Labranza Primaria

The second source of law recognized by Article 38 of the ICJ Statute is customary international law, or Ôevidence of a general practice accepted as lawÕ. The traditional elements of customs are duration, uniformityand consistency of the practice by states, generality of this practice and opinio juris sive necessitatis.186 _{These elements raise some issues regarding the pertinence} of customary international law for establishing IHRL.187 The main problem is that, in practice, no single state truly respects all human rights. There is thus a discrepancy between the practice and

opinio iuris so that one element of customary international law, at least in its traditional

conception, is missing.

This problem is the reason why some scholars plea in favour of the adoption of a new definition of customary international law that would give prevalence to opinio iuris and blur the distinction between physical practice and verbal practice.188 _{For example, the International Law} Association recognizes that practice can be constituted of Ôverbal actsÕ like

diplomatic statements (É), policy statements, press releases, official manuals (É), instructions to armed forces, comments by governments on draft treaties, legislation,

186 _{T. Treves, Customary International Law Max Planck Encyclopedia of Public International Law; Brownlie (n44) 5; Shaw}

(n44) 6-12, 72-93.

187 _{See O. Schachter, International Law in Theory and Practice (Springer, 1991) Ch. XV; H. Thirlway, ÔHuman rights in}

customary law: an attempt to define some of the issuesÕ (2015)28(3) Leiden Journal of International Law 495-506.

188 _{See R. B. Lillich, ÔThe Growing Importance of Customary International Human Rights LawÕ (1995-1996)25}

Georgia Journal of International and Comparative Law 1-30; A. E. Roberts, ÔTraditional and Modern Approaches to

Customary International Law: A ReconciliationÕ (2001)95 American Journal of International Law 757-791; De Schutter (n38) 50.

On this debate, see A. DÕAmato, ÔTrashing Customary International LawÕ (1987)81 American Journal of International

Law 101-109; H. E. Chodosh, ÔNeither Treaty nor Custom: The Emergence of Declarative International LawÕ

(1991)26 Texas International Law Journal 87-124; I. R. Gunning, ÔModernizing Customary International Law: The Challenge of Human RightsÕ (1991)31(2) Virginia Journal of International Law 211-245; R. Kolb, ÔSelected problems in the theory of customary international lawÕ (2003)50(2) Netherlands International Law Review 123; A. T. Guzman, ÔSaving Customary International LawÕ (2005)27 Michigan Journal of International Law 116-177; E. Voyiakis, ÔA Theory of Customary International LawÕ (25 January 2008) available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895462 (last accessed 5 January 2016) ; B. D. Lepard,

Customary International Law: A New Theory with Practical Applications (CUP, 2010) ; M. Wood, First Report on Formation

decisions of national courts and executive authorities, pleadings before international tribunals, statements in international organizations and the resolutions these bodies adopt.189

If it is not contested that such acts can suggest the existence of a practice, proponents of this new definition of custom stretch this concept very far by suggesting that the existence of a custom could only be demonstrated by these verbal acts.190

This conception finds some grounds in the ICJÕs practice since, as argued by Treves, it distinguishes Ôfrom the normal customary law rules, a category of such rules for which the search for the objective and the subjective elements is not requiredÕ.191 _{For example, the ICJ accepted in} the Nicaragua case that Ôinconsistencies between what a State says is the law and what it does are not fatal, so long as it does not try to excuse its non-conforming conduct by asserting that it is legally justifiedÕ.192 _{Nonetheless, the statements of the ICJ concern international humanitarian law} and the right of self-determination rather than IHRL. In addition, it must be noted that the International Law Commission seems to recognize that Ôthere may (É) be a difference in application of the two-element approach in different fields (of international law)Õ but concludes

189 _{Committee on Formation of Customary (General) International Law, ÔFinal Report on Statement of Principles}

Applicable to the Formation of General Customary International LawÕ in International Law Association Report of the Sixty-Ninth Conference (London 2000) (ILA, 2000) 14.

190 _{See Simma and Alston (n39) 82-108; A. DÕAmato, ÔHuman Rights as Part of Customary International Law: A Plea}

for Change of ParadigmsÕ (1995-1996)25 Georgia Journal of International and Comparative Law 47-98; Lillich (n188) 8-9, 13-14; T. Meron, ÔRevival of Customary International LawÕ (2005)99(4) American Journal of International Law 817-834; E. Kadens and E. Young, ÔHow Customary is Customary International Law ?Õ (2012-2013)54 William & Mary Law

Review 885-920; Roberts (n188) 757-791.

191 _{Treves (n186);}

Nonetheless, for some scholars, this practice of the ICJ does not demonstrates the existence of customary international law: S. Talmon, ÔDetermining Customary International Law: The ICJÕs Methodology between Induction, Deduction and AssertionÕ (2015)26(2) European Journal of International Law 431-434.

For others, it rather demonstrates the existence of general principles of law: De Schutter (n38) 54; M. OÕBoyle and M. Lafferty, ÔGeneral Principles and Constitutions as Sources of Human Rights LawÕ in D. Shelton (ed.) The Oxford

Handbook of International Human Rights Law (OUP, 2013) 221.

192 _{ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits)}

that Ôthe essential nature of customary international law as a general practice accepted as law must not be distortedÕ.193

This relaxed approach to custom was also adopted by the ad hoc tribunals. They grant less importance to state practice and focus rather on the opinio iuris which can be found in primary sources (treaties) or in other instruments of international law (e.g., UN documents) or judicial decisions.194 It is the idea, as suggested by Clapham, that Ôour changing notions of what is considered humane can generate new binding rules in the field of international human rights and humanitarian law without recourse to mysteries of evaluating state practice and opinio jurisÕ.195

Admittedly, not only does this new conception help avoid the problem of the inconsistency of the practice, but it also circumvents the question of identifying the relevant practice. This second issue should not be disregarded. Indeed, such establishment would require the examination of the practice of each state regarding this right and of its position vis-ˆ-vis this right and the determination that this practice is due to a feeling that the state has to act in a certain way because of an international obligation.196 _{In other words, as held by Vasiliev,} Ôconclusive determination of the scope of customary human rights is methodologically an arduous task and, arguably, a Òmission impossibleÓÕ.197 _{This Ômodern vision of customÕ, according} to which the establishment of verbal practice would be sufficient,198 _{could prove this statement to} be irrelevant.

Nonetheless, De Schutter rightly argued that Ôthis ÒmodernÓ view results in distorting the classical notion of custom in such a way that the notion is barely even recognizable under its new

193 _{ILC, ÔThird report on identification of customary international lawÕ, Sixty-Seventh session, (4 May Ð 5 June and 6}

July Ð 7 August 2015) UN Doc A/CN.4/682 7-8.

194 _{Cassese (n53) 19-52; Fedorova and Sluiter (n81) 27; Vasiliev (n36) 20-24; T. Meron, ÔThe Continuing Role of}

Custom in the Formation of International Humanitarian LawÕ (1996)90(2) American Journal of International Law 239- 240.

195 _{A. Clapham, Human Rights Obligations of Non-State Actors (OUP, 2006) 88.} 196 _{Zeegers (n49) 59; Talmon (n191) 421.}

197 _{Vasiliev (n67);}

See also Fedorova and Sluiter (n81) 26; Zeegers (n49) 60; Vasiliev (n116) 392-393.

198 _{Simma and Alston (n39) 82-108; DÕAmato (n190) 47-98; Lillich (n188) 18; Roberts (n188) 757-791; Kadens and}

disguiseÕ.199 Indeed, its potential result is, for example, that general resolutions or declarations would become binding even though the binding effect of the UN General Resolutions was expressly rejected by the founders of the UN.200 _{This Ômodern viewÕ does not thus always rest on} statesÕ consent. Criticizing this modern view of custom, Simma and Alston underlined the risks of the vagueness of such new definition:

The mainstream position, particularly in the United States, satisfies its appetite by resorting to a progressive, streamlined theory of customary law, more or less stripped of the traditional practice requirement, and through this dubious operation is able to find a customary law of human rights wherever it is needed.201

In the same vein, Kadens and Young rightly stressed the incongruity of reference to custom as a source of IHRL:

The role of [IHRL] is frequently to challenge existing arrangements and practices. It is an odd thing, to say the least, to invoke custom to challenge conditions in oppressive societies or the abuses of long-entrenched despotic regimes. That is no doubt why human rights advocates so frequently seek to define the content of customary law by reference to aspirational documents like General Assembly resolutions or the open-ended provisions of treaties like the Universal Declaration of Human Rights.202

It is beyond the scope of this thesis to examine this debate in further detail.203 _{In any case,} it is posited that this new definition of custom is not needed because the potential flaws of the traditional definition for becoming a source for IHRL can be compensated by using general principles of law as a source.204 As Maki noted, Ôa general practice among states, as well as the recognition of the legal character of such practice, is required for customary law to be applicable.

199 _{De Schutter (n36) 70.}

200 _{J. Cabranes, ÔCustomary International Law: What It Is and What It Is NotÕ (2011)22 Duke Journal of Comparative and}

International Law 143-152.

201 _{Simma and Alston (n39) 107;}

For a criticism, see Lillich (n188) 1-30.

202 _{Kadens and Young (n190) 918-919.} 203 _{See above (n188).}

In contrast, application of general principles of law does not require any such general practice among states.Õ205 _{This could be illustrated by the assertion of the ICC Judge Steiner regarding the} status of the right to truth, which he qualified as Ôan emerging customary norm, as well as a general principle of lawÕ.206 Indeed, it implies that the general principle already exists whereas it is not yet fully formed as customary international law, probably because of a lack of practice due to its novel character. Upon the suggestion of Simma and Alston,207 _{of De Schutter,}208 _{and of} Meron,209 this thesis will thus have recourse to the third source mentioned by Article 38 of the ICJ Statute, namely the general principles of law, in order to define the right to liberty.