Customary International Law & Human Rights
- Grace Haynes
- Apr 12, 2021
- 5 min read
Updated: Apr 17, 2021
Customary international law is a primary source of international law and is applied by the International Court of Justice as a general principle accepted as law.[1] Some examples include the crime of genocide[2] and the principle of non-refoulment.[3] Customary international law relies on both state actions and opinio juris. Opinio juris is the sense of a state’s legal obligation to fulfill a certain action.[4] CIL is formed when both qualifications (state practice and opinio juris) are satisfied; there must be sufficient evidence of repeated state practice out of a perceived legal obligation.
Contradictory approaches to the formation of customary international law lead to no definitive, consistent or methodological process to identify customary norms. The traditional approach to the formation of CIL is evolutionary, with recognition occurring through an inductive process.[5] Emphasising the role of state practice, the traditional approach requires a developmental process before a customary norm can be realised. In direct contrast, the modern approach is deductive[6] with greater weight given to opinio juris, articulated verbally, than state actions. The deductive process utilises existing multilateral treaties and the resolutions of international organisations, such as the United Nations. Customary norms crystallise faster under the modern approach, allowing norms to be more readily applied.
Advocates of the modern approach see it as an opportunity to revitalise customary norms on an international plane. By deviating from strict adherence to state practice and opinio juris, through what Meron calls a “more relaxed interpretative approach,”[7] the scope of customary norms is widened. The approach circumvents the rarity of state practice and permits the use of customary norms progressively. More resolutions of states in international organisations can be considered binding in customary international law. This presents a solution to the limitations of treaty rights, which cannot be enforced where violations occur in the nation-states of non-signatories. Human Rights, under a deductive process of determining customary law, can be protected by customary norms even if nations have not signed treaties. The modern approach has already been implemented by human rights courts across the globe to ensure that there is sufficient protection for human rights, being integral to decisions in the Inter-American Court of Human Rights and the European Court of Human Rights.[8]
Conversely, traditionalist theorists propose that the modern approach undermines foundational principles of international law. The modern approach is seen as illegitimate due to the difficulties in defining the parameters of customary international law. Kelly argues that “customary law theory is indeterminate {…} because there is no common understanding on how to determine customary norms.”[9] The variation in defining customary international law as a concept limits the scope of its application. Without consensus on when and how customary norms come into existence, it is unable to fulfil its basic function as binding law. Customary international law does not anticipate state actions well, if at all, and (unless ex post facto laws are created) it is difficult to prosecute individuals or nations for crimes. The idea of implied consent and general acceptance, on an international level, undermines the cultural and moral identities of different sovereign states. Consent underpins the idea of customary international law and failure to achieve consensus would undermine the principle entirely. With vast disagreements as to human rights values across cultures, not just limited to the western world, it is hard to see how the idea of consent is reconcilable to customary international law.
The indeterminate nature limits the application of customary norms and prevents its development into a tool for human rights protection. Without general consensus, there is no basis on state practice and consent, increasing the likelihood of states rejecting customary international law as binding. If nations do not respect the customary international law that underpins the protection of rights, it would be hard to implement customary norms as a way to generate respect for human rights protected by customary international law under the modern approach.
By undermining the consent of the state parties, the Eurocentricity in international law can allow the preferences of western powers to take precedent over other regions. Under the modern approach, the expansion of customary norms without proper development over time may cause concerns over the weaponization of customary international law. This is especially true with the erosion of the consent requirement, which acts as a control on its expansion. Chimini, a proponent of third world approaches to international law, view the expansion of customary norms into international human rights law as the legitimisation of global capitalism and as an act of neo-colonialism.[10] Chimni takes issue with the suppression of consent, similarly citing the issues surrounding cultural and moral values in other sovereign states. Arguably, international customary norms export western philosophy to other regions threatening their individuality and sovereignty. Considering the imperial context during the development of international law. Some of the more pre-eminent scholars of international law, like Grotius and Vitoria, considered the question of colonialism in their work. The pair reconciled the ideas of universal international law and European colonialism. The origins of customary norms in imperialist thought and context create concerns for countries that have been subjected to the degradation and dehumanisation that colonialism perpetuates. Taking a post-colonial stance, concerns over further domineering behaviour are legitimate. Fearing the imposition of international law, acting as binding law for sovereign states without deference to their consent, undermines the authority and legitimacy of customary international law. By viewing customary international law as a threat to principles of self-determination and sovereignty, nation-states from regions with colonial history may reject the authority of international law. Countries may frustrate the delivery of justice by refusing to co-operate and this may cause repercussions for diplomacy and state relations.
The modern approach to the formation of customary international law has intentions of expanding the scope of the law in the name of human rights. It is an incredibly noble aspiration and one many would support. However, the increased protection of rights should not come at the cost of the consent requirement in customary international law. Consent is necessary for customary international law. It ensures the co-operation of states universally whilst respecting cultural differences across different sovereign nations. To be able to work collaboratively in the furtherance of human rights, it is necessary for positive relations between different global powers. Without a co-operative basis, there cannot be a fulfilment of human rights and protections across the globe. Without the centrality of consent, it is difficult to see how customary international law holds the authority and legitimacy it requires to have legal force. In this thread, it is difficult to see, without the consensual basis, how customary international law may protect human rights on an international level.
Grace is a first-year Law undergraduate student at the University of Cambridge. Outside of her academics, she enjoys volunteering and activism.
[1] United Nations, Statute of the International Court of Justice, 18 April 1946. [2] United Nations, The Genocide Convention, Available at: https://www.un.org/en/genocideprevention/genocide-convention.shtml (Accessed: 17th December 2019). [3] Office of the United Nations High Commissioner for Refugees (2007) Non-refoulement and the Scope of its Application, Office of the United Nations High Commissioner for Refugees Reports: United Nations. [4] Wex (2019) Opinio Juris, Available at: https://www.law.cornell.edu/wex/opinio_juris_(international_law) (Accessed: 3rd December 2019). [5] Roberts, A.E. (2001) Traditional and Modern Approaches to Customary International Law: A Reconciliation, American Journal of International Law, Vol. 95, American Society of International Law. [6] Roberts, A.E. (2001) Traditional and Modern Approaches to Customary International Law: A Reconciliation, American Journal of International Law, Vol. 95, American Society of International Law. [7] Baker, R (2010) 'Customary International Law in the 21st Century: Old Challenges and New Debates', European Journal of International Law, 20(1), pp. 174 [Online]. Available at: https://academic.oup.com/ejil/article/21/1/173/363352 (Accessed: 9th July 2019). [8] Meron, T. (2005) 'Revival of Customary Humanitarian Law', The American Journal of International Law, 99(4), pp. 818 [Online]. Available at: https://www.jstor.org/stable/3396670?seq=1 (Accessed: 7th December 2019). [9] Kelly, J. Patrick, The Twilight of Customary International Law, Virginia Journal of International Law, Vol. 40, No. 2, 2000. [10] Gathii, J.T (1998) 'International Law and Eurocentricity', European Journal of International Law, 9(), pp. 185-6 [Online]. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1624888
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