Review: “The Obsolescence of Customary International Law”

By Susan Yoshihara, Ph.D. | December 4, 2014

NEW YORK, December 5 (C-Fam) Abortion advocates have argued unsuccessfully for decades that abortion is a human right under customary international law. Recently, they have argued it is a customary right under international humanitarian law. Both pursuits have been a waste of time according to a new study demonstrating the obsolescence of custom in an era of treaty law.

“A verbal contract is not worth the paper it is printed on,” quipped film producer Samuel Goldwyn. The study’s author, Fletcher School professor Joel Trachtman says the aphorism sums up the reason nations have moved beyond the 300 year-old ethic of customary law that evolves over many years of practice but isn’t negotiated or necessarily consented to.

Of the 300 customary laws the study identified, only 13 had not been codified in treaties. In an era in which nations don’t just have to coexist but must cooperate in a complex global economy, treaty law’s specificity is preferred. It is more legitimate in the age of democratic governments, Tracthman notes, and it is more practicable than ever at a time when delegates can easily travel to negotiations and international conferences.

Tractman notes that some legal experts today promote the idea of “instantaneous customary law” which is based upon non-binding UN General Assembly resolutions. But he argues that such claims are inconsequential since nations no longer rely custom except in widely accepted cases such as the right of warships in distress to enter a port and the duty of combatants to disobey unlawful orders.

Tractman says customary law is used to “sneak rules past inattentive states” and that it is elitist in that it requires translation by a academics and international judges. The elites see themselves as priests and priestesses possessing “superior normative judgment” of “reading mysterious entrails to determine what the law is.” He concludes that international lawyers should “focus less on advocacy” and “more on assisting international processes of treaty-making.”

Other beneficiaries of custom are NGOs pressing specific agenda, Tractman finds. “Instead of hoping that we can sneak or bootstrap a desired CIL [customary international law] past a target state or group of states, we should engage with those states,” he concludes.

Tractman’s article is brief and readable and provides extensive quantitative substantiation. Practitioners will find useful his appendix listing the 300 identified rules, the historical legal sources which first recognized them, and the treaty articles which later codified them.

Using game theory, Tractman demonstrates the way that customary law is more likely than treaties to produce an adversarial international climate. “It is difficult to say how the chicken game can be avoided,” he notes, a situation where nations act like teenagers racing cars toward one another hoping the other swerves first and complies with the law. Customary law furthermore gives rise to “free riders” who benefit from the “first movers” who comply with standards ahead of the others.

International abortion advocates rely on customary international law arguments to purvey the claim that abortion is a human right and an international obligation binding on all nations. But as C-Fam legal director Stefano Gennarini told the Friday Fax, Trachtman’s analysis shows that there is “no such thing” as customary human rights law. “Only seven of the 300 identified customs refer to human rights and almost all of them could be classified as jus cogens and not custom.” Jus cogens refers to a fundamental principle of law that all agree upon and which cannot be violated lawfully. That bolsters the traditional understanding that the formation and development of custom is about relations between states and not with how states treat their citizens, Gennarini said.

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