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Published online by Cambridge University Press: 20 January 2017
In this contribution to AJIL Unbound, I outline a moral judgment-based account (MJA) of customary inter-national law. On the MJA, moral judgment plays a dual role in the formation of customary international law. First, MJA is part of a disjunctive analysis of opinio juris, which involves a moral judgment about what the law ought to be or what it justifiably is. Second, the interpretive process of adducing a customary norm from state practice and opinio jurischaracteristically requires some moral judgment on the part of the interpreter. Along the way, I draw attention to two points at which the MJA departs significantly from the analysis presented in the International Law Commission (ILC)’s Second Report by Special Rapporteur Sir Michael Wood, on the identification of customary international law.1 First, by more sharply separating state practice from opinio juris, MJA avoids systematically double-counting the same facts as both opinio jurisand state practice. Second, MJA offers an effective response to the so-called “paradox of custom”, according to which a customary norm can only come into existence if a sufficient number of states mistakenly believe (or pretend to believe) that it already exists.
1 Int’l Law Comm’n, Second reporton identification of customary international law, by Michael Wood, Special Rapporteur, UNDoc. A/CN.4/672 (2014) [hereinafter ILC 2nd report].
2 See, e.g., Brian D. Lepard, Customary International Law: A New Theory With Practical Application Sch.8 (2010).
3 ILC 2nd report, supra note 1.
4 This includes “the conduct of States ‘on the ground’, diplomatic acts and correspondence, legislative acts, judgments of national courts, official publications in the field of international law, statements on behalf of States concerning codification efforts, practice in connection with treaties, and acts in connection with resolutions of organs of international organizations and conferences”. Id. at 21.
5 This includes “statements by States which indicate what are or are not rules of customary international law, diplomatic correspond-ence, the jurisprudence of national courts, the opinions of government legal advisers, official publications in fields of international law, treaty practice, and action in connection with resolutions of organs of international organisations and of international conferences”. Id. at 67.
6 Curtis A. Bradley, Customary International Law Adjudication as Common Law Adjudication, in Custom’s Future: International Law in a Changing World (Curtis A. Bradley ed., 2016).
7 North Sea Continental Shelf(Ger. v. Den./Ger. v. Neth.), Judgment, 1969 ICJ REP3, at 44-45, para. 78 (Feb. 20).
8 ILC 2nd report, supra note 1, at 51.
9 SeeJohn Tasioulas, Opinio Jurisand the Genesis of Custom: A Solution to the ‘Paradox’, 26 AUSTL.Y.B.INT’L L.199 (2007).
10 ILC 2nd report, supra note 1, at50-51.
11 John Tasioulas, In Defence of Relative Normativity: Communitarian Values and the NicaraguaCase, 16 Oxford J. Legal Stud.85 (1996) and John Tasioulas, Customary International Law and the Quest for Global Justice, in The Nature of Customary Law: Legal, Philosophical and Historical Perspectives 307(AmandaPerreau-Saussine & James B. Murphy eds., 2007).
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