Panel 2.1 / The Theory & Philosophy of Customary International Law and its Interpretation / 24 - 25 May 2019 / Ontological Critiques of CIL Although much of international law is articulated in treaties, customary rules underpin some of that law’s most important normative commitments. After all, as Koskenniemi has noted, we don’t believe that genocide is illegal – let along wrong – solely because of the Genocide Convention. Arguably the entire edifice of international law’s authority rests on a customary basis, underpinning every claim that a given positivist textual commitment matters. Custom’s decline was long anticipated, but it has proved tenacious, in part because it has turned out to be quite useful.
At the same time – perhaps precisely because of its persistent centrality – customary international law, or CIL, has been subjected to trenchant critiques concerning its doctrinal incoherence, irrationality, and irrelevance to the actual decision-making of states. Equally, CIL has been vigorously defended by those for whom custom’s normative character and potential are important.
Yet there is one aspect of CIL on which the two sides of this debate have largely been silent: the ethical foundations of its method. Especially in the hands of its so-called modern practitioners, CIL relies on a highly indeterminate set of constitutive methods that privilege public rhetorical positions over evidence of actual intimate conviction in order to do its principal jurisgenerative work. Simply put, custom relies on hypocrisy.
Now this may be a good thing. We typically think of hypocrisy as inherently bad, but as a matter of method, this is not a necessary, nor necessarily obvious, judgment. But either way, the descriptive fact of CIL’s deployment of a method that is technically hypocritical is consequential – especially for the interaction of custom with human rights, which has always exhibited a strong concern with morality alongside (and as part of) its legal development.
The kind of CIL that has been most successful in advancing and legitimating a rights agenda has adopted two related innovations: An expressly normative commitment and a technically hypocritical method converge, allowing greater development of customary rules than either a more normatively restrained or methodologically fastidious approach would allow. But this means the most efficacious form of CIL, from a rights perspective, rests on a problematic epistemological and ethical foundation. For, apart from the ethical concerns hypocrisy usually entails, CIL derives rules from what actors say in ways that, in any other discipline, would immediately be recognized as analytically naive.
This article first reviews the theory and operation of CIL – the standard view, principal critiques, and CIL’s particular reliance on indeterminacy. Then it turns to a consideration of how modern CIL privileges rhetorical statements and ignores contrary evidence to construct normatively preferred claims, in ways that are best described as technically hypocritical and methodological heterodox – if also necessary to the realization of modern custom’s normative desires. That custom survives and even thrives is testament to the value of plastic and malleable tools.
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