1 00:00:00,930 --> 00:00:05,040 I chose as a topic state consent between regionalism and universalism, 2 00:00:05,040 --> 00:00:09,360 particular customer international law before the International Court of Justice. 3 00:00:09,360 --> 00:00:14,580 And before starting the presentation, I'd like to explain actually why this is relevant in the first place. 4 00:00:14,580 --> 00:00:22,860 Why would anyone still look at something that is sometimes considered rather outdated, namely customary international law? 5 00:00:22,860 --> 00:00:32,910 I think it's been clear that states have perhaps increasingly have certain concerns that are of a very particular or very regional nature. 6 00:00:32,910 --> 00:00:41,820 And I think we can also safely conclude that the era of universal custom and universal place on universal treaties is over, 7 00:00:41,820 --> 00:00:49,590 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 8 00:00:49,590 --> 00:00:57,880 specific concerns what's within that will work within the broader international legal framework. 9 00:00:57,880 --> 00:01:03,490 Regionalism as a political political concept, of course, escapes definition. 10 00:01:03,490 --> 00:01:10,570 It can be the sort of a collection or operation of ideas, relations institutions or structures. 11 00:01:10,570 --> 00:01:17,140 And often it is geographically defined, at least in principle, regional customary international law. 12 00:01:17,140 --> 00:01:22,510 Then, according to that definition, would apply in relations between states within a certain region. 13 00:01:22,510 --> 00:01:31,360 But it's a very elastic notion, and it can actually only be circumscribed by reference to or potentially in contradistinction to universalism 14 00:01:31,360 --> 00:01:38,020 or universally applicable customary international law as such or at the heart of the regional roots. 15 00:01:38,020 --> 00:01:48,520 And often lies an assertion that is a reaction against an international system, an international legal system that allegedly applies universally. 16 00:01:48,520 --> 00:01:52,450 But perhaps ironically, it's also a system of distinctive regional. 17 00:01:52,450 --> 00:01:56,290 And by that, I mean European origin itself. 18 00:01:56,290 --> 00:02:02,770 So what I've tried to do in this paper is to look particularly at the high school of the International Court of Justice, 19 00:02:02,770 --> 00:02:12,310 including the arguments of parties before the court that are based on claims or rules of regional customary international law. 20 00:02:12,310 --> 00:02:18,730 And what I'm putting forward is that it's not the concept of a geographical region that is important, 21 00:02:18,730 --> 00:02:28,150 but rather the consent of particular states that matters for the formation of non universal, regionally defined or otherwise customary law. 22 00:02:28,150 --> 00:02:32,290 And that can also be seen from the work of the International Law Commission in 23 00:02:32,290 --> 00:02:36,640 its draught conclusions on the identification of customary international law. 24 00:02:36,640 --> 00:02:41,890 So which I will return part of the paper also highlights the parallels between the 25 00:02:41,890 --> 00:02:46,540 making of such particular customary international law and the making of treaty law. 26 00:02:46,540 --> 00:02:52,750 And finally, what I try to show is that before such geographical reach, 27 00:02:52,750 --> 00:02:59,710 no particular considerations are taken into account and given effect by the ICJ they are first converted or 28 00:02:59,710 --> 00:03:08,260 an attempt is made to convert to the more currencies of international being universality and state consent. 29 00:03:08,260 --> 00:03:14,440 What I've tried to do, or how I structured this paper is I first outline how such non universal custom 30 00:03:14,440 --> 00:03:19,960 operates within the framework of universal customary international law more broadly. 31 00:03:19,960 --> 00:03:28,930 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. 32 00:03:28,930 --> 00:03:29,950 In the next section, 33 00:03:29,950 --> 00:03:40,720 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, 34 00:03:40,720 --> 00:03:44,740 whereby there is a distinction between regional and particular custom. 35 00:03:44,740 --> 00:03:49,600 And finally, I look at how actually these rules are used a bit as an accordion, 36 00:03:49,600 --> 00:03:55,060 a legal accordion to try to either expand these rules to give them universal 37 00:03:55,060 --> 00:04:01,620 application or to kind of compressed into a particular bilateral relationship. 38 00:04:01,620 --> 00:04:05,280 Starting with the determination of the legal framework, 39 00:04:05,280 --> 00:04:13,350 the tension between regionalism and universalism is most acutely observed when we look at the concept of regional customary international law, 40 00:04:13,350 --> 00:04:19,260 because that would be referring to rules with in origin or operation in a universal portion of the world, 41 00:04:19,260 --> 00:04:28,260 a region yet deriving from a legal source that is intrinsically associated with universality where case it's a effect which is custom. 42 00:04:28,260 --> 00:04:33,900 And the first question here is what is a region we don't have particular agreement on? 43 00:04:33,900 --> 00:04:39,300 What isn't region? Is Latin America a region or should we split that up in central and South America? 44 00:04:39,300 --> 00:04:46,140 Is Africa a region? Well, should that split up between, for example, North Africa and sub-Saharan Africa? 45 00:04:46,140 --> 00:04:51,830 And this question has to be answered and examined with regard to each individual claim. 46 00:04:51,830 --> 00:04:58,220 One could hypothesise that the binding force of regional custom is founded on either of two elements. 47 00:04:58,220 --> 00:05:07,160 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. 48 00:05:07,160 --> 00:05:12,230 One of the early proponents of such a strong regional customers, Judge Alvarez, 49 00:05:12,230 --> 00:05:21,020 was a Chilean law professor who Judge was a judge on the international court from 44 to 46 sorry to fifty five. 50 00:05:21,020 --> 00:05:30,020 And he posited that customary rules of individual international law obtain binding force amongst all members of a region, 51 00:05:30,020 --> 00:05:34,910 irrespective of individual consent of each of these states. 52 00:05:34,910 --> 00:05:39,230 That position is, of course, highly, highly controversial. 53 00:05:39,230 --> 00:05:46,190 The majority of the tribunal in that particular case, which will see asylum case, did not agree to that position. 54 00:05:46,190 --> 00:05:54,050 They argued that regional custom must indeed be consented to by states within the region before that can become binding. 55 00:05:54,050 --> 00:06:05,110 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. 56 00:06:05,110 --> 00:06:10,300 The source of regional customer international law seeks to balance between universal and essentialist 57 00:06:10,300 --> 00:06:15,310 underpinnings because as something distinctive about a community of states within a region. 58 00:06:15,310 --> 00:06:20,710 But the applicability of such rules outside of the recent region, of course, always has to be. 59 00:06:20,710 --> 00:06:24,730 It's premised on state consent at any rate. 60 00:06:24,730 --> 00:06:30,790 Regional custom does not feature as a distinctive category amongst the sources of international law. 61 00:06:30,790 --> 00:06:34,300 At the San Francisco conference in 1945, 62 00:06:34,300 --> 00:06:42,220 Ecuador did propose that Article 38 of the court statutes would read international customs and principles of law, 63 00:06:42,220 --> 00:06:50,020 either continental or regional, applicable to controversies between states belonging to the continent or region involved. 64 00:06:50,020 --> 00:06:59,410 But this proposal, as well as a number of other proposals with regard to this article, was actually virtually undiscussed during the conference. 65 00:06:59,410 --> 00:07:07,510 And what is more, from the outset, the court treated the regional considerations through the prism of Channel International instead, 66 00:07:07,510 --> 00:07:15,040 and this entailed that such practises would either be seen as manifestations of a general rule between beyond inside the confines of the 67 00:07:15,040 --> 00:07:25,090 region or evidence of a specific rule whose binding force on the litigant parties emanated through the use of unusual vehicle of consent. 68 00:07:25,090 --> 00:07:32,860 The first and to this day, actually still most elaborate discussion in this respect can be found in the asylum case. 69 00:07:32,860 --> 00:07:40,480 As you know, this was about a complaint by Peru against Colombia's decision to grant asylum in its embassy in Lima 70 00:07:40,480 --> 00:07:48,880 to hired an attorney who was prosecuted by Peruvian authorities for alleged military rebellion. 71 00:07:48,880 --> 00:07:56,800 And Colombia relied on what was termed by the court as an alleged regional or local custom peculiar to Latin American states, 72 00:07:56,800 --> 00:08:01,060 asserting its right to qualified the offence committed by an asylum seeker through a 73 00:08:01,060 --> 00:08:06,640 unilateral decision binding on the territorial host state for the purposes of granting asylum. 74 00:08:06,640 --> 00:08:14,950 And the court approached this question against the backdrop of fundamental rules of general international law, 75 00:08:14,950 --> 00:08:23,440 and it decided that this decision to grant diplomatic asylum constituted a derogation from the principle of territorial sovereignty of the host state. 76 00:08:23,440 --> 00:08:29,920 And as such, the legal basis ought to be firmly proved in each and every case. 77 00:08:29,920 --> 00:08:35,800 Similarly, the content of this putative rule would have to be asserted bearing in mind first, 78 00:08:35,800 --> 00:08:42,100 the principle that unilateral determinations of diplomatic asylum are not proceed binding on other states. 79 00:08:42,100 --> 00:08:50,700 And second, the rule of non-intervention in domestic affairs, both of which of course, are rules of universal customs. 80 00:08:50,700 --> 00:09:00,010 Now moving to suit how to assert a universal custom in terms of message and who bears the burden of proof. 81 00:09:00,010 --> 00:09:05,740 The next step to identify the method by which such a putative rule of regional law ought to be asserted, in particular, 82 00:09:05,740 --> 00:09:14,650 the burden of proof is, of course, that as a general matter, the court is deemed to know the law as such. 83 00:09:14,650 --> 00:09:22,390 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 84 00:09:22,390 --> 00:09:27,760 of establishing or proving rules of international law cannot be imposed on one of the parties. 85 00:09:27,760 --> 00:09:34,210 By the same token, the shared view of the litigant parties that a given room is part of custom is not determinative, 86 00:09:34,210 --> 00:09:40,960 and it does not dispense the court of its task to assert and the existence of the rule independently. 87 00:09:40,960 --> 00:09:48,070 Yet when it came to certain in the existence of a putative rule of regional custom international in the asylum case, 88 00:09:48,070 --> 00:09:49,900 the court considered that the party, 89 00:09:49,900 --> 00:09:59,110 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. 90 00:09:59,110 --> 00:10:03,820 In other words, this three trusts the the regular exercise. 91 00:10:03,820 --> 00:10:15,100 Regional customary law had to be proven by the invoking party and not its existence, not checked by the court independently. 92 00:10:15,100 --> 00:10:20,320 That to some extent resembles the other main source of non universal international law, 93 00:10:20,320 --> 00:10:24,910 namely treaties, with the possible exception of the great multilateral treaties. 94 00:10:24,910 --> 00:10:29,440 It is generally accepted that the court cannot be expected to have knowledge of each and 95 00:10:29,440 --> 00:10:33,880 every treaty that might affect the rights and obligations for the litigant parties, 96 00:10:33,880 --> 00:10:42,740 so it is expected of the parties to invoke the relevant treaties and in that sense, prove the existence of these rules. 97 00:10:42,740 --> 00:10:47,000 Evidently, between the two constitutive elements of custom international law, 98 00:10:47,000 --> 00:10:51,620 the subjective element, namely the opinion euros is often difficult to identify. 99 00:10:51,620 --> 00:10:56,450 That is true for universal as well as non universal customary law. 100 00:10:56,450 --> 00:11:05,750 For this reason, general practise is often seen as a presumption of opinion jurists, at least with respect to permissive and prescriptive rules. 101 00:11:05,750 --> 00:11:15,560 Indeed, the court has often inferred the existence of euros from general practise of state content and has also been criticised for doing that. 102 00:11:15,560 --> 00:11:21,950 Yet this is not the case with respect to universal or regional custom led the system for 103 00:11:21,950 --> 00:11:27,140 the establishment of which the court seems to require a stricter standard of proof. 104 00:11:27,140 --> 00:11:33,770 If we look for example, at the case of the rights of U.S. nationals in Morocco as an example, in that case, 105 00:11:33,770 --> 00:11:43,520 the U.S. argument was that the custom and usage in Morocco created rights relating to extraterritorial jurisdiction and considers jurisdiction. 106 00:11:43,520 --> 00:11:51,380 But that argument was dismissed by the court for lack of proof that such custom had become binding specifically on Morocco. 107 00:11:51,380 --> 00:11:55,100 A similar argument was put forward in passage through the great belts, 108 00:11:55,100 --> 00:12:01,370 where Finland suggested that its rite of passage derives from a yellow practise whereby 109 00:12:01,370 --> 00:12:06,590 Denmark allowed drill ships and oil rigs to pass through the strait in question. 110 00:12:06,590 --> 00:12:12,830 Denmark contested that and the court never pronounced on the matter. 111 00:12:12,830 --> 00:12:20,690 But in all likelihood, and actually even us, as the Finnish agents seemed to admit, the court would have followed the Danish argument. 112 00:12:20,690 --> 00:12:25,670 So in some well, the court itself will assert and then apply the relevant universal custom. 113 00:12:25,670 --> 00:12:32,540 The burden is put on the party, invoking the rule of regional custom instead. 114 00:12:32,540 --> 00:12:38,090 Moreover, while general practise with regards to universal custom is often regarded as a presumption of opinion, 115 00:12:38,090 --> 00:12:46,630 Uri's the existence of regional fraction practise will not give rise to an equivalence presumption. 116 00:12:46,630 --> 00:12:53,140 Moving to assessing state consent as a condition for the application of known universe custom. 117 00:12:53,140 --> 00:12:59,080 First of all, when it comes to assessing state consent as a condition for the existence, 118 00:12:59,080 --> 00:13:04,300 the question is this whether this is a necessary condition whereby each of the states 119 00:13:04,300 --> 00:13:09,130 amongst which the rule is set to apply actually has accepted the practise as law. 120 00:13:09,130 --> 00:13:22,630 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. 121 00:13:22,630 --> 00:13:25,690 First, with regard to whether it's a necessary condition. 122 00:13:25,690 --> 00:13:35,410 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. 123 00:13:35,410 --> 00:13:43,960 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. 124 00:13:43,960 --> 00:13:50,230 More precisely, the court said that even if it could be suppose that such a custom existed between certain Latin American states, 125 00:13:50,230 --> 00:13:57,010 only it could not be invoked against Peru because it had refrained from ratifying two treaties which 126 00:13:57,010 --> 00:14:04,480 allegedly codified an existing customary rule recognising the right to grant diplomatic asylum. 127 00:14:04,480 --> 00:14:10,570 In other words, the general practise in the region accepts that this law would not suffice for the rule to be 128 00:14:10,570 --> 00:14:17,830 opposable to the other litigant party because specific acceptance by Peru had never been given. 129 00:14:17,830 --> 00:14:19,270 So if you put that differently, 130 00:14:19,270 --> 00:14:28,420 while unanimous practise is not required for the formation of a universal custom with a carve out for particular for persistent objectors, 131 00:14:28,420 --> 00:14:35,800 regional customs seems to be premised on a requirement of unanimous practise within the region. 132 00:14:35,800 --> 00:14:39,370 And that sits a bit oddly with the court's understanding of universal custom. 133 00:14:39,370 --> 00:14:42,850 Of course, when a rule of universal custom is established, 134 00:14:42,850 --> 00:14:50,200 its binding force on the litigant parties is in principle independent of their participation in or adherence to that rule. 135 00:14:50,200 --> 00:14:57,400 Hardly ever does the court discuss whether it has specifically been accepted by the litigants parties before it. 136 00:14:57,400 --> 00:15:02,620 Peru's abstention from ratifying these two treaties contain a containing the 137 00:15:02,620 --> 00:15:08,830 rule is more akin to a simple negative attitude rather than an opposition. 138 00:15:08,830 --> 00:15:10,090 So in other words, 139 00:15:10,090 --> 00:15:18,790 Peru's conduct would in all likelihood not have met the persistent objective threshold had a bit aimed against a rule of universal customs. 140 00:15:18,790 --> 00:15:22,780 Further, once the rule of universal custom is identified, 141 00:15:22,780 --> 00:15:31,390 it's political party resisting its application that Bruce bears the burden of proof to prove its persistent objection. 142 00:15:31,390 --> 00:15:35,740 Thus, it seems that what we seeing the principle enunciated in the asylum case, 143 00:15:35,740 --> 00:15:44,770 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. 144 00:15:44,770 --> 00:15:51,490 A state may not incur rights of obligations from a treaty between third states in absence of its consent, 145 00:15:51,490 --> 00:15:56,680 and this was also sent by the IOC in its draught conclusions when they observed that a rule 146 00:15:56,680 --> 00:16:04,090 of the known universe custom itself creates neither obligations nor rights for third states. 147 00:16:04,090 --> 00:16:09,550 Accordingly, the applicability of a rule of regional custom in a specific case before the 148 00:16:09,550 --> 00:16:15,430 court will be contingent on whether it's recognised by the consenting states. 149 00:16:15,430 --> 00:16:21,040 Sir Michael Wood, in his draught concerning the methods for identifying such a rule, 150 00:16:21,040 --> 00:16:25,360 suggests that or proposed that it was necessary to assert and whether there was. 151 00:16:25,360 --> 00:16:31,270 There is a general practise amongst the states concerned that it is accepted by each of them as law. 152 00:16:31,270 --> 00:16:39,910 This wording was not ultimately adopted in the Conclusion 16 itself, but it can be found in the commentary. 153 00:16:39,910 --> 00:16:48,730 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. 154 00:16:48,730 --> 00:16:51,820 In order for the court to recognise the existence, 155 00:16:51,820 --> 00:17:00,100 all affected states would have to have undertaken active steps in terms of practise in euros to support such an existence. 156 00:17:00,100 --> 00:17:06,700 However, such a high threshold in theory could of course be lowered in practise at least one or two avenues. 157 00:17:06,700 --> 00:17:12,220 First of all, one could carefully and narrowly limit the group of affected states, 158 00:17:12,220 --> 00:17:17,680 for example, looking at sub-Saharan Africa rather than Africa as a region as such. 159 00:17:17,680 --> 00:17:24,220 And that could already significantly narrowed the number of states whose practise and whose opinion needs to be established. 160 00:17:24,220 --> 00:17:29,590 The second potential avenue to lower the threshold to find known universal custom could 161 00:17:29,590 --> 00:17:35,470 be to apply a broad interpretation of what qualifies as acceptance of a practise as law. 162 00:17:35,470 --> 00:17:41,260 But there the the interpretative manoeuvring space is a bit more restricted because it is quite 163 00:17:41,260 --> 00:17:47,890 clear that some form of active combat seems to be required rather than tacit acceptance. 164 00:17:47,890 --> 00:17:56,110 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, 165 00:17:56,110 --> 00:18:03,610 but where the issue, for example, has never arisen in practise would arguably not prevent a finding of a rule of a particular custom. 166 00:18:03,610 --> 00:18:09,370 If the practise of the other states affected states and their opinion has been virtually uniform, 167 00:18:09,370 --> 00:18:18,850 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 168 00:18:18,850 --> 00:18:25,440 practise of states that may form part of the group but who are not parties to dispute. 169 00:18:25,440 --> 00:18:33,630 Either way, one of the main differences between Universal and general custom is that the latter general custom is an opt out system, 170 00:18:33,630 --> 00:18:39,360 whereas the former has rather been formulated as an opt in system for affected states. 171 00:18:39,360 --> 00:18:46,650 Silence could be viewed as acquiescence or as a lack of persistence objectives to falling within the scope of a universal rule, 172 00:18:46,650 --> 00:18:58,110 but not so for particular customer. Now the next question is if we can find that such consent has been given by affected states. 173 00:18:58,110 --> 00:19:04,740 Is this also sufficient to establish that there is such a rule of custom? 174 00:19:04,740 --> 00:19:11,160 Faced with a Portuguese claim concerning the rite of passage over Indian territory based on local custom, 175 00:19:11,160 --> 00:19:18,630 India relied on the asylum case to argue that custom could not be established between two states only. 176 00:19:18,630 --> 00:19:22,950 But then the court said it was hard to see why the number of states between which a 177 00:19:22,950 --> 00:19:28,230 local custom may be established must necessarily be larger than two for the court. 178 00:19:28,230 --> 00:19:35,610 Continued practise between states that was mutually accepted as law could well govern bilateral relations. 179 00:19:35,610 --> 00:19:43,680 So, in other words, consent was not was necessary, but it was also sufficient to find and apply such a rule. 180 00:19:43,680 --> 00:19:47,970 What these cases demonstrate is that the concept of a particular geographical 181 00:19:47,970 --> 00:19:53,370 region is largely legally irrelevant for the application of a given rule. 182 00:19:53,370 --> 00:20:03,630 The legally pertinent distinction is not between universality and regionalism, but rather between the rules of general and special application. 183 00:20:03,630 --> 00:20:09,090 So the term particular is tends to be preferred over the more imprecise term 184 00:20:09,090 --> 00:20:15,330 regional custom or the outright Typekit term of non universal custom rules of 185 00:20:15,330 --> 00:20:19,470 international law that are valid only for certain states constitute particular 186 00:20:19,470 --> 00:20:24,570 international law and not distinguished from rules valid for all states in the world, 187 00:20:24,570 --> 00:20:32,190 which are which is arguably what customary law general customary law is about subject, of course, to peremptory rules. 188 00:20:32,190 --> 00:20:40,440 Particular international law, if it is found to exist, applies in a given case in derogation of universal international law. 189 00:20:40,440 --> 00:20:43,410 And that is why in the rite of passage case, for example, 190 00:20:43,410 --> 00:20:53,720 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. 191 00:20:53,720 --> 00:21:01,490 Is an understandable. That particular custom cannot escape from this fundamental consensually principle of 192 00:21:01,490 --> 00:21:08,960 individual consent as the rules on universal custom might one membership of the international 193 00:21:08,960 --> 00:21:14,360 community guarantees the binding force of universal custom on a state membership of a 194 00:21:14,360 --> 00:21:20,900 specific region is neither necessary nor sufficient for the application of a given rule. 195 00:21:20,900 --> 00:21:26,750 In this sense, there could be customs existing amongst groups of states which are linked to each other, 196 00:21:26,750 --> 00:21:34,370 not by geographical proximity, but by historical, racial, political, religious or other affinities. 197 00:21:34,370 --> 00:21:39,020 And that has already been tried or discussed before the court as well. 198 00:21:39,020 --> 00:21:45,710 For example, Judge Close suggested that the court should have considered whether Belgium might have been granted locus standi 199 00:21:45,710 --> 00:21:54,440 in the Barcelona attraction case by virtue of a rule of particular custom applicable amongst capitalist states. 200 00:21:54,440 --> 00:22:00,620 Also, the IOC, in its draught conclusions on the identification of custom avoided the term regional custom. 201 00:22:00,620 --> 00:22:05,840 But didn't it refer to a particular customary international law where the regional, 202 00:22:05,840 --> 00:22:12,470 local or other is a rule of custom international law that applies only amongst a limited number of states? 203 00:22:12,470 --> 00:22:19,550 And it's further observed that that could develop amongst states linked by a common cause and common interests, 204 00:22:19,550 --> 00:22:29,000 or a common activity rather than geographical position. And I see that I would say that this is the correct approach, 205 00:22:29,000 --> 00:22:35,360 particularly as it is to some extent analogous to or an extension of the position of specially affected states 206 00:22:35,360 --> 00:22:43,250 whose practise should have been both extensive and virtually uniform in order to find a universal rule of custom. 207 00:22:43,250 --> 00:22:49,100 But it does leave open the question as to whether the question as to whether there should 208 00:22:49,100 --> 00:22:55,400 be any limits to such common causes or interests or activities that would qualify, 209 00:22:55,400 --> 00:22:58,490 even though the exercise, of course, is impossible. 210 00:22:58,490 --> 00:23:09,740 One cannot compile a list of exhaustive or even comprehensive causes or actions that that would could form the basis of such particular custom. 211 00:23:09,740 --> 00:23:16,940 You could think of certain geo morphological features, such as countries having aquifers or countries being landlocked. 212 00:23:16,940 --> 00:23:24,950 One could also think of certain characteristics, such as religion or language, but these causes and interests are far more dynamic. 213 00:23:24,950 --> 00:23:30,710 So just to give as an example, after a change of government in Australia, 214 00:23:30,710 --> 00:23:38,930 the emissions trading system that was being set up between the Australia, between Australia and the EU was abolished. 215 00:23:38,930 --> 00:23:47,210 And one could say that combating climate change and in particular setting up an emissions trading system could be seen as a common cause. 216 00:23:47,210 --> 00:23:51,860 But what does it mean if that one country suddenly withdraws from such a system? 217 00:23:51,860 --> 00:23:56,510 Other examples are thinkable, and the more you think about it, 218 00:23:56,510 --> 00:24:04,280 the more you realise that with changes of government it might be, particularly if they're sort of quick sequence. 219 00:24:04,280 --> 00:24:13,160 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. 220 00:24:13,160 --> 00:24:19,250 A too broad approach may undermine what is currently a rather static system of custom. 221 00:24:19,250 --> 00:24:26,900 Once a rule of custom has emerged, has been ratified, recognised has been applied, it generally does not disappear again. 222 00:24:26,900 --> 00:24:30,620 It certainly wouldn't serve the stability and predictability of the law if a 223 00:24:30,620 --> 00:24:35,900 particular customer would be would seem to be popping in and out of existence. 224 00:24:35,900 --> 00:24:43,580 In theory, one could think of a system whereby similar to the denunciation of treaties whereby a termination period needs to be respected. 225 00:24:43,580 --> 00:24:48,710 But there are numerous practical difficulties with that. 226 00:24:48,710 --> 00:24:57,140 But it appears that no universal rules of custom share more with treaty rules than they do with universal rules of custom. 227 00:24:57,140 --> 00:25:04,100 In terms of their legal effect, but at the same time, they are deprived of possibly the main advantages of treaties, 228 00:25:04,100 --> 00:25:09,110 namely specificity and clarity in how they articulate rights and obligations. 229 00:25:09,110 --> 00:25:16,700 So I don't think it's surprising to anyone that ICJ has shown itself very reluctant to address questions of particular custom. 230 00:25:16,700 --> 00:25:22,130 For example, in Costa Rica, Nicaragua case on navigational and related rights, 231 00:25:22,130 --> 00:25:31,340 the court considered that a boundary treaty answered all the questions, and they didn't even enter into the arguments based on regional custom. 232 00:25:31,340 --> 00:25:40,130 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. 233 00:25:40,130 --> 00:25:46,520 The last element that I would like to address is whether or to what extent applying and 234 00:25:46,520 --> 00:25:52,640 interpreting non universal custom is like playing a legal accordion in terms of either. 235 00:25:52,640 --> 00:26:02,060 universalise and broadening known universal custom, or, on the other hand, very much restricting it to a purely bilateral context. 236 00:26:02,060 --> 00:26:08,720 The cases that I've discussed so far the asylum case, rite of passage, etc. very much in those cases, 237 00:26:08,720 --> 00:26:14,750 the ICJ very much reduced the claims of regional custom to specific bilateral relations. 238 00:26:14,750 --> 00:26:22,910 But that's only half of the picture. The court has also elevated rules originally adopted in a particular region to a universal level, 239 00:26:22,910 --> 00:26:26,690 affirming their application as general international law. 240 00:26:26,690 --> 00:26:32,510 And a clear example of that can be found in the advisory opinion on reservations to the Genocide 241 00:26:32,510 --> 00:26:39,110 Convention when asserting the permissibility of reservations to multilateral conventions. 242 00:26:39,110 --> 00:26:48,110 The court distanced itself from what was the dominant system at the time, namely that reservations have to be unanimously accepted. 243 00:26:48,110 --> 00:26:57,260 Instead, it referred to the Latin American practise, which permitted reservations, which was of recent growth in that in those days, 244 00:26:57,260 --> 00:27:03,590 and most importantly, it was actually derived from a treaty commitments under the Pan American Union. 245 00:27:03,590 --> 00:27:10,790 Nevertheless, the court decided to recognise this as a rule of universal custom and as a result, 246 00:27:10,790 --> 00:27:18,470 a new approach encouraged widespread use of reservations and was actually then codified in the Vienna Convention on the Law of Treaties. 247 00:27:18,470 --> 00:27:22,250 Similarly, with regard to the principle of which it considers, 248 00:27:22,250 --> 00:27:33,350 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. 249 00:27:33,350 --> 00:27:38,480 It was not long before that judgement that the Beagle Channel Arbitration had considered which it proceeded 250 00:27:38,480 --> 00:27:45,860 to as something peculiar to the fields of countries that formerly resided under the Spanish crown. 251 00:27:45,860 --> 00:27:55,250 Yet the ICJ decided that it was a general principle which is logically connected with the phenomenon of obtaining independence wherever it occurs. 252 00:27:55,250 --> 00:28:00,380 And what we then see is that suddenly the decolonisation Africa, 253 00:28:00,380 --> 00:28:06,890 where arguably there were various factual legal differences with the context in Latin America, 254 00:28:06,890 --> 00:28:09,650 followed the same rigidities principle, 255 00:28:09,650 --> 00:28:17,420 which was then also later picked up by the London Terror Commission in an altogether different and non colonial context. 256 00:28:17,420 --> 00:28:25,910 So that's an example of expanding now when we look at specifying, I have already highlighted what the court said in this regard. 257 00:28:25,910 --> 00:28:31,310 But you can see that litigant states have taken their cue from the court and have 258 00:28:31,310 --> 00:28:36,680 refrained from formulating claims on the basis of regional rules of custom. 259 00:28:36,680 --> 00:28:45,590 But they have rather pressed their claims towards specificity or again donated them to universality. 260 00:28:45,590 --> 00:28:51,980 And for example, when Norway was trying in the Anglo Norwegian fisheries case to bring a claim 261 00:28:51,980 --> 00:28:56,240 that was actually a very particular claim with regard to stray baselines. 262 00:28:56,240 --> 00:29:03,920 It persuaded the court that what it was proposing was not a regional customary rule, 263 00:29:03,920 --> 00:29:09,290 but rather a matter of maritime delimitation that it was justified on the general custom, 264 00:29:09,290 --> 00:29:16,460 while taking into account some factors for particular to the region. 265 00:29:16,460 --> 00:29:25,640 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. 266 00:29:25,640 --> 00:29:30,950 And the similar thing happened in with Denmark's pleadings in the North Sea continental shelf case, 267 00:29:30,950 --> 00:29:41,440 as well as the territorial and maritime dispute between Nicaragua and Honduras. 268 00:29:41,440 --> 00:29:46,210 Conversely, states that sought to rely on practise giving rise to a legal right towards their 269 00:29:46,210 --> 00:29:50,650 neighbour very much focussed on bilateral relations with their counterpart, 270 00:29:50,650 --> 00:29:53,860 and only in two cases did this actually work. 271 00:29:53,860 --> 00:30:03,670 The Rite of passage case and the navigation and relational related rights case, as I have already established. 272 00:30:03,670 --> 00:30:11,530 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, 273 00:30:11,530 --> 00:30:16,510 I think we can conclude that neither regional or particular custom has been a 274 00:30:16,510 --> 00:30:22,300 great success in winning this case before the International Court of Justice. 275 00:30:22,300 --> 00:30:31,720 Either the rule had to be widened or it had to be specified made specific to the relation between the two political parties. 276 00:30:31,720 --> 00:30:38,710 And what we can say is that this pulling in opposite directions is something that was adopted by the court, 277 00:30:38,710 --> 00:30:45,160 supported by the court, and is now also generally applied and argued by the parties. 278 00:30:45,160 --> 00:30:52,990 Does that mean that there is? There cannot be such a thing as taking into account as regional concerns or particular concerns? 279 00:30:52,990 --> 00:30:56,140 No, because as I said, 280 00:30:56,140 --> 00:31:07,510 apart from from bringing these factors of particular or regional concern into the interpretation of an international rule of international custom, 281 00:31:07,510 --> 00:31:12,400 as, for example, Norway did. There are two other options. 282 00:31:12,400 --> 00:31:23,360 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, 283 00:31:23,360 --> 00:31:35,080 general, universal, custom international law. And the other one would be, for example, to allow for derogation from treaties by means of reservations, 284 00:31:35,080 --> 00:31:41,020 for example, the chief by way of reservations to ratify treaty rule. 285 00:31:41,020 --> 00:31:48,310 In that way, the aims and claims of particular groups may be articulated effectively and in a way that is far more likely to 286 00:31:48,310 --> 00:31:56,050 be recognised by the ICJ than hammering away on the existence of a particular regional or particular custom. 287 00:31:56,050 --> 00:32:01,570 Such a process would in itself be more accustomed to the mode of operation of the court, 288 00:32:01,570 --> 00:32:07,930 which always tends to work from a particular to the general and approach specific claims between litigants parties. 289 00:32:07,930 --> 00:32:16,280 Against the backdrop of universal principles such as state consent and universalism. 290 00:32:16,280 --> 00:32:22,608 And I think I should say light of time conclude here, thank you very much.