An Argument against the Customary International Law

By Sarthak Malhotra

Amidst the widespread recognition of custom as a source of International Law, there have always been echoes of those who deny that custom is signficant as a source of law.[1]While the importance of custom cannot be denied, it will also not be an exaggeration to say that the value of custom has decreased because of widespread codification of International Law.

27 May 1963, Fifteenth session of the International Law Commission, Palais des Nations.

Does this mean that Customary International Law is obsolete now ?

Professor Trachtman‘s reply is in affirmative.

In his latest scholarship, Professor Trachtman, analyses 300 rules of CIL, only 13 of which are found to be not codified. He argues that CIL has played an important role in regulating and protecting human rights but the focus should now be shifted on more effective mechanisms(such as treaty-based hard law and soft law).

According to Mr. Trachtman, CIL has several important limitations.

 CIL cannot be made in a coordinated manner in advance of events, it cannot be made with sufficient detail,  it cannot be made with sufficiently heterogeneous reciprocity between states,it cannot be made with specifically-designed organizational support, it is generally not subject to national parliamentary control, it purports to bind states that did not consent but failed to object to its formation, and it provides excessive space for auto-interpretation by states, or for sometimes insufficiently disciplined interpretation by judges.

 Drawing upon the analysis done by Black, Levi and de Meza[2] and game theory, Trachtman explains the functional limitations of CIL succinctly.

He argues that,

In the CIL setting, it may be that the benefits of simultaneity are lost, but states might still anticipate the unraveling of cooperation, and veer away from defection.  The problem is that the first state is unlikely to adopt a compliant practice, because it will recognize that the dominant behavior of other states, after observing the initial compliant practice, is to free ride.

 Trachtman’s analysis involves arbitrarily selected, but highly regarded group of secondary sources. He, then, examined the general extent to which rules identified were incorporated in treaty law, or codified by International Law Commission. This research reveals that only 13 (4.33%) of the 300 identified rules have not been codified or incorporated in treaties. It is quite surprising that even after removing the ILC codifications, only 43 (14.33%) of the aggregate of all CIL rules have not been codified yet.

While I have always supported the importance of Customary International Law because it is more precise in some areas of international law, e.g. International Humanitarian Law, Trachtman’s stellar research is certainly thought provoking and will force many others to rethink. Though subject to many caveats, Trachtman’s latest research is a recommended reading for for all international law enthusiasts.

You can read his article here. Do not forget to skim through the appendix to the article.


[1] W. Friedman, The Changing Structure of International Law, New York, 2964, pp. 121-3
[2]Jane Black, Maurice D. Levi & David de Meza, Creating a Good Atmosphere: Minimum Participation for Tackling the ‘Greenhouse Effect,’ 60 ECONOMICA 281 (1993)

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One thought on “An Argument against the Customary International Law

  1. Portions of ‘extant state practice’ do become the subject of the ILC’s ‘codification’ process under ILC Statute Arts 18-24. On the other hand, the ILC will choose to submit only some of ‘emerging state practice’ to its ‘progressive development’ process under ILC Statute Arts 16-17.

    Emerging state practice axiomatically evolves as political circumstance changes. The volume and character of the ‘inventory’ of customary state practice which Professor Trachman monitors will likely remain fluid and not necessarily any less or more important; it depends on the circumstance. To predict that a source of law will have or should have less legal effect invites the possibility of lacunae or non liquets in the absence of that source. I believe Lauterpacht argued that a legal system, by definition, is a holism that cannot have a non liquet. However, if custom were to be abandoned as a primary source of public international law, treaty would become the only primary source of public international law. This arrangement would overtax human and financial resources available, and interfere with the timely satisfaction of legal objectives such as predictability and security.

    ILC Statute Art 23 allows for different disposition of its reports concerning codification to the GA. However, not all output of the ILC becomes convention. The ILC’s report on State Responsibility for Internationally Wrongful Acts was ultimately not considered by the Member States of the GA as subject matter for a diplomatic conference. This leaves the Articles as either (1) extant custom, which would have ‘legal force,’ or (2) subsidiary teachings of publicist, whose purpose under ICJ Statute 38(1)(d) is to determine law, not create it; its legal force effect is, indeed, subsidiary.

    In partial reply to the extract from Professor Trachman’s noted above, CIL cannot be made in a coordinated manner in advance of events, “Custom is a retrospectively formed source of prospectively oriented law;” it cannot be made with sufficient detail, “Custom has no less detail that treaty, given the latter’s generality being supplemented with the VCLT;” it cannot be made with sufficiently heterogeneous reciprocity between states , “There is no systemic need or place for ‘heterogeneous reciprocity’ given the organic legal independence of sovereigns in multilateral and bilateral negotiations;” it cannot be made with specifically-designed organizational support, it is generally not subject to national parliamentary control, “State practice, which gives rise to custom, is subject to parliamentary control;” it purports to bind states that did not consent but failed to object to its formation, and it provides excessive space for auto-interpretation by states, or for sometimes insufficiently disciplined interpretation by judges.

    Professor Trachman adds welcomed substance to observations of an equally venerated legal scholar, Cassese, who referred in his 2001 ‘International Law’ (pp 124-125) to the ‘demotion of custom.’ On the other hand, Fitzmaurice saw treaty as a source of obligation rather than a source of law (1958, ‘Symbolae Verzijl,’ p 153).

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