The Fluid State - SSRN papers

The Fluid State International Law and National Legal Systems

Editors

Hilary Charlesworth Madelaine Chiam Devika Hovell George Williams

T HE FEDERAT I O N PRESS

2005

Electronic copy available at: http://ssrn.com/abstract=2665483

Preface

Published in Sydney by The Federation Press 71 John St, Leichhardt, NSW, 2040 PO Box 45, Annandale, NSW, 2038 Ph: (02) 9552 2200 Fax: (02) 9552 1681 E-mail: [email protected] Website: http:/ /www.federationpress.com.au National Library of Australia Cataloguing-in-Publication data: The fluid state: international law and national legal systems Includes index. ISBN 1 86287 568 5

The chapters in this book were first presen ted at a workshop held in Canberra in August 2004 on the topic 'International Challenges to National Legal Systems'. Many of the themes that emerged from that workshop have been incorporated by the contributors into their chapters and we thank all the participants in that workshop for their hard work and stimulating ideas. We also thank the Australian National University's National Institute for Social Sciences and Law for its support of the workshop and the ANU's National Europe Centre for providing the venue. This book is one product of a research project on international challenges to the Australian legal system which has been funded by the Australian Research Council. We thank the Council for its generous support. Cathy Hutton of the Centre for International and Public Law in the Law Faculty at the ANU gave wonderful help in running the workshop. Anna Saulwick from the Gilbert + Tobin Centre of Public Law at the University of New South Wales provided excellent research and editing assistance in the production of this volume. We are very grateful to both of them. Our home institutions, the ANU and UNSW Law Faculties, have been integral to this project for the past three years and have given us both firstrate technical support and engaging intellectual environments in which to work.

Hilary Charlesworth Madelaine Chiam Devika Hovell George Williams

1. International and municipal law. I. Charlesworth, Hilary. 341.04

©

Canberra and Sydney July 2005

The Federation Press This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, rnicrocopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to the publishers.

Typeset by The Federation Press, Sydney, NSW. Printed by Ligare Pty Ltd, Sydney, NSW

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Contents Preface List of Contributors Table of Cases Table of Statutes

1

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ix xiii

xvii

International Law and National Law: Fluid States Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams

1

Partl Legislatures, Executive Governments and International Law 2

Rethlnking Legislative Powers: Parliamentary Responses to International Challenges John Uhr

3

The Role for Parliaments in Treaty-Making Joanna Harrington

4

Can the Democratic Deficit in Treaty-Making be Overcome? Parliament and the Australia-United States Free Trade Agreement Ann Capling

18 34

57

Part2 The Judiciary as Gatekeeper 5

\f 6

The Judicial Use of Unincorporated International Conventions in Administrative Law: Back-Doors, Platitudes and Window-Dressing Wendy Lacey A Stronger Role for Customary International Law in Domestic Law? Kristen Walker and Andrew D Mitchell

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82

110

CONTENTS

7

Lost in Translation: Customary International Law in Domestic Law Treasa Dunworth

8

136

Influential Authority and the Estoppel-Like Effect of International Law 156 Mayo Moran

. Part3 National Politics and the International Sphere 9

International Law-National Law: Thinking through the Hyphen Fleur Johns

188

10

Problems of Translation: The State in Domestic and International Public Law and Beyond Janet McLean

210

11 'The Law Was Warful': The Iraq War and the Role of International Lawyers in the Domestic Reception of International Law Andrew Byrnes

229

12

Influences on National Participation in International Institutions: Liberal v Non-Liberal States Ann Kent

Index

251

277

Contributors Andrew Byrnes is Professor in the Faculty of Law at the University of New South Wales. Before joining UNSW in 2005, he had taught at the Australian National University (2001-05), the University of Hong Kong (1989-2001), and previously at the University of Sydney. He teaches and writes in the field of international law, in particular in the areas of human rights law, the United Nations human rights system, and women's human rights. Ann Capling is Associate Professor and Head of the Department of Political Science at the University of Melbourne. She works at the intersection of public policy and international political economy, and she has particular expertise in trade policy, international trade and investment agreements and global economic governance. Her recent books include All the Way with the USA: Australia, the US and Free Trade (2005) and Australia and the Global Trade System (2001). She is currently writing a book on the political economy of the Australian Football League. Hilary Charlesworth is Professor in the Regulatory Institutions Network in the Research School of Social Sciences, Professor of International Law and Human Rights in the Law Faculty of the Australian National University and Director of the Centre for International Governance and Justice. She was awarded an Australian Research Council Federation Fellowship in 2005. She has worked with various non-governmental human rights organisations on ways to implement international human rights standards and was Chair of the Australian Capital Territory Government's inquiry into a bill of rights (2002-03). Madelaine Chiam is a Research Fellow with the Centre for International and Public Law and a Lecturer in the Law Faculty of the Australian National University. Madelaine holds Arts and Law degrees from the University of Melbourne and a Master of Laws from the University of Toronto. Her research interests include the intersection of the laws of trade, human rights and development and the relationship between international law and domestic law. Treasa Dunworth is a graduate of Auckland and Harvard Universities, and a Senior Lecturer in international law at the University of Auckland. She has several years' international law experience working in both non..governmental and inter-governmental spheres where her focus has been ·J on arms control, particularly the control of chemical weapons. She has published internationally and within New Zealand, and her current research focus is on the role of international law in New Zealand domestic Jaw and the accountability of international organisations. She is the New Zealand Vice President of the Australian and New Zealand Society of

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CONTRIBUTORS

International Law, a member of the Advisory Board of the Asia Pacific Centre for Military Law, the New Zealand correspondent for the Yearbook ?f Intern_ational Humanitarian Law and the contributing editor on public international law to the New Zealand Law Review. Joanna Harrington is Associate Professor with the Faculty of Law at the University of Alberta. She previously taught at the University of Western Ontario (2000-04) and the University of Nottingham (1999-2000), and has held visiting appointments with the University of Puerto Rico, the Gilbert + Tobin Centre of Public Law at the University of New South Wales, and Queen's University at Herstmonceux Cas tle. Joanna's areas of interest lie in the fields of constitutional law and public international law, including international human rights law, international criminal law, and comparative constitutional law. Much of her work focuses on the domestic rel~vance of international law, including the domestic application of international human rights law in the interpretation of national constitutions, building on her experience as the Legal Officer to Lord Les ter of Heme Hil_l QC during the passage of the UK Human Rights Act 1998. Her publications have appeared in leading journals in Canada, the United States, and the United Kingdom. Devika Hovell is a Lecturer in international law at the University of New South Wales, and a Director at the Gilbert + Tobin Centre of Public Law. Devika has an Arts and Law degree from the University of Western ~ustralia_ and a Master of Laws from New York University. Her research interests include the use of force, international humanitarian law, human rights in Australian law and the relationship between international law and domestic legal systems. Fleur Johns is a Lecturer in the University of Sydney Faculty of Law, where. she teaches international law and international human rights law. Fleur is a graduate of the University of Melbourne (earning BA/ LLB (Hons) degrees in 1994) and Harvard Law School (awarded a Masters in 1996 and an SJD in 2003). Be~ore joining the University of Sydney, Fleur practised law in New York City, where she focused on international project finance in the Latin American region. Fleur's research interests include international law, legal theory, legal history and legal geography. Ann Kent is an ARC Australian Research Fellow at the Centre for International and Public Law in the Faculty of Law at the Australian National Univ~rs~ty. She is ~e author of China, the United Nations and Human Rights: The Lzmzts of Compliance (1999) and Between Freedom and Subsistence: China and Human Rights (1993). She has also written articles on Australia and inte:national human rights. She is currently completing a manuscript, 'China, International Organisations and Global Security' .

Wendy Lacey graduated from the University of Tasmania in 1999 with a combined degree in Arts and Law, obtaining Honours in both Law and Political Science. Upon graduation she began both teaching part-time at the University of Tasmania, and her PhD looking into the influence of

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CONTRIBUTORS

international human rights law on the exercise of judicial discretion in Australia. In 2002 Wendy began lecturing at the University of Adelaide, where she teaches Australian constitutional law, administrative law, human rights, and co-ordinates the Jessup Moot. Her principal areas of research interes t are human rights and Australian public law, and specifically the interface between international and domestic law in Australia. Her publications include several articles on the High Court decisions in both Teoh and Lam. Janet McLean is Associate Professor at the University of Auckland w here she teaches public and administrative law. In 2006, she will take up the Chair in Law and Governance at the University of Dundee, Scotland. Janet holds degrees from Victoria University of Wellington and the University of Michigan. Her present work is focused on differing legal conceptions of the state in historical and contemporary settings. Her recent work in this area includes: 'The Transnational Corporation in History: Lessons for Today?' (2004) 79 Indiana Law Journal 363-377, ' From Empire to Globalisation: the New Zealand Experience' (2004) 11 Indiana Journal of Global Legal Studies 161-181, 'The Crown in Contract and Administrative Law' (2004) 24 Oxford Journal of Legal Studies 129-154 and ' The Transformation from Government to State: Globalisation and Governments as Legal Persons' (2002) 10 Indiana Journal of Global Legal Studies 173197. Andrew Mitchell is a Senior Fellow at the University of Melbourne, a Consultant to the International Monetary Fund in Geneva, and a Fellow of the Tim Fischer Centre for Global Trade & Finance at Bond University. He is also a Doctoral Candidate in Law at the University of Cambridge as a WM Tapp Scholar of Gonville & Caius College and a Cambridge Commonwealth Trust Scholar. He completed his undergraduate law and economics degrees at the University of Melbourne and Master of Laws at Harvard Law School. He teaches the law of the World Trade Organization at the University of Melbourne and in 2006 will also be teaching at Monash University, Bond University and the University of Western Ontario. Andrew has published in numerous journals and books on areas including WTO law, international law, international humanitarian law and constitutional law. He compiled, edited and contributed to Challenges and Prospects for tire WTO (2005). Mayo Moran is Associate Professor at the Faculty of Law, University of Toronto. She served as Associate Dean from January 2000 to June 2002. Mayo com pleted her LLB at Mc9ill University and subsequently obtained an LLM from the University of Michigan and an SJD from the University •fof Toronto. She has published in comparative constitutional law, private law, and legal and feminist theory. Her book Rethinking the Reasonable Person was published in 2003. She co-edited (with David Dyzenhaus) and contributed to Calling Power to Account: Law, Reparation and the Chinese Canadian Head Tax (2005). Her work focuses on how our practices and theories of responsibility come to terms w ith discrimination and on the

xi

CONTRIBUTORS

implications of this for legal theory. She is currently engaged in a project on reparations theory and transitional justice that examines the limits and possibilities of law, particularly private law, in redressing widespread historic wrongdoing. John Uhr is Reader in Policy and Governance in the Australian National University's Asia Pacific School of Economics and Government (APSEM). He is the author of Terms of Trust: Arguments over ethics in Australian government (2005). His other books include The Australian Republic: The Case for Yes (1999) which he edited and contributed to and Deliberative Democracy in Australia: The Changing Place of Parliament (1998) which was written while he was convenor of the Governance Strand of the ANU's Reshaping Australian Institutions project in the Research School of Social Sciences. Before that he was the final Director of the ANU's Federalism Research Centre from 1995-97, through which he edited three books: Program Evaluation (1991), Ethical Practice in Government (1996) and Evaluating Policy Advice (1996, co-edited with Keith Mackay and co-published with the Department of Finance). Kristen Walker is Associate Professor of Law at the University of Melbourne Law School, where she teaches and researches in the areas of • Australian constitutional law, international law and law and sexuality. She also practises at the Victorian Bar, specialising in public law. Before joining the Melbourne Law School, she was an Associate to Sir Anthony Mason, then Chief Justice of the High Court. She also taught at Columbia Law School in New York. She has degrees from the University of Melbourne and Columbia University. George Williams is Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. He is the author and co-author of books including Treaty (2005), The Case for an Australian Bill of Rights: Freedom in the War on Terror (2004), Human Rights Under the Australian Constitution (19~ · ) and Australian Constitutional Law and Theory: Commentary and Materials rd ed 2002), and is an editor of The Oxford Companion to the High Court/. if Australia (2001). George also practises as a barrister in courts such as the High Court of Australia and the Supreme Court of Fiji and has been employed as a consultant by organisations including the Australian Broadcasting Corporation, the Aboriginal and Torres Strait Islander Commission and the Federal Parliament.

xii

Table of Cases Bouzari v Islamic Republic of Iran (2004) 243 DLR (4th) 406: 149 Bropho v Western Australia (1990) 171 CLR 1: 85 Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145: 225 Campbell v Hall (1774) 1Cowp204: 224 Campbell v MGN Inc [2004] UKHL 22: 164 Canada (Director of Investigation and Research) v Southam Inc (1997] 1 SCR 748:98 Canada Trust Co v Ontario Human Rights Commission (1990) 69 DLR (4th) 321: 164, 169, 171-173, 175-176, 180, 183-184 Chan Mei Yee v Director of Immigration (1999] 3 HKC 441: 92 Chan To Foon v Director of Immigration and the Secretary for Security [2001] 320 KKCU 1: 92 Chow Hung Ching v R (1949) 77 CLR 449:125, 128 Chundawadra v Immigration Appeal Tribunal [1988] IAR 161: 91 Chung Chi Cheung v The King [1939] AC 160 (PC): 141 Coco v R (1994) 179 CLR 427: 85 Commonwealth v Tasmania (1983) 158 CLR 1: 39, 64, 94, 106, 130 Controller and Auditor-General v Davison [1996] 2 NZLR 278: 142 De Freitas v Ministry of Agriculture (1999] 1 AC 69: 94 Derbyshire County Council v Times Newspapers Ltd (1992] 1 QB770: 88 Dietrich v R (1992) 177 CLR 292: 88 Doe v Islamic Salvation Front 993 F Supp 3 (2001): 126 Doe v Unocal Inc 110 F Supp 2d 1294 (2000): 126 Douglas v Hello! Magazine [2001] QB 967:163 Drummond Wren, Re [1945) 4 DLR 674: 173-176 Du Plessis v De Klerk (1996) 3 SA 850: 163-164, 168, 176-177 East; Ex parte Nguyen, Re (1998) 196 CLR 354: 134 Elika v Minister of Immigration (1996] 1 NZLR 741: 102 European Roma Rights Centre v Secretary of State for the Home Department [2003) 4 All ER 247: 91

Av B [2003] QB 195: 163 A B & C v Chief Executive Department of Labour [2001] NZAR 981: 104 Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598: 182 Adler v Ontario [1996] 3 SCR 609: 217 Al-Kateb v Godwin (2004) 208 ALR 124: 15,87, 134, 142,210 AMS v A1F (1999) 199 CLR 160: 11, 134 Act to Amend the Education Act, Re An [1987] 1SCR1148: 217 Anglo-Norwegian Fisheries (United Kingdom v Norway) [1951] !CJ Rep 131: 120 Ashby v Minister for Immigration [1981] 1 NZLR 222 (HC): 100, 102 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: 90, 92,96, 99-100,102 Asylum (Columbia v Peru) [1950) !CJ Rep266: 115 Atkins v Virginia 536 US 304 (2002): 5 Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577: 152-153, 213-214 Attorney-General v Zaoui [2004) NZCA 244:141 Attorney-General (Canada) v AttorneyGeneral (Ontario) [1937] AC 326: 3839, 50, 83 B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604: 85 Baker v Canada [1999] 2 SCR 817: 37, 83, 86, 88, 96-97, 99, 133, 160, 178, 212, 214-216 Banco Nacional de Cuba v Sabbatino 376 us 398 (1964): 152 BC Motor Vehicle Act, Re (1985] 2 SCR 486: 171 Behluli v Secretary of State [1988] IAR 407:91 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR ., { 271: 87 · Blackbum v Attorney-General (1971] 1 WLR1037:56 Blathwayt v Baron Cawley [1976] AC 397: 183 Bouzari v Islamic Republic of Iran (2002] OJ No 1624: 147, 149

xiii

A STRONGER ROLE FOR CUSTOMARY INTERNATIONAL LAW

II Should Customary International Law Play a Role in Domestic Law?

6

A Stronger Role for Customary International Law in Domestic Law? Kristen Walker and Andrew D Mitchell

I Introduction Over the past decade, the role of treaties in domestic law has become controversial and the subject of much debate. However, the relationship between domestic law and customary international law has been relatively neglected. This is certainly true in Australia for example, apart from the brief flurry of interest after the Federal Court's decision in Nulyarimma v Thompson 1 ('Nulyarimma'). In this chapter, we consider the rationale for customary international law playing a role in domestic law and examine possibilities as to the kind of role it can play. In Part II we outline some justifications for using customary international law in domestic law, including arguments based upon the rule of law; the value of the international system; and achieving justice for individuals. We then canvass some barriers to the use of customary international law in a dome~tic context: problems of meaning and legitimacy; difficulties of proof; and judges' discomfort with customary international law. We conclude that there are good reasons for giving customary international law a place in domestic law, and that these reasons outweigh the valid concerns about the application of this body of principles. We then tum, in Part III, to outline several ways in which customary international law could play a stronger role in domestic law, using Australia as a case study. In particular, customary international law could be used in domestic law on the basis of legislative enactment; as part of the common law; as a limit on legislative power; as a tool in administrative law; or as an influence on constitutional interpretation.

1

(1999) 165 ALR 621. See generally Andrew D Mitchell, 'Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v 111ompson' (2000) 24 Melbourne University Law Review 15 and Andrew D Mitchell, ' Is Genocide a Crime Unknown in Australian Law? Nulyarimma v Thompson' (2000) 3 Yearbook of International Humanitarian Law 362.

110

In this section we explore two issues: first, why should customary international law be given a role in domes tic law? And, second, what barriers exist to customary international law playing such a role? Why Customary International Law Should Play a Role

What is it about customary international law that justifies giving it a role in domestic law? First, customary international law is an important part of international law in general. Created through a combination of the practice of states and a belief by those states that such practice amounts to law (opinio juris),2 customary international law binds all nations. As the rule of law requires that all states adhere to rules of international law, it is accordingly appropriate for domestic legal systems to ensure, as far as possible, that they do not violate customary international law. Moreover, a failure to give effect to international law undermines the international legal system, which has independent value. As McFadden puts it: The efficacy, and even existence, of any legal system depends on the general willingness of its subjects to obey its norms. International law is no different in this regard ... Any course of conduct that repeatedly violates international law, or that condones its violation, not only destabilizes the laws that are broken, but destabilizes the system as a whole.3 Second, norms of customary international law reflect the general agreement of the international community. They thus reflect universal or near universal values and rules. This argument is even more persuasive in relation to norms of jus cogens. A norm of jus cogens is a rule of international law that is 'accepted and recognised by the international community of s tates as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'.4 Norms ofjus cogens are peremptory norms, which embody principles that the international community regards as inviolable - norms that reflect the 'conscience of the international community'.5 Jus cogens norms could thus have a particularly significant role in domestic law. 2

North Sea Continental Shelf (Federal Republic of Gennany v Denmark; Federal Republic o/Gennany v Netherlands) (Merits) (1969) !CJ Rep 3. Patrick McFadden, 'Provincialism in United States Courts' (1995) 81 Cornell Lmv Review 4, 33-4.

4

Vienna Convention on lite Law a/Treaties, opened for signature on 23May1%9, 1155 UNTS 331, art 53 (entered into force 27 January 1980). See, eg, Christopher A Ford, 'Adjudicating ]us Cogens' (1994) 13 Wisconsin International Law Journal 145, 149.

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A STRONGER R OLE F OR C USTOMARY INTERNATIONAL LA W

Finally, giving customary international Jaw effect in domestic Jaw potentially enables deserving litigants to obtain justice, in circumstances where domestic Jaw otherwise fails to provide a remedy.6 Generally, justice requires that a person be entitled to a remedy when harmed by another's illegal act.7 This principle ought to operate with respect to acts that are illegal under customary international Jaw, just as it does in relation to acts that are illegal under domestic law.

opposite solution would be to place the emphasis on state practice in the creation of cus tomary international law. In that case, the psychological element w ould be used simply to exclude from customary international law certain practices that are widely regarded as not being required by law - for example, because they are a mere courtesy.12 It may also be possible to avoid this problem by view ing opinio j uris as a claim by a state that its action is legal.13 However, this would not explain situations where customary international law has developed without explicit claims of lega!ity.14 In short, no consensus exists on how to resolve this fundamental question. Notwithstanding academic critiques of the definition of customary international law, it is generally acknow ledged as a binding source of law as a matter of established international ·policy . It has been accepted by s tates and most writers,1s and it is regularly applied by international tribunals, including the International Court of Jus tice (' ICJ'). The uncertainties surrounding its exact scope and nature are insufficient to discard it as a legitimate source of law. Rather, we consider that these uncertainties should be taken into account in using customary international law domestically in any given instance.

Barriers to a Role for Customary International Law

Some of the barriers to the use of customary international law in domestic law are theoretical (relating to the coherence and legitimacy of customary international law), and some are practical (relating to difficulties of proof and judges' discomfort with customary international law).

The Meaning of Customary International Law Problems w ith the Overall Definition In this section we examine the definition of customary international law as appraised within the field of international law. Fundamental aspects of customary international law have always been obscure, leading some commentators to suggest its elimination as a source of law.8 For example, Kelly argues that customary international law should not be regarded as a source of international law on three grounds: (i) many of the existing norms claimed to be part of customary international law do not qualify as such; (ii) cus tomary international Jaw is undefined and indeterminate; and (iii) cus tomary international law lacks procedural legitimacy as a process of norm creation. Other commentators have suggested replacing customary international law with something else.9 An immediate difficulty with the traditional formulation of customary international law is that it seems to require states to believe that a rule exists before their practice in fact creates the rule. One suggested solution to this problem is to eliminate the element of state practice as a requirement in creating international customary law, maintaining only the psychological element. 10 If this solution were adopted, state practice would be used as merely one w ay of proving this psychological element.11 The 6 7 8 9 10 11

McFadden, above n 3, 31. Ibid. See, eg, J Patrick Kelly, 'The Twilight of Customary International Law' (2000) 40 Virginia Journal of In ternational Law 449. Anthony D' Amato, Tite Concept of Custom in In ternational Law (1971); cf Vladimir Degan, Sou rces of International Law (1997) 146. Degan, above n 9. Bin Cheng, ' United Nations Resolutions on Outer Space: "Instant" International Customary Law?' (1965) 5 Indian Journal of International Law 23, 125.

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Wha t State Practice Counts?

Even if customary international law is accepted as a useful source of international law, scholars disagree about w hat forms of behaviours, manifested in a particular material source, are relevant.16 Many material sources have been used as evidence of state practice in establishing customary international law. They include diploma tic correspondence, policy statements, the opinions of official legal advisers, official manuals on legal questions, state legislation, international and national decisions, recitals in international instruments, patterns of treaties in the same form, and resolutions relating to legal questions in the United Nations (' UN' ) General Assembly.17 Brownlie acknowledges that ' the value of these sources varies and much depends on the circumstances' .18 Some consider that only acts, and not statements, can constitute state practice. So, for example, to prevent the development of the right of satellite overflight, states would have had to take action against satellites 12 13

14 15 16 17 18

Ibid 125- 6. This seems to have been the approach adopted by the International Court of Justice in Militan; and Paramilitary A ctivities in and against Nicaragua (Nicaragua v United Stales of America) (Merits) [1986) ICJ Rep 14, [207). Michael Byers, Custom, Power and tlte Power of Rules: International Relations and Customan; International Law (1999) 132 Peter Malanczuk, Akelturst' s Modem Introduction to International law (7th ed, 1997) 39. Byers, above n 14, 133-4. Ian Brownlie, Principles of Public International Law (6th ed, 2003) 6. Ibid.

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or otherwise retaliate against the states that launched them.1 9 This approach clearly favours powerful states over weaker on es. 20 Others consider that any type of state behaviour, including statements and omissions, can constitute customary international law.21 In our view, a combination of acts and statements/ omissions is required, and statements/ omissions alone cannot constitute sufficient state practice to generate a norm of customary international law. Some of the material sources that are used to establish state practice are contested. For example, Kelly argues:

practice, the selection of states to examine must not be too narrow. Sources such as resolutions of the UN General Assembly may be useful in this regard, given the high proportion of developing countries within tha t body. Where the available material is restricted to particular countries or groups of countries, particular care should be taken in relying on it as evidence of broader practice. For some commentators, the flexibility in identifying and evaluating relevant state practice is troubling, becau se it may allow state practice to be used to support any particular value judgment.27 For example, on the one hand, it cou ld be said that customary international law requires full compensation for expropria tion of foreign-owned property, as this standard is contained in several bilateral investment treaties.28 On the other hand, one might argue that customary international law simply requires national treatment in compensating for expropriation, based on lump-sum payments made to compensate for expropriation at less than full value. 29 These competing interpretations show how state practice could be used selectively in an attempt to establish customary international law on a question about w hich no consensus has been reached.30 It also shows how identifying customary international law can be changed from an empirical to a normative exercise, dependen t on the views of the person or body engaged in this process.31 We regard these as real dangers that should be considered in recognising any particular customary international law rule. They are not, however, dangers that require domestic law to reject customary international law as a useful, or even binding, source of law .

[D]ecisions of national courts are of minimal value in determining customary international law. Domestic courts generally lack an understanding of how to determine customary international law. In particular, they do not undertake a detailed analysis of state practice in other cultures, are prone to accept the values of their own culture or the political positions of their own governments as customary international law, and overestimate the role of judges in the customary law process.22 Like other sources of state practice, the value of national decisions is likely to vary considerably according to the particular approach used.23 However, in appropriate circumstances these decisions can provide useful indirect evidence of state practice in a given jurisdiction as well as a thorough explanation of the law.24 Further, the actions of the judiciary must be included as state practice, along with the legislature and the executive, since each is an important branch of the state. . One significant limitation in identifying relevant state practice is that much useful material is not published, and much of the relevant published material originates in western developed countries. Often, it will be inappropriate or impossible to use this kind of material to draw general conclusions about state practice in other countries.25 Nevertheless, in some cases enough material w ill be available to constitute a solid basis for determining state practice. Of course, even assuming that material relevant to identifying state practice is available for all countries, Charney notes that it may not be realistic to assume that the practice of all of the 191 states of the UN will be examined.26 If possible, western material should be balanced with appropriate m aterial from non-western countries and, although it may not be necessary or possible to examine every state's 19 20 21 22 23

D' Amato, above n 9. Byers, above n 14, 37. Michael Akehurst, 'Custom as a Source of Law' (1974) 47 British Yearbook of International Law 1, 10. Kelly, above n 8, 506. Brownlie, above n 17, 22.

24

Ibid.

25

Kelly, above n 8, 468. Jonathan I Charney, 'Universal International Law' (1993) 87 American Journal of International Law 529, 537.

26

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Divergent State Practice No positive standard exists as to the degree of uniformity required in state practice to establish a norm of cu stomary international law or changes to tha t law. The general rule is that the practice need only be consistent and widespread to contribute to the creation of customary internation al law. In the Asylum case, the ICJ stated that a rule of customary international law must be based on ' a constant and uniform usage'.32 In the Nicaragua case, the ICJ stated: It is not to be expected that in the practice of States the application of

the rules in question should have been perfect, in the sense that States 27 28

30 31 32

Kelly, above n 8, 503. Davis R Robinson, 'Expropriation in the Restatement (Revised)' (1984) 78 American Journal of International Law 176. Brenard Kishoiyian, 'The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law' (1994) 14 Nortliwestern Journal of International Law and Business 327. Kelly, above n 8, 503. Ibid 458. Asylum (Columbia v Peru) (1950] ICJ Rep 266, 276- 7.

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THE FLUID STATE

should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of recognition of a new rule.33 This passage leaves uncertain the degree of compliance with a rule required in order to prove a norm of customary international law. The ICJ has never articulated any numerical approach to the question of state practice; nor could it do so, in our view. Customary international law cannot be reduced to calculations of the percentage of states whose practice is consistent with a particular rule.34 Furthermore, the ICJ has indicated that the practice of 'specially affected states' may be given more weight, which defeats any attempt at a precise formula for assessing whether a sufficient level of state practice has been demonstrated.35 Goldsmith and Posner suggest that customary international law 'is usually based on a highly selective survey of state practice that includes only major powers and interested nations'.36 Clearly, demonstrating sufficient state practice to prove a norm of customary international law is not a purely quantitative exercise. But this does not mean it is impossible. It merely means that, in some areas, proof of a norm may be difficult. The numerous examples of satisfactory proof of norms of customary international law suggest that these difficulties are not insurmountable.

Opinio Juris It is difficult to identify the beliefs or intentions of a state in the abstract. The ICJ has therefore tended to infer opinio juris from state acts or omissions,37 academic consensus, or previous determinations of international tribunals. 38 Significantly, in the three situations where the ICJ adopted a more rigorous approach, demanding direct evidence of opinio juris, the evidence was held to be inadequate.39


If state practice is held to comprise both acts and statements, then using it to determine opinio juris seems to render superfluous this element of customary international law. Michael Byers refers to this as the epistemological circle.40 One way of pragmatically resolving this problem is to recognise the 'sliding scale' identified by Fredric Kirgis:

[V]ery frequent, consistent state practice establishes a customary rule without much (or any) affirmative showing of an opinio juris, so long as it is not negated by evidence of non-normative intent. As the frequency and consistency of the practice decline in any series of cases, a stronger showing of opinio juris is required. At the other end of the scale, a clearly demonstrated opinio juris establishes a customary rule without much (or any) affirmative showing that governments are consistently behaving in accordance with the asserted rule.41 The possibility of using state practice in place of opinio juris, or vice versa, depends on the activity in question and the reasonableness of the asserted customary rule.42 Tasioulas explains Kirgis' sliding scale using Dworkin's interpretative theory of law, balancing theories that adequately fit past action and choosing the one that is morally the best.43 However, Roberts notes two important limitations on the sliding scale approach. First, finding custom purely on the basis of state practice gives strong states enormous power in law-making, and finding custom purely from opinio juris can create international laws completely removed from reality. Second, international tribunals do not appear to consider the moral nature of the activity addressed by the law in a symmetrical manner. Rather, the nature of the activity seems mainly ' to arise in situations where the problems with fit concern a lack of affirming s tate practice rather than a lack of opinio juris' .44 To some extent, the two extremes of Kirgis' sliding scale represent what Roberts terms 'traditional custom' and 'modern custom'. Traditional custom 'is evolutionary and is identified through an inductive process in which a general custom is derived from specific instances of state practice' .45 Modern custom is 'derived by a deductive process that begins 40 41

Byers, above n 14, 136. Fredric L Kirgis, 'Custom on a Sliding Scale' (1987) 81 American Journal of International Law 146, 149.

33 34

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986) ICJ Rep 14, [186). North Sea Continental Shelf (Federal Republic of Germany v Demark; Federal Republic of Gen11any v Netlterlands) [1969) ICJ Rep 3, [74).

35 36

Ibid. Jack Goldsmith and Eric Posner,

37 38 39

(1999) 66 University of Chicago Law Review 1113, 1117. Malanczuk, above n 15, 44. Brownlie, above n 17, 8. Ibid 9-10.

'A

42

Theory of Customary International Law'

116

44

45

For example, '[t)he more destabilizing or morally distasteful the activity - for example, the offensive use of force or the deprivation of fundamental human rights - the more readily international decision makers will substitute one element for the other, provided that the asserted restrictive rule seems reasonable': Kirgis, above n 41, 149. John Tasioulas, 'In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case' (1996) 16 Oxfard Journal of Legal Studies 85, 113. Anthea Elizabeth Roberts, 'Traditional and Modem Approaches to Customary International Law: A Reconciliation' (2001) 95 American Journal of International Law 757, 773. Ibid 758 (original emphasis, footnotes omitted).

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THE FLUID STATE


with general statements of rules rather than particular instances of practice'.4 6 Therefore, traditional custom emphasises state practice and develops slowly, w hile modern custom emphasises opinio juris and can develop quickly. Roberts notes that emphasising opinio juris is potentially more democratic, since all states can participate in the process of making treaties and declarations.47 Another difficulty with using state practice to determine opinio juris is that states can adopt a consistent pattern of behaviour uruelated to a belief in the existence of a legal norm requiring such behaviour. Goldsmith and Posner have used game theory4S to suggest that states' consistent patterns of behaviour also occur in other situations, such as coincidence of interest, coercion, bilateral repeat prisoner's dilemma, and bilateral coordination.49 In each case, this pattern of behaviour results from states acting in their own interests rather than from a sense of legal obligation.so In view of the difficulties concerning the relationship between state practice and opinio juris, Koskenniemi argues that customary international law theory is indeterminate in its application:

Although opinio juris may not always be easily distinguis~able .fr~m state practice, the former element does play an important part m defining customary international law. Sometimes opinio juris will be clear and valuable in supporting state practice - for example, where states have expressly recognised a legal obligation or expressly condemned particular action as illegal.

Attempting to identify the presence of the psychological element, [the theory of customary international law] draws inferences (presumptions) on the basis of material practice. To ascertain what acts of material practice are relevant for formation, it makes reference to the psychological element (ie ' those acts count which express the apinio juris'). The psychological element is defined by the material and vice versa.st

46 47

Ibid (original emphasis, footnotes omitted). Ibid 768.

48

Game theory is a branch of economics concerned with ' the study of interacting decision makers'. In particular it is concerned with a player's optimal strategy (ie one that maximises their pay-offs) in situations where there is competition or conflict: Robert Beynon (ed), T71e Routledge Companion to Global Economics (2001) 214-15.

49

Jack Goldsmith and Eric Posner, ' Understanding the Resemblance between Modem and Traditional Customary International Law' (2000) 40 Virginia Journal of International Law 639; Goldsmith and Posner, 'A Theory of Customary International Law', above n 36: Coincidence of interest is where 'states engage in behavioral regularities simply because each obtains private advantages from a particular action (which happens to be the same action taken by the other state) irrespective of the action of the other' (at 1122). Coercion is where ' [o]ne state, or a coalition of states with convergent interests, forces other states to engage in actions that serve the interest of the first state or states' (at 1123). Bilateral repeat prisoner's dilemma is where two states are involved in an indefinite series of games where for each game its pays an individual state to behave in a particular way, even \hrough it would pay both states to behave in some other way. Coordination is where 'states' interests converge, as in the case of coincidence of interest; but unlike the other case, each state's best move depends on the move of the other state' (at 1127). Goldsmith and Posner, above n 36. Martii Koskenniemi, From Apologt; to Utopia (1989) 363.

50 51

118

Legitimactj of Customary International Law Several critiques of customary international law highlight its lack of legi~ macy in binding states. Many of these criticisms are even more forc~ful m the context of applying customary internaµonal law through domestic law. To begin with, no single institution such as a legislature or court has clear, final authority to identify rules of customary international law.s2 When combined with i:he indeterminate nature of such rules as already discussed, this makes it difficult to accept as a broad proposition that 'customary international law', whatever that is, is binding.on all s~ates. The absence of a supreme authority to determine cu stomary international law stems in part from the diverse nature of the legal systems and cultures represented by all the states of the world. Kelly suggests that these differences cannot be reconciled without an agreed set of shared values,53 which currently does not exist. It is true that 'shared values' may be more readily found in a national context than in an inte.rnational c~ntex~. 54 However, shared values among communities and nations may still eXIst. For example, the domestic law of almost every state prohibits torture and s tates generally agree that torture is forbidden by international law.55 Furthermore, an absence of shared values about a particular issue in the international sphere may well heighten the need for international regulation, including regulation in the form of customary international law. This is no different from the need for law to encompass diverse cultures and values in the domestic sphere. Since no authoritative body or document declares customary international law, other means must be found to determine its content. We have already discussed the difficulties in identifying state practice or opinio juris and in determining which material sources should be used to do so. As foreshadowed above, much of the material relied on originates in western developed countries. Not only does this create uncertainties in identifying state practice; it also creates problems for the legitimacy of customary international law. At a political level, this tends to give a greater voice to certain countries than to others. At a procedural level, the 52 53 54 55

Kelly, above n 8, 459. Ibid 466. Byers, above n 14, 139. Hugh Thirlway, 'The Sources of International Law', in Malcolm D Evans (ed), International Law (2003) 117, 127.

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THE FLUID STATE


determination of customary international law has been described as lacking democratic legitimacy where it is based on ' the practices of a minority of states without the participation or direct assent of the majority of states'.56 Or, worse, customary international law is sometimes said to be made, not by states, but by scholars and advocates, international judges and experts.s7 This brings us to one of the most important questions about the legitimacy of customary international law - the notion of consent. The general proposition in international law is that rules of international law do not bind states against their will. This consensual theory was stated by the Permanent Court of International Justice: 'The rules of law binding upon States . . . emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law' .ss Unlike consent to treaties, which involves formalities such as signatures and ratifications, consent to customary international law is generally not explicit. Instead, consent to customary international law is often inferred from the 'non-objection' of states - on the basis of acquiescence. Thus, a state that consistently objects to a developing rule of customary international law is exempt from that rule if the rule crystallises into customary international law.59 However, the principle of the 'persistent objector' is an exception to the general rule that customary international law binds all states, whether or not they have participated in the development of a particular customary norm or were even aware of its development. Therefore, states that emerge after a particular rule of customary international law has been developed are subject to that rule, even though they had no opportunity to object to its development. These new states appear to have fewer rights than older states, which may at least be 'persistent objectors'. Moreover, even a state that existed when a rule was developed may not have had an effective opportunity to object to it. The state might have been unaware of the development of the rule and presumed by its silence to consent.60 Such a presumption 'changes free-willing States into actors who have to remain alert lest they be caught up in legal obligations which are not to their liking',61 and it may place a disproportionate burden on developing countries who lack the necessary resources to monitor continuously the creation of international legal rules. Finally, even citizens in developed

countries may object that they did not consent to a particular rule of customary international law if they did not specifically agree to it through their representatives,62 particularly if the rule is identified by reference to international treaties or resolutions rather than concrete practice of individual states including the state in question.63 This problem of consent may be overstated. A state that has not given 'explicit and specific consent to individual rules' may nevertheless be regarded as having agreed to the 'process of [customary international law]'.64 Arguably, the applicability of existing rules of customary international law to new states can also be justified. These states have joined the international community and will likely benefit from this engagement while having to comply with its rules. In addition, after joining they may participate in modifying those rules that are against their interests and in developing new rules.65 . As for the involvement of non-state actors in the development of customary international law, we assert that research and analysis by different individuals and bodies is not necessarily a bad thing. Sometimes it may be the only available proxy for the beliefs and consistent practices of states. Moreover, non-state material (including intergovernmental material such as UN resolutions) can actually assist in legitimising customary international law by broadening its focus and can give individual citizens an additional way of voicing their opinions. On that point, it is important to evaluate the methods we recommend in the next section for incorporating customary international law into domestic law, in order to ensure that citizens are not denied their right to give or withhold consent to particular rules through their representatives. Under most of these methods, citizens can be seen as having the opportunity to ' opt out' of particular rules by overriding them, for example through legislation. As Neuman put it in the United States context: '(T]he argument from democracy really boils down to the setting of a default rule . . . In the absence of specific action by federal statute ... should courts apply [customary international law] norms or disregard them?' 66 We propose a default rule to require courts to apply customary international law unless the legislature, representing the people, decides

56 57

58 59 60 61

Kelly, above n 8, 519-20. T Alexander Aleinikoff, ' International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate' (2004) 98 American Journal of International Law 91, 95. SS Lotus (France v Turkey) (1927] PCIJ (ser A) No 10, 18. Anglo-Norwegian Fisheries (United Kingdom v Norway) [1951] !CJ Rep 131. Cf Charney, above n 26. Kelly, above n 8, 473, 522. Byers, above n 14, 143.

120

62

David Feld.man, 'Monism, Dualism and Constitutional Legitimacy' (1999) 20

A ustralian Yearbook of International Law 105, 106-7; Garland A Kelley, 'Does Customary International Law Supersede a Federal Statute?' (1999) 37 Columbia Journal of Transnational Law 507, 529; Maurice H Mendelson, ' The Effect of Customary International Law on Domestic Law: An Overview' (2004) 4 Non-State Actors in International Law 75, 85.

\ 63 64 165 66

Aleinikoff, above n 57, 92-3, 101. Byers, above n 14, 144. Ibid 145. Gerald Neuman, 'Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith' (1997) 66 Ford/Jam Law Review 371,

384.

121

THE FLUID STATE

otherwise. The key exception is for jus cogens norms as a limitation on legislative power, but the primacy of these norms is justified by their special nature. Treasa Dunworth suggests a pedigree approach to the relationship of customary international law to domes tic law, 'whereby not all norms of [customary international law] are received equally - allowing exclusion of those that are perceived to be less legitimate'.67 We support this kind of approach to some extent, in the sense that jus cogens norms of customary international law should be more readily accepted in a domestic setting, and given a stronger role, than other norms of customary international law. However, in our view, claims of illegitimacy of customary international law are best addressed by adopting a rigorous standard for proving that a given rule exists in customary international law. Of course, the question of proof presents its own problems, which we will now consider.


valid criticisms; customary international law can indeed be difficult to prove. But this difficulty should not be overstated. Customary international law can be proven in domestic courts, as Australian courts have shown in Nulyarimma and Polyukhovich v Commonwealth72 in relation to genocide and war crimes; as the UK courts have shown in relation to torture claims against Pinochet; and as US courts have shown in the application of the Alien Tort Claims Act(' ATCA').73 The leading US case, Filartiga v Pena-Ira/a, illustrates the way in which domes tic courts can - and do - ascertain whether a norm of customary international law exists. In that case, the court considered a wide variety of sources to conclude that torture constituted a violation of customary international law. These included:74 • •

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;76

Difficulties of Proof At a domestic level, the argument is often made that customary international law is simply too difficult to prove for it to be useful in resolving domestic disputes. ~ith respect ~o .the technical aspects of proving customary law, it is srmply unrealistic to expect practitioners to prove state practice in the manner international legal scholars typically suggest. . . . In only a handful of cases will the litigants have the kind of resources that will enable them to undertake the full-scale proof of consistent s tate practice and opinio juris that classic international legal doctrine prescribes.68

As we have already discussed, relevant state practice should ordinarily be established in a wide range of jurisdictions, which can be an expensive and complex task. It will also not be easy to determine how to assess particular kinds of evidence of customary international law.69 Courts will n~ed to decide :'hat material to examine and then what weight to give to different matenal.7° Furthermore, problems of western bias, discussed above, will be exacerbated for domestic courts such as those in Australia as ju~ges and advocates are unlikely to be fluent in languages other th~ English, and non-western material may be difficult to obtain.71 These are 67

Treasa Dunworth, ' Hidden Anxieties: Customary International Law in New ZeaJand' (2004) 2 New Zealand Journal of Public and International law 67, 82. See also Dunworth in this volume (Chapter 7).

68

~au! L Hof~man, 'The "~lank Stare Phenomenon": Proving. Customary International Law m US Courts (1996) 25 Georgia Journal of lnternat1ona/ and Comparative law 181, 182.

69

Douglas Guilfoyle,' Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?' (2001) 29 Federal law Review 1, 10- 11. See Mendelson, above n 62, 80. Ibid 81.

70 71

122

the Universal Declaration of Human Rights;7S the Declaration on the Protection of All Persons from Being Subject to

• • • •

various treaties, which provided evidence of the ' universal renunciation of torture in the modem usage and practice of nations'; national law, which generally prohibits torture, including express or implied prohibitions in the constitutions of over 55 states; a decision of the European Court of Human Rights; and affidavits from international law scholars.

Thus, the court's analysis of the content of customary international law was extensive and rigorous, canvassing a wide range of possible evidence of customary international law, w ithout being excessive or overly taxing for the court. None of these sources would have been difficult for the litigants to obtain; indeed, with the advent of electronic resources, the ability of litigants to locate and access relevant international material should rarely be an issue, though the volume of such material may be.

Judges' Discomfort with Customan1 International Law One commentator has described the 'blarik stare' that advocates typically face when they suggest using customary international law in domestic courts.77 There are several possible explanations for this. In Australia, Kirby J has stated that an 'element of parochial self-satisfaction and [a] 72