The International Law Association’s Statement of Principles Applicable to the Formation of General Customary International Law (2000) was a welcome addition to an admittedly voluminous literature. Stepping into the void of authoritative commentary, it balanced an estimable representation of contemporary thinking while it also tendered sometimes controversial views on unresolved matters. Though nominally on the same subject, the International Law Commission (ILC) project offers different strengths and faces different challenges. As the First Report by the Special Rapporteur, Sir Michael Wood, has noted, the ILC’s relationship with States, in particular, provides it with a special vantage and authority. This vantage may also make its pronouncements less tendentious, and more conservative, in character. I’d like to assess the (very early) returns on how this potential differentiation is faring. For sake of brevity, I will focus mostly on a likely harbinger, the treatment of State practice, as reflected in the Draft Conclusions already adopted by the Drafting Committee—including parts of the Second Report bearing upon them. Any stylistic or substantive criticism of the existing work recognizes, of course, that it is at an early stage, and that one of ILC’s many virtues is the deliberate and careful evolution of its projects.

A primary goal of the International Law Commission’s work on the identification of customary international law is to offer “guidance to those called upon to identify the existence of a rule of customary international law,” particularly national court judges. The ILC report, however, should be no less useful to participants in international adjudication. The report’s impact might be particularly significant in investment arbitration, which, given the field’s growing importance and impact, could greatly facilitate the ILC’s principal mandate of promoting the “progressive development of international law.”

Investment arbitration is proving hugely significant for the development of international law. The United Nations Conference on Trade and Development reported that, at the end of last year, there were 568 known cases brought under international investment agreements, including 57 cases brought in 2013 alone. There have been 98 different State respondents, including the United States, which reportedly is the ninth most frequent respondent State.

This Commission project is a useful one. It rests on exemplary work by the Special Rapporteur. I would hope that brief mention of a few matters that may benefit from further reflection at this stage could be of some assistance as work on this matter continues.

We are grateful to AJIL Unbound for organizing this symposium on the work of the International Law Commission on identification of customary international law. We are particularly grateful to all who have contributed to the symposium for their interest and insights.

We shall not here reply comprehensively to everything that has been said. Many points will be addressed in the Special Rapporteur’s third report, to be submitted to the UN Secretariat toward the end of March 2015 in preparation for the Commission’s session beginning in May 2015. We would only say that many of the points made in the symposium thus far seem eminently sensible, and will hopefully be seen as such by the Commission. It has to be noted, however, that the work of the Commission is collegiate, and the eventual output does not belong to the Special Rapporteur (who is just a facilitator) but to the Commission as a whole—and eventually to the General Assembly and the international community.

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.

In the lead essay in this symposium, Professor Erika de Wet contends that notwithstanding all of the post-Cold War enthusiasm for a right to democratic governance and the non-recognition of governments resulting from coups and unconstitutional changes of government, a customary international law norm on the nonrecognition of governments established anti-democratically has not emerged. De Wet’s position, primarily based on state practice in Africa, is vigorously debated by six commentators.

Jure Vidmar agrees with de Wet that the representative legitimacy of governments still lies primarily in effective control over the territory of the state. Vidmar, in his contribution, examines recent collective practice when neither the incumbent government nor the insurgents control the territory exclusively, arguing that in such cases states may apply human rights considerations. Like de Wet, however, Vidmar regards state practice as ambivalent and unamenable to ideal-type distinctions between coups (against a democratically legitimate government) and regime changes (to a democratically legitimate government).

In the 1990s, international legal scholarship was marked by democratic idealism and the belief that democracy had become the only legitimate political system. The more radical proposals even speculated about legality of pro-democratic intervention. Such re-conceptualizations of international law were met with determined criticism. However, even skeptical voices were willing to admit that democracy nevertheless did have some limited normative force in post-Cold War international law. While it would be an exaggeration to say that nondemocratic governments are illegitimate per se, a consensus started to emerge that international law prohibited at least a coup against a democratic government. In the absence of a workable definition of substantive democracy for international law purposes, a democratic government was understood as an authority which comes to power in an electoral process that is reasonably free and fair.

Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of a de jure government under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.

Recognition is a formal expression by its author about how she perceives the situation to which recognition is extended. Recognition simultaneously constitutes a means for its author to make known her own view of a situation, including the legal consequences, if any, that the author attributes to the situation, and on which the author intends to base her policy. Albeit a political act, recognition deeply affects the international legal system and carries wide-ranging legal effects in both the international and domestic legal orders, especially when it comes to the recognition of states and governments.

Erika de Wet argues that state practice reveals that democratic legitimacy has not established itself alongside effective control for the purpose of recognition of governments in customary international law. My response is that we do not need to look to custom, difficult as it is to identify, when we have legally binding obligations such as those set forth in both the OAS Charter and the Inter-American Democratic Charter (IADC), not to mention the comparable European and African instruments. The new gold standard for recognition, I submit, is democratic legitimacy and respect for human rights, which has replaced “effective control.”

AJIL Unbound is pleased to announce three commentators who will discuss the article by Pierre-Hugues Verdier and Erik Voeten entitled “Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory.” The article argues that rational choice scholars have overlooked key characteristics of customary international law and that those characteristics undermine the enforcement of customary norms through decentralized punishment. Instead, Verdier and Voeten contend, states may comply with customary international law even if their short-term interests are to defect, because states know that their decision to defect generates precedent that undermines the norm as a whole. Our commentators on this article are, first, Professor Tim Meyer, from the University of Georgia, who maintains that Verdier and Voeten overstate the distinction between custom and treaties. Second, Professor Jens David Ohlin, from Cornell, asks what happens to custom when states cannot appeal to long-term interests. He argues that compliance in these “one-shot” scenarios can be understood partly by considering the formation of plans by states which may act rationally in carrying through on their obligations without re-evaluating their plans. Finally, Professor Alejandro Lorite Escorihuela, from the University of Quebec at Montreal, argues that the role of precedent is clear from both the doctrine and practice of customary international law, so that it is unclear what rational choice methodology is adding to our understanding of custom, a critique he buttresses in part through an examination of some of the examples discussed in the article.

Janie Chuang discusses important shifts in the way that American policy makers and activists have defined and fought human trafficking. As she shows, key aspects of the 2000 UN Protocol’s definition of trafficking have been whiplashed by changing political winds emanating from the Bush and Obama administrations. In the Bush years, a strange bedfellows network of feminists, evangelicals, and neo-conservatives directed American trafficking policy primarily toward sexual exploitation, pushing for prohibitions not only on forced but also on voluntary prostitution. Other types of trafficking were neglected. The Obama administration and its own set of civil society associates gusted other ways. Among other moves, it reduced the focus on sex, dropped the view that voluntary prostitution constituted trafficking, enlarged the trafficking concept to include all forced labor (whether or not involving movement), and rebranded the expansive new notion as slavery.