INTRODUCTION
THE DESIGN FEATURES OF CUSTOMARY
MICHAEL BYERS, SHOOT, POWER AND THE POWER OF RULES All states, from the weakest to the most powerful, have an equal right to participate in the process of customary international law."). REPORT Although some authors question the existence of this rule, most accept it as part of applicable international law.").
Non-negotiated
CUSTOM's DOMAINS
The previous section described three distinctive design features of CIL-it: universal, unscripted, and non-negotiated. Because these features are relatively fixed and cannot be manipulated to the same extent as the design elements of treaties and soft law,84 these features limit when states can turn to the practice of creating international law. Given these limitations, we argue that CIL occurs primarily in three domains: when all countries benefit from a common legal norm with low distribution costs, when powerful countries make visible and sustained commitments to a legal norm, and when states attempt to entrench shared normative values. .
The importance of each of the three distinctive design features varies from context to context, but all three features are important to understanding custom domains.
Custom that Benefits All States
All states met on an equal footing on the high seas and could make free use of the sea for maximum benefit, but no state could independently impose its legislative will on the uses. universal recognition of it. 34; outer space is insusceptible to national or private appropriation" contributed to the rapid acceptance of the principle of non-appropriation - a prohibition of territorial occupation or acquisition - as the usual basic norm for future activities in space.90 The principle has benefited all states, facilitating Becker, The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea, 46 HARV.
As states became increasingly important economic actors in the first part of the 20th century. 34;State Trade Activities” of the Soviet Union and other socialist countries were of particular concern.97 Partly as a result, many states allowed their own national interests to be better protected. As a Chinese author recently explained, interests should continue to adhere to the principle of absolute immunity and should not follow the footsteps of developed countries in accepting the restrictive approach.”98.
Hegemonic Custom
Game theorists label this a "battle of the sexes."108 Ed Swaine applied this analysis to the formation of new usage. We extend Swaine's insight by explaining how custom's distinctive features facilitate the formation of hegemonic practices in a battle of the sexes situation. In short, "[t]he history of the British attempt to prohibit the transatlantic slave trade demonstrates how very difficult it is to achieve a customary law right of interdiction on the high seas."121 That such a custom arises despite the obstacles to its formation is largely due to the seductive campaign waged by the world's then most powerful maritime nation.
To be sure, other factors helped the formation of the habit, especially that "the enforcement of the prescription. The Truman Proclamation and the abolition of the slave trade are examples of successful hegemonic usage. The Secretary of State of the Mexican Ambassador (Castillo Nijera ) (Washington, D.C., July in 5 FOREIGN RELATIONS OF THE UNITED STATES, DIPLOMATIC PAPERS.
Normative Custom
34; [The] consensus that the Geneva Conventions are declaratory of customary international law will strengthen the moral claim of the international community for their compliance because it will emphasize their humanitarian underpinnings and deep roots in tradition and community values."141 General Assembly has two adopted strongly worded and widely supported resolutions on "the right to privacy in the digital age" in 2013 and 2014.143 The Office of the UN Regional and national developments reinforce these emerging norms.14 6 Domestic legislation in a growing number of countries provides a right to data privacy.147 In a landmark ruling in 2014, the European Court of Justice invalidated the EU's Data Retention Directive as a violation of the right to privacy and protection of personal data.148 The following year, special Representatives of the OSCE, OAS and African Union jointly condemned “[untargeted or ‘mass’ surveillance [as] inherently disproportionate and.
Much of the data privacy debate focuses on the application of existing human rights norms in online settings, but is framed in a way that reiterates the legally binding nature of these norms.15 Some. Press Release, Office of the Special Rapporteur of the Inter-American Commission on Human Rights [IACHR], The Office of the Special Rapporteur of the IACHR urges the United States to introduce strong reforms to the NSA's telephone metadata collection program. , U.N. Such a custom is also likely to be vague, which postpones many questions about the specific uses of the norm.
Custom's Overlapping Domains
THE FUTURE OF CUSTOM IN AN AGE OF Sor LAW AND
Custom's Advantages over Treaties: Design
Theodor Meron has argued that the protection of civilians in customary law is important in part because custom, unlike the Geneva Conventions, does not permit unilateral withdrawal and because "reservations to the Conventions may not affect the obligations of the parties under provisions which the reflecting customary law to which they would be subject independently of the Conventions, Meron also notes that "as customary law, the norms expressed in the Conventions may be subject to a process of interpretation. However, it has consistently maintained that some aspects of the Convention, particularly those relating to freedom of navigation, reflect customary international law.178 Critically for our purposes, the United States recognizes that the navigation rules contained in these two. Legal sources are essentially the same.17 9 However, because UNCLOS does not allow reservations,180 it prevents treaty parties from withdrawing from any of its substantive provisions – including provisions, such as UNCLOS's dispute settlement clauses, to which the United States objects. By remaining outside the Convention while selectively complying with some of its provisions such as custom, the United States is, controversially, using CIL to pick and choose those aspects of UNCLOS that favor it, while the accompanying burdens of provisions that disadvantage it be avoided. 81-.
For example, the United States is not a party to the VCLT, but accepts many of its core provisions as customary international law. DEP'T OF STATE, Vienna Convention on the Law of Treaties: Frequently Asked Questions (last accessed August http://www.state.gov/s/l/treaty/faqs/70139.htm ("The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law in the field of the law of treaties."). Houck, Alone on a Wide Wide Sea: A National Security Rationale for Joining the Law of the Sea Convention, 1 PENN .
Custom's Advantages over Treaties: Substantive
Customs' advantages over treaties: substantive norms The box in the upper right-hand quadrant of figure 1 depicts situations. The Tadie decision, discussed above in the context of custom's overlapping domains, provides another example of the substantial advantages of a custom over treaties regulating the same subject area. In the decades that followed, states increasingly embraced Tadi6's substantive extension of the customary laws of war beyond what the Geneva Conventions themselves require.
Interestingly, states had previously considered and rejected exactly such an extension when negotiating Protocols to the Geneva Conventions in the. Charter prohibits the unilateral use of force in response to humanitarian crises in the absence of the UN Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art.
Custom's Advantages over Soft Law: Design
International law has been constantly brought up by some countries when it comes to the issue of the South China Sea. Assuming, for the sake of argument, that the governments speaking out on the South China Sea controversy are at least implicitly sparring over the legal status of the 2002 Declaration, the statements by Japan and the United States can be seen as an attempt to legitimize an essential standard of conduct which China has expressly accepted only as a hortatory promise that can be easily ignored. Put differently, the core design features that distinguish soft law and custom are precisely the subject of dispute between the parties to the South China Sea dispute.
See Nguyen Hong Thao, 2002 Declaration on the Conduct of Parties in the South China Sea: A Note, 34 OCEAN DEV. Beck-man, Legal Regimes for Cooperation in the South China Sea, in SECURITY AND INTERNA-. Duong, Pursuing the Oil Trail: Law of the Sea or Realpolitik-What Good Does the Law Do in the South China Sea Territorial Conflict?, 30 FORDIHAM.
Custom's Advantages over Soft Law: Substantive
The UK has not framed its options as a choice between soft law and hard law; rather, it has invoked the custom as an alternative to both the UN. Our framework also correctly predicts how the UK would seek to develop this habit – by projecting power and raising normative arguments. In the two examples discussed above, why did the United States and the United Kingdom turn to CIL (as well as treaties) rather than engaging with the soft law precedents of the World Bank Guidelines and the R2P principle.
By the late 1990s, the United States had been fighting with developing countries over expropriated property for more than half a century. The United Kingdom relied in part on normative arguments in its 2013 statement on the use of force in Syria. The UK asserted that "[i]f action in the Security Council is blocked, the UK will still be permitted under international law to take extraordinary measures to mitigate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and ending the further use of chemical weapons by the Syrian regime.
