Jonathan Tan Yong Jin

Class of 2014
Public International Law Research Paper
For Reference Only

CIL – Confusingly Incoherent Law

4,000 words

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
I. Introduction

The law governing the formation of Customary International Law (“CIL”) is confusingly
incoherent law. Yet, a coherent „rule of recognition‟ is especially fundamental to CIL because
unlike treaties, CIL‟s formation is decentralised and unwritten – emanating from states‟
practices and beliefs – and there is no centralised apex supra-national judicial institution to
authoritatively resolve legal ambiguities1.This paper seeks to reconcile this incoherence in
CIL‟s formation. Part II defines „sovereign equality‟ and identifies the „voluntarist‟
conception of CIL which emphasizes state sovereignty by premising CIL‟s formation on the
consent of individual states. Part III argues that CIL is formed by a majority consensus of
states, and is thus inconsistent with the „voluntarist‟ theory and its underlying concepts of
individual state consent and absolute state sovereignty. Part IV highlights the incoherent
judicial approaches towards establishing consensus and emphases on state practice vis-a-vis
opinio juris. Part V posits a pragmatic approach towards reconciling the incoherence in CIL‟s
formation, coloured by the objectives each norm seeks to realise.

II. Of Sovereign Equality and Consent

There are two sides to the coin to the principle of sovereign equality. First, is the principle of
state sovereignty, which under the Westphalian model, is absolute, viz sovereign states
enjoyed absolute control over persons and activities within their territorial borders 2 or
domestic jurisdiction 3 , beyond the purview of international regulation. 4 Second, is the
principle of co-equality of states (“COES principle”), which requires recognising states as de
jure co-equal sovereigns (“COES”), notwithstanding de facto differences or inequalities. As
highlighted in the Friendly Relations Declaration, all states are co-equal juridical entities with
equal rights and duties, “notwithstanding differences of an economic, social, political or other
nature”.5

In this regard, the voluntarist theory of CIL, which upholds the consent of every state as the
basis for CIL‟s formation, resonates with the Westphalian conception of states as absolute
sovereigns beyond the purview of international regulation because states are bound by CIL
only if they so consent. The oft-cited locus classicus for this voluntarist6 conception is the S.S.
Lotus Case (“Lotus”), where the court declared, “[i]nternational law governs relations
between independent states. The rules of law binding upon States therefore emanate from
their own free will... restrictions upon the independence of States cannot therefore be
presumed.” 7

1
Goldsmith and Levinson, Law for States, Harvard Law Review (May 2009) Vol. 122 No. 7, 1791.
2
Island of Palmas Case, Netherlands v US (1928) 2 RIAA 829 (Permanent Court of Arbitration).
3
“Domestic jurisdiction” may shift: Nationality Decrees in Tunis & Morocco (1923) P.C.I.J. Ser. B. No. 4.
4
Thio Li-Ann, The Historical Origins and Contemporary Evolution of International Human Rights Law:
Retrospect and Prospect (2009) 21 SAcLJ 261.
5
Declaration on Principles of International Law, Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations, GA/Res/25/2625(XXV).
6
Goldsmith, supra note 1, at 1846.
7
The S.S. Lotus, 1928 P.C.I.J. Series A., No. 10, at 19.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
III. (Consent/ Consensus)-based International Law?

However, the voluntarist conception of CIL does not reflect the reality of how CIL is formed.
CIL‟s formation does not hinge on the unanimous consent of all individual states. First, the
consensus of a majority of states suffices to create CIL which binds all states. In the Fisheries
Jurisdiction Case, in reaching its conclusion that there is a CIL norm of according
preferential fishing rights to coastal states especially if such states are dependent on their
coastal fisheries, the International Court of Justice (“ICJ”) noted that state practice by a
“large majority” of states showed “overwhelming support” for the norm.8 Second, absent this
majority, states cannot self-declare CIL. As the ICJ clarified in Case Concerning Military
and Paramilitary Activities In and Against Nicaragua (Merits) (“Nicaragua”), “[t]he mere
fact that States declare their recognition of certain rules is not sufficient for the Court to
consider these as being part of CIL...The shared view of the Parties...is not enough”.9 Third,
once a norm becomes CIL, it binds all states, except persistent objectors to the norm. As the
ICJ emphasized in the North Sea Continental Shelf Cases (“North Sea”), the very nature of
CIL means that CIL applies with “equal force for all members of the international community,
and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by
any [state] in its own favour”.10 Thus, the process of forming CIL is inconsistent with the
voluntarist theory and the Westphalian conception of state sovereignty as absolute and
unbeholden to CIL. Nevertheless, as CIL equally binds all states, CIL‟s effect is arguably
consistent with the COES principle.

To maintain the process of CIL‟s formation as hinging on individual state consent, academics
have expanded the notion of consent to include “implied consent” or acquiescence and read it
into the opinio juris and persistent objector doctrines. First, a state‟s non-objection amounts
to it acceptance of the norm as legally-binding, viz opinio juris. However, non-objection may
be due to reasons of comity and convenience. Thus, opinio juris should not be invariably
inferred from non-objection. As the ICJ emphasized in Lotus, acquiescence is inferred “only
if such abstention were based on their being conscious of having a duty to abstain”.11 Thus,
in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (“NWAO”), the
ICJ was apprehensive to infer that “non-recourse to nuclear weapons over the past fifty years
constitutes the expression of opinio juris” because some states reasoned that non-recourse
was “merely because circumstances that might justify their use have fortunately not arisen”. 12
With regards to the persistent objector doctrine, a state who persistently objects to a norm
before the norm becomes CIL is not bound by the norm. Conversely, non-objection manifests
acquiescence to being bound by the norm. Thus, in the Anglo-Norwegian Fisheries Case, the
ICJ stated that even if the ten-mile rule in delimiting territorial sea was a CIL norm, it “would
appear to be inapplicable as against Norway inasmuch as she had always opposed any

8
I.C.J. Rep. 3, at 26.
9
I.C.J. Rep. 14, at 97
10
I.C.J. Rep. 3 (1969), at 43.
11
Lotus, supra note 7, at 28.
12
I.C.J. Rep. (1996), at 226.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
attempt to apply it to the Norwegian coast”.13 However, this view is problematic. First, a state
who persistently objects to a norm does not preclude the norm from becoming CIL, but only
prevents the state from being bound by that nom. Second, non-objection to a norm before the
norm becomes CIL does not invariably amount to consent to being bound by the norm, but
may be due to other reasons such as political inexpedience14. Third, it is unclear why a state
must persistently object to manifest a lack of consent.

Further, arguably the conception of state sovereignty posited in Lotus is more limited than the
Westphalian conception of absolute state sovereignty. This was astutely pointed out by Judge
Shahabuddeen in his dissenting opinion in NWAO. He opined that there is “no convincing
ground” to argue that “the „Lotus‟ Court moved off on a supposition that states have an
absolute sovereignty”.15 Noting that the “existence of a number of sovereignties side by side”
limits “the freedom of each State to act”, Judge Shahabuddeen identified that these “defining
limits are implicit in the reference in „Lotus‟ to „co-existing independent communities‟”.16
Thus, he concluded that the Lotus presumption was inapplicable to the use of nuclear
weapons because it “could destroy mankind and civilizations and thus bring to an end the
basis on which states exist”.17

IV. Criterion’s Incoherent Law

A. Consensus – Incoherent Lexicon

Clearly, CIL‟s formation is not predicated on the Westphalian conception of state sovereignty
as absolute, which would uphold individual state consent as the ultimate determinant of CIL‟s
formation. CIL is formed by the consensus of a majority of states and is not precluded by the
lack of consent of individual states. Adopting Norman and Trachtman‟s view of the process
of CIL‟s formation as “an alternative mechanism for global legislation”, 18 CIL would be
effectively created by a majority „voting‟ system, albeit a system where the voting process is
informal because CIL is not simply „passed‟ by states meeting in a „global parliament‟. 19
However, „majority‟ voting begs three questions. First, which states‟ „votes‟ will be counted?
Second, how many „votes‟ constitute a „majority‟? Third, will greater weight be accorded to
the „votes‟ of certain states? However, there is no clear consensus on these three issues.
„Consensus‟ is „incoherent‟ lexicon. Thus, there is no clear answer whether the process of
establishing „consensus‟ constrains the second aspect of the principle of sovereign equality,
viz the COES principle.

13
I.C.J. Rep. 1951, at 116.
14
Guzman, Saving Customary International Law, (2005) 27 Mich.J.I.L. 141.
15
NWAO, supra note 12, at 393.
16
Ibid.
17
Ibid.
18
Norman and Trachtman, The Customary International Law Game (2005) 99 A.J.I.L. 541, at 569.
19
Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge, 2011), at 151.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
i. Which State‟s Vote will be Counted?

Generally, a state‟s „vote‟ will be counted if its interests are affected by the norm. This was
highlighted in the North Sea, where the ICJ emphasized that state practice, “including that of
states whose interests are specially affected”, should be “both extensive and virtually
uniform”.20 Thus, in assessing whether the equidistant principle in delimiting the continental
shelf was a CIL norm, the ICJ had to examine the state practice of maritime states, as
opposed to land-locked states.21

However, the term “specially affected” is vague and has been open to flexible interpretation
to include all states. This foments incoherence in CIL's formation. In NWAO, Judge
Shahabuddeen noted the “argument was made that the Nuclear Weapon States were „states
whose interests are specially affected‟”. 22 However, he argued that the “the test of which
States are specially affected turns not on the ownership of the weapon, but on the
consequences of its use, and from this perspective, “all States are equally affected, for, like
the people who inhabit them, they all have an equal right to exist”.23 Ostensibly, considering
the „votes‟ of all states does not violate the COES principle.

ii. How Many Votes Constitute a Majority?

There is no coherent guide on how many votes constitute the requisite majority. In the
Fisheries Jurisdiction Case, in reaching its conclusion that there is a CIL norm of according
preferential fishing rights to coastal states especially if such states are dependent on their
coastal fisheries, the International Court of Justice (“ICJ”) noted that state practice by a
“large majority” of states showed “overwhelming support” for the norm.24 However, unlike
super-majority or simple-majority, „large majority‟ eludes precise definition. Thus, it sheds
more heat than light in ascertaining how many votes constitute the requisite majority.

Similarly, no magic number was provided by the Singapore Court of Appeal in Yong Vui
Kong v. Attorney General, 25 which examined whether there was a CIL norm prohibiting the
mandatory death penalty (“MDP”) as an inhuman punishment. Defence counsel asserted that
14 states still retained the MDP for drug-related offences, while the Attorney-General posited
a higher figure of 31 states.26 In YVK, although a super-majority of states did not impose the
MDP for drug-related offences, the court concluded that the MDP prohibition was not a CIL
norm, absent “extensive and virtually uniform practice” of all states.27 This suggests that the
„majority‟ lies somewhere between super-majority and near unanimity. Arguably, such a high
threshold of „majority‟ may be attributable to the ostensibly stringent requirement that before
a CIL norm can form part of the common law in Singapore, it “must be clearly and firmly

20
North Sea, supra note 8, at [73].
21
Ibid.
22
NWAO, supra note 12, at 414.
23
NWAO, supra note 12, at 414.
24
I.C.J. Rep. 3, at 26.
25
[2010] 3 S.L.R. 489 [“YVK”].
26
Ibid., at [43] and [95].
27
Ibid., at [96]-[98].

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
established”. 28 However, like „large majority‟, the phrase „clearly and firmly established‟
eludes precise definition.

Ostensibly in these cases, the courts simply „counted heads‟, which suggests that each state
has one „vote‟. If so, it would be consistent with the COES principle because all states are
viewed as COES with each having an equal say in CIL‟s formation.

iii. Will Greater Weight Be Accorded to Certain „Votes‟?

However, not everything that can be counted counts. In examining opinio juris and state
practice, greater weight is accorded to certain states. First, „specially affected‟ states are
accorded greater weight because their interests would be affected if the norm becomes CIL.
As Judge Tanaka explained in his dissent in North Sea, the state practice of “a large maritime
country” cannot be seen “as having exactly the same importance as similar acts by a land-
locked country which possesses no particular interest in the delimitation of the continental
shelf”29.

Second, greater weight is accorded to „powerful‟ states. Judge Schwebel, in his dissent,
clearly embraced the idea of according greater weight to “the practice of five of the world‟s
major powers, of the permanent members of the Security Council, significantly supported for
almost 50 years by their allies and other States sheltering under their umbrella”. 30 Thus, he
argued that the General Assembly resolutions which declared the prohibition of the use of
nuclear weapons “far from giving rise...to „nascent opinio juris‟”, could be dismissed as “a
mark of ineffectuality in law formation”.31

Clearly, according greater weight to „powerful‟ or „specially affected‟ states contravenes the
COES principle. The COES principle requires treating states as de jure COES with equally
weighted votes, notwithstanding their de facto differences such as military or political power.
However, according weight to „powerful‟ states would treat some states as first among equals.
As Judge Shi cautioned in his declaration in NWAO, “as the principal judicial organ of the
United Nations”, the ICJ “cannot view this „appreciable section of the international
community‟ in terms of material power”.32 Noting that “today the international community of
States has a membership of over 185 states” and that “the appreciable section…by no means
constitutes a large proportion of that membership”, Judge Shi declared that “any undue
emphasis on this „appreciable section‟ would...be contrary to the very principle of sovereign
equality of States”33 (viz, COES principle).

B. State Practice and Opinio Juris

28
Ibid., at [90].
29
North Sea, supra note 8, at 176.
30
NWAO, supra note 12, at 312.
31
Ibid., at 318.
32
Ibid., at 278.
33
Ibid.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
Although the CIL‟s formation requires the twin requirements of state practice and opinio
juris to be established, courts have vacillated in their emphasis on each requirement, and
courts have not provided a coherent basis for doing so.

Where the norm‟s content is of a moral nature, courts seem to emphasize opinio juris, and
downplay the importance of state practice. Roberts refers to this approach as „modern
custom‟.34 Kirgis thus suggests that CIL‟s formation should be viewed on a „sliding scale‟:
the “more destabilising and morally distasteful the [state] activity – for example, the
offensive use of force or the deprivation of fundamental human rights”, the more readily will
courts find the requisite state practice or opinio juris, and even “substitute one element for the
other”.35 This is evident in the ICJ‟s line of reasoning in Nicaragua, where the ICJ concluded
that the non-use of force and non-intervention are CIL norms. In Nicaragua, the ICJ
proclaimed that state practice need not “be in absolutely rigorous conformity with the rule”
and that it is sufficient if state practice is “in general...consistent with such rules”. 36 The ICJ
also downplayed state practice inconsistent with the norm as “breaches of the rule, not as
indications for the recognition of a new rule”. 37 Using this reasoning, the ICJ apparently
discounted and ignored state practice contrary to those norms. This lax treatment of state
practice has come under heavy academic criticism. Kirgis argues that the ICJ “stresses opinio
juris at the expense of state practice” 38 and D‟Amato criticises the ICJ for ignoring state
practice.39 Arguably, the ICJ in Nicaragua was also lax in establishing opinio juris when the
ICJ stated that the opinio juris may “deduced from...the attitude of the parties and states
towards certain General Assembly resolutions”, especially the Friendly Relations
Declaration40.

However, Kirgis‟ „sliding-scale‟ approach regarding norms of a moral nature does not seem
to be uniformly adopted by all courts. One illustrative example from international human
rights law is Filartiga v. Pena-Irala (“Filartiga”). 41 In Filartiga, a civil claim was brought
by a foreign victim for the tortious act of wrongfully causing death by torture which occurred
in a foreign country. As the US District Court could only assume jurisdiction under section
1350 of the American Alien Tort Claims Act42 if the tort was “committed in violation of the
law of nations...”, the US District Court had to ascertain whether there a CIL prohibition on
torture by a state official against a person held in its custody. The court concluded in the
affirmative, emphasizing that the international community has come to “recognise the
common danger posed by the flagrant disregard of human rights”.43

34
Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, A.J.I.L. Vol.
95, 757 at 758.
35
Kirgis, Custom on a Sliding Scale, (1987) 81 A.J.I.L. 146, at 149.
36
Nicaragua, supra note 9, at 98.
37
Ibid.
38
Kirgis, supra note 35, at 148.
39
D‟Amato, Trashing Customary International Law, 81 A.J.I.L. 101, at 102.
40
Nicaragua, supra note 9, at 245.
41
630 F. 2d 876 (2d Cir.1980).
42
(1789) Title 28, USC.
43
Filartiga, supra note 42, at 895.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
Thus, the court pierced the veil of state sovereignty to protect foreign citizens from human
rights violations perpetrated by their own government officials. However, the Filartiga court
did not give lax treatment to state practice and opinio juris. Unlike Nicaragua, the Filartiga
court did not pierce this veil simply on the basis of a simple „deduction‟ of opinio juris from
the various General Assembly resolutions. Instead, the Filartiga court undertook an extensive
examination of the UN Charter, General Assembly resolutions, ministerial statements, the
renunciation of torture as an instrument of official policy and the constitutional provisions of
fifty-five states which prohibited torture. In particular, in establishing opinio juris, the court
justifiably referred to the Universal Declaration of Human Rights (“UDHR”), 44 as an
“authoritative statement of the international community”45 because the UDHR was adopted
by a strong consensus of forty-eight votes with only eight abstentions.

Further, in cases concerning norms of a moral nature, courts have also emphasized state
practice and opinio juris as distinct but equally important requirements which must be
independently established. The norm prohibiting use of nuclear weapons in NWAO is
arguably moral because prohibition would the right of states and their inhabitants to survival.
This is evident in the observation of the majority of the ICJ in NWAO, where it noted that
“the emergence, as lex lata” of a CIL norm prohibiting the use of nuclear weapons was
“hampered by the continuing tensions between the nascent opinio juris” as expressed in
General Assembly resolutions which declared the use of nuclear weapons as unlawful, and
“the still strong adherence to the practice of deterrence” by the “appreciable section of the
international community”.46

44
(1948)(GA Resolution 217A (III), GAOR, 3rd Ses, Part I, Resolutions, p 71
45
Filartiga, supra note 42, at 877.
46
NWAO, supra note 12, at 264.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
V. Clarifying Incoherent Law

To clarify the incoherence in CIL‟s formation, this paper advocates a pragmatic approach.
This approach is not fossilized in rigid rules, but provides flexible guidelines coloured by the
objectives the norm seeks to realise. As Judge Tanaka astutely observes in North Sea, the pre-
requisites for CIL‟s formation must “be appraised according to the occasion and
circumstances” 47 . Thus, courts “must not scrutinize formalistically” the pre-requisites for
CIL‟s formation and “forget the social necessity, namely the importance of the aims and
purposes to be realised by the customary law in question”. 48 This pragmatic approach is that
generally, the guidelines applicable to CIL‟s formation turn on two issues. First, the
objectives the norm seeks to realise, whether it involves fundamental morality, facilitation or
both. Fundamental morality refers to “matters which affect the very basis of the international
community” and thus all states have a direct interest in, such as use of force and fundamental
human rights”,49 whilst facilitation refers to the promotion of coordination and cooperation
between states devoid of issues of fundamental morality.50 Second, whether there is intense
conflict of objectives between recognising and not recognising the norm as CIL. This
approach is detailed below to clarify the incoherence in (A) establishing consensus and (B)
the emphases on state practice vis-a-vis opinio juris.

A. Clarifying „Consensus‟

Broadly, for norms affecting fundamental morality, all states‟ „votes‟ should be considered,
with each „vote‟ accorded equal weight. As Judge Weeramantry exhorted in NWAO, “every
nation in the world is specially affected by nuclear weapons, for when matters of survival are
involved, this is a matter of universal concern”. 51 This would be consistent with an
alternative interpretation of Judge Schwebel‟s dissent in NWAO, where he arguably did not
accord greater weight to „powerful‟ states but simply „counted-heads‟ because he noted that
“Resolution 1653 (XVI) (which declared the use of nuclear weapons was unlawful) was
adopted by a vote of 55 to 20, with 26 abstentions, with four of the five nuclear powers
voting against it” and was thus insufficient to amount to opinio juris.52 Judge Schwebel‟s
observation also suggests that if there is intense conflict of objectives between recognising
and not recognising the norm as CIL, the „requisite‟ majority to establish consensus must be
greater than simple majority. In NWAO, the intense conflict arose because although nuclear
weapons endanger the right of states and their inhabitants to survival, nuclear weapons‟
deterrence can safeguard these very values.53

In contrast, for norms affecting facilitation, not all states would have an interest in the norm,
thus the approach could be more flexible. Special weight may be accorded to the „votes‟ of

47
North Sea, supra note 9, at 177.
48
North Sea, supra note 9, at 177.
49
Jennings, Oppenheim‟s International Law (Cambridge University Press, 9th Ed.), at 49.
50
Roberts, supra note 34, at 762.
51
NWAO, supra note 12, at 536.
52
NWAO, supra note 12, at 319.
53
Ibid. at 263.

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Jonathan Tan Yong Jin
Class of 2014
Public International Law Research Paper
For Reference Only
„specially affected‟ states. Thus, in North Sea, Judge Tanaka opined that state practice of “a
large maritime country” cannot be seen “as having exactly the same importance as similar
acts by a land-locked country which possesses no particular interest in the delimitation of the
continental shelf”54.

B. State Practice and Opinio Juris

The default principle is that state practice and opinio juris are distinct but equally important
requirements to be established independently. Nevertheless, where there is no controversy in
realising the objective of the norm, courts may adapt Kirgis‟ flexible „sliding scale‟ approach
in substituting opinio juris for state practice or vice versa. This reconciles the ostensible
inconsistency between Nicaragua, where the court arguably downplayed state practice
contrary to the norms of non-use of force and non-intervention and emphasized opinio juris,
and Filartiga, where the court undertook an extensive survey of both state practice and opinio
juris.

However, where there is intense conflict of objectives between recognising and not
recognising the norm as CIL, the default rule cannot be departed from. Both state practice
and opinio juris must be established independently. This reconciles the approaches in
Nicaragua vis-a-vis NWAO. In NWAO, the intense conflict of objectives arose because
although nuclear weapons endanger the right of states and their inhabitants to survival,
nuclear weapons‟ deterrence can safeguard these very values.55 In contrast, there was no such
conflict on the norm of non-use of force and non-intervention.56 Thus, unlike the Nicaragua
court, the NWAO court had to establish state practice and opinio juris and could not simply
substitute state practice with opinio juris.

VI. Conclusion

The law governing CIL‟s formation is Confusingly Incoherent Law. CIL‟s formation via
majority consensus of states contradicts the „voluntarist‟ theory, which upholds individual
state consent and absolute state sovereignty. Recognising that coherence is fundamental to
CIL, this paper advocated a pragmatic approach coloured by the objectives each norm seeks
to realise. In the final analysis, one‟s perception of CIL‟s formation depends on one‟s legal
philosophy57. Positivists “seek the explanation of the binding power of international law in
the sovereign will of states”, consequently viewing CIL‟s formation in “rigid and formalistic”
terms. However, as Judge Tanaka cautions, CIL‟s formation is a “complex psychological and
sociological process” which cannot be “mathematically and uniformly decided” but must be
“evaluated relatively according to the different occasions and circumstances”. 58 Thus, the
quest should not be for rigid rules, but to appreciate the context in which CIL operates and
develops.

54
North Sea, supra note 8, at 176.
55
NWAO, supra note 12, at 263.
56
Kirgis, supra note 35, at 149.
57
North Sea, supra note 8, at 175.
58
Ibid.

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