I chose as a topic state consent between regionalism and universalism,
particular customer international law before the International Court of Justice.
And before starting the presentation, I'd like to explain actually why this is relevant in the first place.
Why would anyone still look at something that is sometimes considered rather outdated, namely customary international law?
I think it's been clear that states have perhaps increasingly have certain concerns that are of a very particular or very regional nature.
And I think we can also safely conclude that the era of universal custom and universal place on universal treaties is over,
at least for the time being. So I think what we need is to look into tailor-made solutions that do take into account these
specific concerns what's within that will work within the broader international legal framework.
Regionalism as a political political concept, of course, escapes definition.
It can be the sort of a collection or operation of ideas, relations institutions or structures.
And often it is geographically defined, at least in principle, regional customary international law.
Then, according to that definition, would apply in relations between states within a certain region.
But it's a very elastic notion, and it can actually only be circumscribed by reference to or potentially in contradistinction to universalism
or universally applicable customary international law as such or at the heart of the regional roots.
And often lies an assertion that is a reaction against an international system, an international legal system that allegedly applies universally.
But perhaps ironically, it's also a system of distinctive regional.
And by that, I mean European origin itself.
So what I've tried to do in this paper is to look particularly at the high school of the International Court of Justice,
including the arguments of parties before the court that are based on claims or rules of regional customary international law.
And what I'm putting forward is that it's not the concept of a geographical region that is important,
but rather the consent of particular states that matters for the formation of non universal, regionally defined or otherwise customary law.
And that can also be seen from the work of the International Law Commission in
its draught conclusions on the identification of customary international law.
So which I will return part of the paper also highlights the parallels between the
making of such particular customary international law and the making of treaty law.
And finally, what I try to show is that before such geographical reach,
no particular considerations are taken into account and given effect by the ICJ they are first converted or
an attempt is made to convert to the more currencies of international being universality and state consent.
What I've tried to do, or how I structured this paper is I first outline how such non universal custom
operates within the framework of universal customary international law more broadly.
Then I've tried to explore the method of asserting the existence of such customary law, focussing on the message and the burden of proof.
In the next section,
I look at state consent as to whether it's necessary or merely or necessary and or a sufficient condition for the application of non universe custom,
whereby there is a distinction between regional and particular custom.
And finally, I look at how actually these rules are used a bit as an accordion,
a legal accordion to try to either expand these rules to give them universal
application or to kind of compressed into a particular bilateral relationship.
Starting with the determination of the legal framework,
the tension between regionalism and universalism is most acutely observed when we look at the concept of regional customary international law,
because that would be referring to rules with in origin or operation in a universal portion of the world,
a region yet deriving from a legal source that is intrinsically associated with universality where case it's a effect which is custom.
And the first question here is what is a region we don't have particular agreement on?
What isn't region? Is Latin America a region or should we split that up in central and South America?
Is Africa a region? Well, should that split up between, for example, North Africa and sub-Saharan Africa?
And this question has to be answered and examined with regard to each individual claim.
One could hypothesise that the binding force of regional custom is founded on either of two elements.
First, the elements of a membership of a state to a relevant region or by consent by a state to the binding force of such rule.
One of the early proponents of such a strong regional customers, Judge Alvarez,
was a Chilean law professor who Judge was a judge on the international court from 44 to 46 sorry to fifty five.
And he posited that customary rules of individual international law obtain binding force amongst all members of a region,
irrespective of individual consent of each of these states.
That position is, of course, highly, highly controversial.
The majority of the tribunal in that particular case, which will see asylum case, did not agree to that position.
They argued that regional custom must indeed be consented to by states within the region before that can become binding.
But important is that once such a rule is found within the region, it is opposed to third states with respect to questions affecting the region.
The source of regional customer international law seeks to balance between universal and essentialist
underpinnings because as something distinctive about a community of states within a region.
But the applicability of such rules outside of the recent region, of course, always has to be.
It's premised on state consent at any rate.
Regional custom does not feature as a distinctive category amongst the sources of international law.
At the San Francisco conference in 1945,
Ecuador did propose that Article 38 of the court statutes would read international customs and principles of law,
either continental or regional, applicable to controversies between states belonging to the continent or region involved.
But this proposal, as well as a number of other proposals with regard to this article, was actually virtually undiscussed during the conference.
And what is more, from the outset, the court treated the regional considerations through the prism of Channel International instead,
and this entailed that such practises would either be seen as manifestations of a general rule between beyond inside the confines of the
region or evidence of a specific rule whose binding force on the litigant parties emanated through the use of unusual vehicle of consent.
The first and to this day, actually still most elaborate discussion in this respect can be found in the asylum case.
As you know, this was about a complaint by Peru against Colombia's decision to grant asylum in its embassy in Lima
to hired an attorney who was prosecuted by Peruvian authorities for alleged military rebellion.
And Colombia relied on what was termed by the court as an alleged regional or local custom peculiar to Latin American states,
asserting its right to qualified the offence committed by an asylum seeker through a
unilateral decision binding on the territorial host state for the purposes of granting asylum.
And the court approached this question against the backdrop of fundamental rules of general international law,
and it decided that this decision to grant diplomatic asylum constituted a derogation from the principle of territorial sovereignty of the host state.
And as such, the legal basis ought to be firmly proved in each and every case.
Similarly, the content of this putative rule would have to be asserted bearing in mind first,
the principle that unilateral determinations of diplomatic asylum are not proceed binding on other states.
And second, the rule of non-intervention in domestic affairs, both of which of course, are rules of universal customs.
Now moving to suit how to assert a universal custom in terms of message and who bears the burden of proof.
The next step to identify the method by which such a putative rule of regional law ought to be asserted, in particular,
the burden of proof is, of course, that as a general matter, the court is deemed to know the law as such.
For example, the fisheries jurisdiction, it was stated that the court's duty to a certain and apply the relevant law was that so the burden
of establishing or proving rules of international law cannot be imposed on one of the parties.
By the same token, the shared view of the litigant parties that a given room is part of custom is not determinative,
and it does not dispense the court of its task to assert and the existence of the rule independently.
Yet when it came to certain in the existence of a putative rule of regional custom international in the asylum case,
the court considered that the party,
which relies on a custom of this kind, must prove that this custom is established in such a manner that it has become binding on the other party.
In other words, this three trusts the the regular exercise.
Regional customary law had to be proven by the invoking party and not its existence, not checked by the court independently.
That to some extent resembles the other main source of non universal international law,
namely treaties, with the possible exception of the great multilateral treaties.
It is generally accepted that the court cannot be expected to have knowledge of each and
every treaty that might affect the rights and obligations for the litigant parties,
so it is expected of the parties to invoke the relevant treaties and in that sense, prove the existence of these rules.
Evidently, between the two constitutive elements of custom international law,
the subjective element, namely the opinion euros is often difficult to identify.
That is true for universal as well as non universal customary law.
For this reason, general practise is often seen as a presumption of opinion jurists, at least with respect to permissive and prescriptive rules.
Indeed, the court has often inferred the existence of euros from general practise of state content and has also been criticised for doing that.
Yet this is not the case with respect to universal or regional custom led the system for
the establishment of which the court seems to require a stricter standard of proof.
If we look for example, at the case of the rights of U.S. nationals in Morocco as an example, in that case,
the U.S. argument was that the custom and usage in Morocco created rights relating to extraterritorial jurisdiction and considers jurisdiction.
But that argument was dismissed by the court for lack of proof that such custom had become binding specifically on Morocco.
A similar argument was put forward in passage through the great belts,
where Finland suggested that its rite of passage derives from a yellow practise whereby
Denmark allowed drill ships and oil rigs to pass through the strait in question.
Denmark contested that and the court never pronounced on the matter.
But in all likelihood, and actually even us, as the Finnish agents seemed to admit, the court would have followed the Danish argument.
So in some well, the court itself will assert and then apply the relevant universal custom.
The burden is put on the party, invoking the rule of regional custom instead.
Moreover, while general practise with regards to universal custom is often regarded as a presumption of opinion,
Uri's the existence of regional fraction practise will not give rise to an equivalence presumption.
Moving to assessing state consent as a condition for the application of known universe custom.
First of all, when it comes to assessing state consent as a condition for the existence,
the question is this whether this is a necessary condition whereby each of the states
amongst which the rule is set to apply actually has accepted the practise as law.
And secondly, the question is whether the state of consent is enough to to form or to establish a rule of customary law with no universal application.
First, with regard to whether it's a necessary condition.
Well, it depends, of course, if one follows the court, the majority on the bench in the asylum case or whether one follows judge over us.
But looking at what the court elaborated upon was that there was a narrow understanding of the legal effect of any of any such rule.
More precisely, the court said that even if it could be suppose that such a custom existed between certain Latin American states,
only it could not be invoked against Peru because it had refrained from ratifying two treaties which
allegedly codified an existing customary rule recognising the right to grant diplomatic asylum.
In other words, the general practise in the region accepts that this law would not suffice for the rule to be
opposable to the other litigant party because specific acceptance by Peru had never been given.
So if you put that differently,
while unanimous practise is not required for the formation of a universal custom with a carve out for particular for persistent objectors,
regional customs seems to be premised on a requirement of unanimous practise within the region.
And that sits a bit oddly with the court's understanding of universal custom.
Of course, when a rule of universal custom is established,
its binding force on the litigant parties is in principle independent of their participation in or adherence to that rule.
Hardly ever does the court discuss whether it has specifically been accepted by the litigants parties before it.
Peru's abstention from ratifying these two treaties contain a containing the
rule is more akin to a simple negative attitude rather than an opposition.
So in other words,
Peru's conduct would in all likelihood not have met the persistent objective threshold had a bit aimed against a rule of universal customs.
Further, once the rule of universal custom is identified,
it's political party resisting its application that Bruce bears the burden of proof to prove its persistent objection.
Thus, it seems that what we seeing the principle enunciated in the asylum case,
by which rule of regional custom is only binding on a specific state by consent is much more akin to the equivalence with respect to treaty rules.
A state may not incur rights of obligations from a treaty between third states in absence of its consent,
and this was also sent by the IOC in its draught conclusions when they observed that a rule
of the known universe custom itself creates neither obligations nor rights for third states.
Accordingly, the applicability of a rule of regional custom in a specific case before the
court will be contingent on whether it's recognised by the consenting states.
Sir Michael Wood, in his draught concerning the methods for identifying such a rule,
suggests that or proposed that it was necessary to assert and whether there was.
There is a general practise amongst the states concerned that it is accepted by each of them as law.
This wording was not ultimately adopted in the Conclusion 16 itself, but it can be found in the commentary.
In other words, the threshold for proving the acceptance by a state of a rule of non universal custom would seem at least prima facie very high.
In order for the court to recognise the existence,
all affected states would have to have undertaken active steps in terms of practise in euros to support such an existence.
However, such a high threshold in theory could of course be lowered in practise at least one or two avenues.
First of all, one could carefully and narrowly limit the group of affected states,
for example, looking at sub-Saharan Africa rather than Africa as a region as such.
And that could already significantly narrowed the number of states whose practise and whose opinion needs to be established.
The second potential avenue to lower the threshold to find known universal custom could
be to apply a broad interpretation of what qualifies as acceptance of a practise as law.
But there the the interpretative manoeuvring space is a bit more restricted because it is quite
clear that some form of active combat seems to be required rather than tacit acceptance.
Nevertheless, an act of opposition to a particular practise, combined with a lack of practise of behalf of a state that is in theory affected,
but where the issue, for example, has never arisen in practise would arguably not prevent a finding of a rule of a particular custom.
If the practise of the other states affected states and their opinion has been virtually uniform,
has been consistent and has been so for a period of time, the court on the practise of the states involved in the dispute and less so on the
practise of states that may form part of the group but who are not parties to dispute.
Either way, one of the main differences between Universal and general custom is that the latter general custom is an opt out system,
whereas the former has rather been formulated as an opt in system for affected states.
Silence could be viewed as acquiescence or as a lack of persistence objectives to falling within the scope of a universal rule,
but not so for particular customer. Now the next question is if we can find that such consent has been given by affected states.
Is this also sufficient to establish that there is such a rule of custom?
Faced with a Portuguese claim concerning the rite of passage over Indian territory based on local custom,
India relied on the asylum case to argue that custom could not be established between two states only.
But then the court said it was hard to see why the number of states between which a
local custom may be established must necessarily be larger than two for the court.
Continued practise between states that was mutually accepted as law could well govern bilateral relations.
So, in other words, consent was not was necessary, but it was also sufficient to find and apply such a rule.
What these cases demonstrate is that the concept of a particular geographical
region is largely legally irrelevant for the application of a given rule.
The legally pertinent distinction is not between universality and regionalism, but rather between the rules of general and special application.
So the term particular is tends to be preferred over the more imprecise term
regional custom or the outright Typekit term of non universal custom rules of
international law that are valid only for certain states constitute particular
international law and not distinguished from rules valid for all states in the world,
which are which is arguably what customary law general customary law is about subject, of course, to peremptory rules.
Particular international law, if it is found to exist, applies in a given case in derogation of universal international law.
And that is why in the rite of passage case, for example,
the court did not find it necessary to assert and whether there was also a rule of universal custom was that it found a rule of particular custom.
Is an understandable. That particular custom cannot escape from this fundamental consensually principle of
individual consent as the rules on universal custom might one membership of the international
community guarantees the binding force of universal custom on a state membership of a
specific region is neither necessary nor sufficient for the application of a given rule.
In this sense, there could be customs existing amongst groups of states which are linked to each other,
not by geographical proximity, but by historical, racial, political, religious or other affinities.
And that has already been tried or discussed before the court as well.
For example, Judge Close suggested that the court should have considered whether Belgium might have been granted locus standi
in the Barcelona attraction case by virtue of a rule of particular custom applicable amongst capitalist states.
Also, the IOC, in its draught conclusions on the identification of custom avoided the term regional custom.
But didn't it refer to a particular customary international law where the regional,
local or other is a rule of custom international law that applies only amongst a limited number of states?
And it's further observed that that could develop amongst states linked by a common cause and common interests,
or a common activity rather than geographical position. And I see that I would say that this is the correct approach,
particularly as it is to some extent analogous to or an extension of the position of specially affected states
whose practise should have been both extensive and virtually uniform in order to find a universal rule of custom.
But it does leave open the question as to whether the question as to whether there should
be any limits to such common causes or interests or activities that would qualify,
even though the exercise, of course, is impossible.
One cannot compile a list of exhaustive or even comprehensive causes or actions that that would could form the basis of such particular custom.
You could think of certain geo morphological features, such as countries having aquifers or countries being landlocked.
One could also think of certain characteristics, such as religion or language, but these causes and interests are far more dynamic.
So just to give as an example, after a change of government in Australia,
the emissions trading system that was being set up between the Australia, between Australia and the EU was abolished.
And one could say that combating climate change and in particular setting up an emissions trading system could be seen as a common cause.
But what does it mean if that one country suddenly withdraws from such a system?
Other examples are thinkable, and the more you think about it,
the more you realise that with changes of government it might be, particularly if they're sort of quick sequence.
It might make the discernment of a uniform practise over time a quite difficult exercise, and this shift serves to show that caution is warranted.
A too broad approach may undermine what is currently a rather static system of custom.
Once a rule of custom has emerged, has been ratified, recognised has been applied, it generally does not disappear again.
It certainly wouldn't serve the stability and predictability of the law if a
particular customer would be would seem to be popping in and out of existence.
In theory, one could think of a system whereby similar to the denunciation of treaties whereby a termination period needs to be respected.
But there are numerous practical difficulties with that.
But it appears that no universal rules of custom share more with treaty rules than they do with universal rules of custom.
In terms of their legal effect, but at the same time, they are deprived of possibly the main advantages of treaties,
namely specificity and clarity in how they articulate rights and obligations.
So I don't think it's surprising to anyone that ICJ has shown itself very reluctant to address questions of particular custom.
For example, in Costa Rica, Nicaragua case on navigational and related rights,
the court considered that a boundary treaty answered all the questions, and they didn't even enter into the arguments based on regional custom.
In doing so, and I do this more in detail in the paper, the court echoed its predecessor, which had very much the same approach.
The last element that I would like to address is whether or to what extent applying and
interpreting non universal custom is like playing a legal accordion in terms of either.
universalise and broadening known universal custom, or, on the other hand, very much restricting it to a purely bilateral context.
The cases that I've discussed so far the asylum case, rite of passage, etc. very much in those cases,
the ICJ very much reduced the claims of regional custom to specific bilateral relations.
But that's only half of the picture. The court has also elevated rules originally adopted in a particular region to a universal level,
affirming their application as general international law.
And a clear example of that can be found in the advisory opinion on reservations to the Genocide
Convention when asserting the permissibility of reservations to multilateral conventions.
The court distanced itself from what was the dominant system at the time, namely that reservations have to be unanimously accepted.
Instead, it referred to the Latin American practise, which permitted reservations, which was of recent growth in that in those days,
and most importantly, it was actually derived from a treaty commitments under the Pan American Union.
Nevertheless, the court decided to recognise this as a rule of universal custom and as a result,
a new approach encouraged widespread use of reservations and was actually then codified in the Vienna Convention on the Law of Treaties.
Similarly, with regard to the principle of which it considers,
the court stated that the maintenance of the territorial status quo at a time of independence was the approach to follow in Burkina Faso Mali.
It was not long before that judgement that the Beagle Channel Arbitration had considered which it proceeded
to as something peculiar to the fields of countries that formerly resided under the Spanish crown.
Yet the ICJ decided that it was a general principle which is logically connected with the phenomenon of obtaining independence wherever it occurs.
And what we then see is that suddenly the decolonisation Africa,
where arguably there were various factual legal differences with the context in Latin America,
followed the same rigidities principle,
which was then also later picked up by the London Terror Commission in an altogether different and non colonial context.
So that's an example of expanding now when we look at specifying, I have already highlighted what the court said in this regard.
But you can see that litigant states have taken their cue from the court and have
refrained from formulating claims on the basis of regional rules of custom.
But they have rather pressed their claims towards specificity or again donated them to universality.
And for example, when Norway was trying in the Anglo Norwegian fisheries case to bring a claim
that was actually a very particular claim with regard to stray baselines.
It persuaded the court that what it was proposing was not a regional customary rule,
but rather a matter of maritime delimitation that it was justified on the general custom,
while taking into account some factors for particular to the region.
Similarly, or differently put where the court was prepared to do was to embed special considerations in what was nevertheless seen as a general rule.
And the similar thing happened in with Denmark's pleadings in the North Sea continental shelf case,
as well as the territorial and maritime dispute between Nicaragua and Honduras.
Conversely, states that sought to rely on practise giving rise to a legal right towards their
neighbour very much focussed on bilateral relations with their counterpart,
and only in two cases did this actually work.
The Rite of passage case and the navigation and relational related rights case, as I have already established.
Now I would like to conclude here by saying, Well, first of all, I think even though this is a fascinating topic from an academic perspective,
I think we can conclude that neither regional or particular custom has been a
great success in winning this case before the International Court of Justice.
Either the rule had to be widened or it had to be specified made specific to the relation between the two political parties.
And what we can say is that this pulling in opposite directions is something that was adopted by the court,
supported by the court, and is now also generally applied and argued by the parties.
Does that mean that there is? There cannot be such a thing as taking into account as regional concerns or particular concerns?
No, because as I said,
apart from from bringing these factors of particular or regional concern into the interpretation of an international rule of international custom,
as, for example, Norway did. There are two other options.
One is that more attention is paid, as already mentioned to the position of specially affected states when concluding that there is a rule of custom,
general, universal, custom international law. And the other one would be, for example, to allow for derogation from treaties by means of reservations,
for example, the chief by way of reservations to ratify treaty rule.
In that way, the aims and claims of particular groups may be articulated effectively and in a way that is far more likely to
be recognised by the ICJ than hammering away on the existence of a particular regional or particular custom.
Such a process would in itself be more accustomed to the mode of operation of the court,
which always tends to work from a particular to the general and approach specific claims between litigants parties.
Against the backdrop of universal principles such as state consent and universalism.
And I think I should say light of time conclude here, thank you very much.