filartiga, supra n 4, at 884 n. 15: Louis Sohn, The International Law of Human Rights A Reply to Recent Criticism, 9 HOFSTRA L REV. 347, 350(1981)
5 7 Both the opinion of the court and the dissent in Standford take note of the practice of other countries with respect to execution of juveniles, with the court characterizing such practice as irrelevant, id. at 369, n.1, and the dissent giving weight to that practice, id. at 389-90 (Brennan, J., dissenting). Neither opinion, however, speaks in terms of CIL. 8 Professor D’Amato has also discussed this phenomenon, see Anthony D’Amato, The Concept of Human Rights in International Law, 82 COLUM. L. REV. 1110 (1982); Anthony D’Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 93-94 (1971) (hereinafter cited as D”Amato, CONCEPT OF CUSTOM). 9 Filartiga, supra n. 4, at 884 n. 15; Louis Sohn, The International Law of Human Rights: A Reply to Recent Criticism, 9 HOFSTRA L. REV. 347, 350 (1981). the perpetrator was as young as 16. However, nothing in the opinion of the Court suggested any concern with or even awareness of the impact of its decision on CIL.7 A third, and especially important, difference between CIL and domestic law in the United States is that violations of CIL may lead, not only to some form of legal sanction, but also to a change in the content of the law.8 Such a result is so contrary to that which would obtain under a domestic legal system that it requires careful explication. It must be stressed that this outcome is a necessary consequence of the way in which CIL is made in the first place. As pointed out above, CIL derives from the practice of states, even when that practice is not, in the first instance, undertaken because of its legal implications. Hence, any act by a government may simultaneously be analyzed under existing CIL and as what amounts to a legislative act. Thus, acts conforming to existing rules are not simply unremarkable instances of obedience to law; they are examples of practice reinforcing that law. Similarly, acts contrary to existing law can be characterized as violations of that law, but can also be seen as what amount to votes either to “repeal” the existing rule, or to modify that rule in some way. To be sure, it is frequently asserted that violations of CIL have no effect on the content of that law, just as domestic law is unaffected by acts violating it.9 Such assertions, however, rely on a false analogy. Private
persons violating domestic law do not act as legislators when they act; with regard to CIL, lowever, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law An example of this phenomenon is provided by the law of the sea. The 1958 Conventio on the High Seas described itself as codifying CIL. It defined the "high seas" as including all waters seaward of a states territorial sea, and guaranteed freedom of fishing to all states in this area. Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that Cil had been altered. That is, actions violating CIL(and, for that matter, a treaty) cumulated to change the law 3 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state? 10 Convention on the High Seas, opened for signature Apr 29, 1958, 13 UST2312 T. L.A.S. No 5200. 450 U.N.T.S. 82 nble 12 Id. arts. 1.2 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International La: The Problem of Treaties, 21 VAND. J INT'L L. 1 17-19.(1988)
6 10 Convention on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. 11 Id., preamble. 12 Id., arts. 1, 2. 13 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International Law: The Problem of Treaties, 21 VAND. J. INT’L L. 1, 17-19. (1988). persons violating domestic law do not act as legislators when they act; with regard to CIL, however, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law. An example of this phenomenon is provided by the law of the sea. The 1958 Convention on the High Seas10 described itself as codifying CIL.11 It defined the “high seas” as including all waters seaward of a state’s territorial sea, and guaranteed freedom of fishing to all states in this area.12 Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that CIL had been altered. That is, actions violating CIL (and, for that matter, a treaty) cumulated to change the law.13 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state?
I suggest that one way to address these issues is to ask why a customary practice ought to be law. That is, is there some non-arbitrary justification for ascribing binding effect to a general and consistent practice? Perhaps the most plausible answer to this question is Professor Starke's Recurrence of the. . practice tends to develop an expectation that, in similar future situations, the same conduct or the abstention therefrom will be repeated that the conduct or the abstention therefrom is a matter both of right ando ates When this expectation evolves further into a general acknowledgment by states obligation, the transition. . to custom may be regarded as consummated If, then, the rationale for treating custom as law is that states ought to be able to rely on the assumption that other states will behave in the future as they have in the past, it would seem to follow that behavior would count as practice if it is of a sort as would give rise to reasonable expectations that it would be followed in future similar situations. Further, if an act which would, other things equal, give rise to such expectations, is contradicted by behavior which is a better predictor of future action, it would seem that it would be unreasonable to expect that future conduct would conform to the act rather than to the contradictory behavior These considerations facilitate addressing a particularly important issue in connection with CIL: what effect on that body of law should be accorded to actions which may be seen as proxies for behavior? For example, suppose State A announces that it feels constrained by CiL to behave in accord with Rule X. Standing alone, that announcement may well support a reasonable expectation that State A will abide by rule X in the future, and should count as an item of practice supporting the existence of rule X. However, if it is clear that State a in fact systematically violates Rule x, it would seem that the net effect of State As actions is to 14 J.G. Starke, INTRODUCTION TO INTERNATIONAL LAW 38-39(10th ed 1989)
7 14 J.G. Starke, INTRODUCTION TO INTERNATIONAL LAW 38-39 (10th ed. 1989). I suggest that one way to address these issues is to ask why a customary practice ought to be law. That is, is there some non-arbitrary justification for ascribing binding effect to a general and consistent practice? Perhaps the most plausible answer to this question is Professor Starke’s: Recurrence of the . . . practice tends to develop an expectation that, in similar future situations, the same conduct or the abstention therefrom will be repeated. When this expectation evolves further into a general acknowledgment by states that the conduct or the abstention therefrom is a matter both of right and of obligation, the transition . . . to custom may be regarded as consummated.14 If, then, the rationale for treating custom as law is that states ought to be able to rely on the assumption that other states will behave in the future as they have in the past, it would seem to follow that behavior would count as practice if it is of a sort as would give rise to reasonable expectations that it would be followed in future similar situations. Further, if an act which would, other things equal, give rise to such expectations, is contradicted by behavior which is a better predictor of future action, it would seem that it would be unreasonable to expect that future conduct would conform to the act rather than to the contradictory behavior. These considerations facilitate addressing a particularly important issue in connection with CIL: what effect on that body of law should be accorded to actions which may be seen as proxies for behavior? For example, suppose State A announces that it feels constrained by CIL to behave in accord with Rule X. Standing alone, that announcement may well support a reasonable expectation that State A will abide by Rule X in the future, and should count as an item of practice supporting the existence of Rule X. However, if it is clear that State A in fact systematically violates Rule X, it would seem that the net effect of State A’s actions is to
undermine the rule. That is. if State A's policy is in fact to violate rule x. one could not reasonably expect it to conform to the rule simply because it made a dishonest statemen To be sure, the International Court of Justice(ICJ)in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v United States), (Nicaragua v United States" )stated that If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule 6 As will discussed below, the ICJ's assertions regarding legal principles in its judgments are not binding on states generally, but even if the quoted language is considered simply on its merits it is hard to defend. Why do hypocritical statements confirm a legal principle if the law-making process is one in which legal principles derive from conduct creating g reasonable expect Surely, if it is known that a given state says one thing but does another, it would hardly be reasonable to rely on what the states says when forming expectations Suppose, however, that the proxy for behavior is not simply a statement, but adherence a treaty requiring certain behavior -how should this affect CIL?(Of course, regardless of its status as CIL, a rule established in a treaty is binding on states parties to the treaty. The question here is whether such a rule's incl a treaty should count as practice establishing a CiL obligation). In fact, it has long been established that states often rely on treaties as evidence of 151986ICJ.14 la.at98,186 17 See, discussion infra at nn. 207-232
8 15 1986 I.C.J. 14. 16 Id. at 98, ¶ 186. 17 See, discussion infra at nn. 207-232. undermine the rule. That is, if State A’s policy is in fact to violate Rule X, one could not reasonably expect it to conform to the rule simply because it made a dishonest statement. To be sure, the International Court of Justice (ICJ) in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States),15 (“Nicaragua v. United States”) stated that If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule.16 As will discussed below, the ICJ’s assertions regarding legal principles in its judgments are not binding on states generally,17 but even if the quoted language is considered simply on its merits, it is hard to defend. Why do hypocritical statements confirm a legal principle if the law-making process is one in which legal principles derive from conduct creating reasonable expectations? Surely, if it is known that a given state says one thing but does another, it would hardly be reasonable to rely on what the states says when forming expectations. Suppose, however, that the proxy for behavior is not simply a statement, but adherence to a treaty requiring certain behavior - how should this affect CIL? (Of course, regardless of its status as CIL, a rule established in a treaty is binding on states parties to the treaty. The question here is whether such a rule’s inclusion in a treaty should count as practice establishing a CIL obligation). In fact, it has long been established that states often rely on treaties as evidence of
