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The Nature of the Subjective Element in Customary International Law Author(S): Olufemi Elias Source: the International and Comparative Law Quarterly, Vol

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The Nature of the Subjective Element in Customary International Law Author(S): Olufemi Elias Source: the International and Comparative Law Quarterly, Vol British Institute of International and Comparative Law The Nature of the Subjective Element in Customary International Law Author(s): Olufemi Elias Source: The International and Comparative Law Quarterly, Vol. 44, No. 3 (Jul., 1995), pp. 501- 520 Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/761200 . Accessed: 09/10/2014 14:21 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Cambridge University Press and British Institute of International and Comparative Law are collaborating with JSTOR to digitize, preserve and extend access to The International and Comparative Law Quarterly. http://www.jstor.org This content downloaded from 152.3.43.182 on Thu, 9 Oct 2014 14:21:59 PM All use subject to JSTOR Terms and Conditions THE NATURE OF THE SUBJECTIVE ELEMENT IN CUSTOMARY INTERNATIONAL LAW OLUFEMIELIAS* DOCTRINEgenerally holds that customary international law results from (a) the uniform and consistent conduct of States, undertaken with (b) the conscious conviction on the part of States that they are acting in conform- ity with law, or that they were required so to act by law. The purpose of this article is to examine the nature of this "conviction", or "psychological element", or opinio juris sive necessitatis, as it is sometimes called, with a view to comparing its role in the customary law process with that played by the consent of States. It has been said that:1 as regardsthe natureof the psychologicalelement, doctrinesare in con- flict-the positivistsreduce opinio juris to an act of will of numerousStates to be boundby a tacitagreement (the voluntaristconception). The objectiv- istsstate that the opinioconstitutes the obligatoryrecognition of a pre-exist- ing right(the intellectualistconception). In other words, while the "voluntarist" (or consensualist) conception equates opiniojuris and the wilP of States, the "intellectualist" conception views the two notions as being distinct. It is this "conflict" that is the sub- ject of this article. MacGibbon noted in 1957 that the majority of writers on this subject have "broached the problem without pursuing its impli- cations".3 It will be argued that this psychological element is no different from the consent of States, or more precisely, consensual acceptance, in one form or another, of the legal character of a given course of conduct, and that this conclusion provides a better understanding of the operation of customary international law.4 * Lecturer in Law, University of Buckingham. I would like to thank Professor M. H. Men- delson QC, Professor of International Law, University College London, for his comments on an earlier version of this article. I am also grateful to Chin Lim of the University of Wales, Aberystwyth, and to Gordon Goldberg, Senior Lecturer, University of Buckingham. I alone am responsible for the views expressed here. 1. See (1966) 10 I.C.J. Pleadings. Oral Arguments and Annexed Documents, p.8, per Dr Verloren van Themaat, arguing on behalf of the Republic of South Africa in the South- West Africa case. 2. Cf. Judge Azevedo's statement in the Asylum case I.C.J. Rep. 1950, 266, 336 that: "The opponents of the voluntary theory even go so far as to say that it is impossible to seek a psychological element which remains necessarily intangible." 3. See MacGibbon, "Customary International Law and Acquiescence" (1957) 33 B.Y.B.I.L. 115, 131. 4. This paper will not deal with the question whether a State needs to have consented to a rule of customary international law to be bound by it. The point under investigation has nothing to do with the question whether a State needs to have consented to a rule of custom- 501 This content downloaded from 152.3.43.182 on Thu, 9 Oct 2014 14:21:59 PM All use subject to JSTOR Terms and Conditions 502 Internationaland ComparativeLaw Quarterly [VOL.44 Discussionof the role of opiniojuris can for our purposesbe centred aroundtwo questions.The first relates to the role of opinio juris in the law-creatingprocess (i.e. whetherit is declaratoryor constitutiveof the law).The secondrelates to its role in qualifyingState practice, in the sense of distinguishingbetween acts whichare legallyrelevant and those which are not; it is essentialto distinguishbetween practice which is considered to be legal,on the one hand, and practicebased on courtesy,morality or fairness,and the recognitionby Statesof the legal qualityof practice(i.e. opiniojuris) is consideredto be the touchstoneof this distinction.5 It shouldbe apparentthat this second questionis inextricablylinked to the first,if the issueis recognisedas beingone of cognition.In otherwords, the question"How is a ruleof customarylaw created?" (the firstquestion) andthe question"Is this ruleone of customarylaw or of morality/courtesy etc?"(the second question)become indistinguishableif we ask "Howdo we identifya rule of customarylaw?" Nevertheless, this discussionwill be facilitatedif the two questionsare treatedseparately. I. THE FORMATION OF CUSTOMARY LAW INthis section the role playedby opiniojuris in the customarylaw-making processwill be comparedwith the role played by consent.The issue has been describedas a debatebetween the constitutiveand declaratory theo- ries of customaryinternational law. Opiniojuris is declaratoryif it serves only to demonstratethe existenceof customarylaw whicharises indepen- dently thereof (the "intellectualist"conception).6 It is constitutiveif it is takento be the sourceof the law,i.e. if the law is created(whether exclus- ively or in conjunctionwith other elements,such as Statepractice) by the opiniojuris of States (the "voluntarist"conception).7 A. TheProblem Discussionsof opiniojuris virtuallyalways make referenceto the logical difficultyposed by the declaratoryview in general:"How can customcre- ate lawif its psychologicalcomponent requires action in consciousaccord- ancewith law pre-existing the action?"8It is widelyacknowledged that the ary law for it to be bound thereby. Also, the question of the continued utility of customary law as a means of law-making in the contemporary international society (see e.g. Simma, "Consent: Strains in the Treaty Process", in MacDonald and Johnston (Eds), The Structure and Processes of International Law (1983), p.485) will not be discussed here. 5. See e.g. Brownlie, Principles of Public International Law (4th edn, 1990), p.7. The point on which doctrine is divided in this respect is whether opinio juris is capable of per- forming this task of differentiation satisfactorily, not whether, in principle, the task needs to be performed. See Thirlway, "The Law and Procedure of the International Court of Justice: Part Two" (1990) 61 B.Y.B.I.L. 1, 43-44. 6. See supra n.1. 7. Ibid. 8. D'Amato, The Concept of Custom in International Law (1971) pp.66-68 and 47-56 (including a survey of the literature on this circularity problem). This content downloaded from 152.3.43.182 on Thu, 9 Oct 2014 14:21:59 PM All use subject to JSTOR Terms and Conditions JULY 1995] Opinio Juris in International Custom 503 declaratoryconception of opiniojuris is simplyunable to accountfor the creationof new rulesof customarylaw, requiring as it does thatsomething mustalready be legal before it can become law. One way roundthis prob- lem has been to suggestthat duringthe period of formationof the "new" rule, the States acting in accordancewith it were mistaken, and they erroneouslybelieved that theiractions were requiredby law when in fact they were not.9But it is difficultto acceptthat ill-foundedbeliefs are the source of customary law.10The declaratorytheory, therefore, seems inadequate." B. The Suggested Solutions This inadequacyhas evoked a numberof responses.One suggestedsol- utionis to abandonaltogether or minimisethe need for proof of a psycho- logical element.12But opinio juris cannot be abandonedin this way. As Brownlie has written,"it is in fact a necessaryingredient. The sense of 9. This was at one time suggested by Cheng, "United Nations Resolutions on Outer Space: 'Instant' International Customary Law?" (1965) 5 Indian J.I.L. 23, 45, n.107, and Kelsen, "Th6orie du droit international coutumier" (1939) 1 Rev. int. de la theorie du droit 253, 263. 10. See Suy, Les Actes Juridiques Unilaterauxen Droit International Public (1962), pp.223 et seq. and Kelsen, ibid. D'Amato, op. cit. supra n.8, at p.66, stresses the difficulty in imagin- ing that "all States participating in custom-formation were erroneously advised by their counsel as to the requirements of prior international law". 11. Another related problem with the declaratory theory is that it necessarily implies that custom cannot be a source of law; opinio juris is simply evidence of law which is created by another source. This is similar to the criticisms directed at the wording of Art.38(1)(b) of the ICJ Statute, which speaks of "International custom, as evidence of a general practice accepted as law". As Anzilotti wrote, the reverse is the truth; "it is precisely the generally accepted practice which constitutes customary law" (Corso di Diritto Internazionale, Vol.I (3rd edn, 1928), p.99). Similarly, the criticisms of Hudson's proposals in the International Law Commission seem to confirm this view. He had argued that the practice should be in accordance with prevailing international law, but the other members disagreed on the basis that the character of custom as a formal source of law would be denied: see (1950) I Y.B.I.L.C. 1, 4-7. The wording of Art.38(1)(b), unless it is the result of a mistake or negli- gence on the part of the drafters, smacks of the work of the historical school of legal theory, who found the true source of law in the spirit of the people (Volksgeist).
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