TY - JOUR
AU1 - Gradoni,, Lorenzo
AB - Abstract The article looks at customary international law in a broad comparative perspective to show that, whilst the power to determine what customary law demands has been typically entrusted to authorities acting in the framework of special procedural arrangements, the international variant of customary law has never found a procedural ‘resting place’. The article further argues that there is a connection between the un-procedural character of customary international law and its long-standing ‘identity crisis’. It finally reads the latter through the lens of Jungian concepts of Mask and Shadow, which contribute to explaining the elements of uncertainty, ambiguity and concealment that are so central to discourses about international custom. 1. INTRODUCTION It is a commonly held belief, especially among international lawyers, that the formlessness of custom makes customary law impervious to any kind of procedural framing.1 This belief rests on a deeper conviction: the dogma of isomorphism (as one may call it). It posits that the vagueness of the criteria traditionally employed to identify customary rules just mirrors the formlessness of the custom-formation process.2 The work of the International Law Commission (ILC) on the identification of customary international law (2012–18) shows how ingrained those beliefs are.3 When the ILC stroke the term ‘formation’ off the topic’s title, it did so on the assumption—shared by ILC members and states alike—that dealing with the identification of customary rules also required delving into their formation process.4 International legal doctrine does not overlook the conceptual distinction between formation and identification of customary law; it construes them as isomorphic and ties them both to custom’s supposed essence, making the distinction uninteresting. Against this backdrop, the title of the present essay—‘un-procedural customary law’—necessarily comes across as tautological. It is not. But it is impossible to entertain the thought unless the dogma of isomorphism is cast aside. The formlessness of the custom-formation process does not inhere in custom’s nature, as is sometimes suggested, unless by ‘nature’ one means a deep-seated layer of legal ontology. In that sense, the formlessness of custom is real. Legal knowledge is indeed organized in such a way that ‘custom’ names the formless. Calling a fully proceduralized mode of law creation ‘custom’ would therefore be nonsensical. There has never been any serious question, then, of turning the process of custom formation into a procedure, which is a triple (ontological, epistemological and conceptual) impossibility.5 Pleas for such transformation conceal fantasies about the suppression of custom and, with it, the formless in international law. Not even an acknowledgment of custom’s formlessness as radical as the one just made, however, logically compels the acceptance of the dogma of isomorphism. And history, predictably, disproves it. As Section 2 shows, in the extremely diverse historical and political contexts in which customary law has played an important role, it has rarely, if ever, been un-procedural with the notable exception of its international variant. International custom is the un-procedural customary law. The dogma of isomorphism is indeed a product of international legal doctrine’s false consciousness. Cultivating it allows to represent as logical or natural the historical dearth of procedural solutions to problems arising from the determination of customary international law. International law knows no procedural rules tailored to the purpose, no specific evidentiary rules or standards of proof—nor, it seems, the need to prove custom, as the relevant fact-finding and analysis mostly take place under the cover of jura novit curia.6 No international institution was ever entrusted to make universally valid determinations as to the existence of customary rules. It is indeed hard to imagine whom such authority could be vested in. The ILC is not like a medieval Weistum, the seigniorial assembly that periodically recalled the customary law for the benefit of the populace and whose authority was uncontested.7 Nor do its drafts resemble late medieval customals or the redacted customs of Renaissance France, since both of them were, unlike the ILC’s acts, obligatory.8 The inchoate capacity to contribute to the formation of custom that political forums like the United Nations (UN) General Assembly possess is a far cry from the power to authoritatively ascertain customary international law, which remains vacant.9 The International Court of Justice (ICJ) is not like the ancient Court of Acre, or a German Oberhof, that is, a supreme instance that lower courts could address to have any dispute about the content of custom settled.10 Nor has it been in the position to turn its self-citation practice into a formal technique of precedent.11 It is only by looking beyond the realm of international law that one realizes to what extent the life of custom has been, and can be, procedural. International legal scholarship has in the last half-century developed an impressive speculative corpus on customary law, while generally neglecting practical, and often deeply political, questions of procedure.12 As the dogma of isomorphism leads to thinking that procedural framings are futile, given the ‘nature’ of custom, this is unsurprising.13 As James Whitman rightly observed, however, as one of the most ‘politically charged’ legal concepts, custom tends to attract procedural safeguards.14 The historical-comparative sketches in Section 2 show how the power to determine what customary law demands has been typically entrusted to a specific authority, or a group of authorities acting in the framework of special procedural arrangements, sometimes featuring detailed evidentiary rules. International law is exceptional in this regard and that anomaly may be a key to a better understanding of international custom’s precarious identity. In the midst of the Cold War, scholars began wondering whether ‘customary international law’ had not become the name of something else, perhaps a new form of lawmaking still awaiting its ‘concept.’ In 1982, Robert Jennings famously quipped that ‘[m]ost of what we perversely persist in calling customary international law is not only not customary law; it does not even faintly resemble a customary law.’15 Since then, diagnosing custom’s identity crisis has become a literary genre in its own right. This essay contends that there is a connection between international custom’s precarious identity and its historically anomalous un-procedural character. Section 3 puts that connection under the lens of Jung’s psychoanalytic concepts of ‘mask’ and ‘shadow’, which may contribute to explaining the tropes of uncertainty, ambiguity and concealment that are so central to the theoretical discourse about international custom. Section 4 concludes with some thoughts about possible lines of inquiry in this field. 2. COMPARING CUSTOMARY INTERNATIONAL LAW Following is a collection of comparative sketches that should ideally prelude to further research in similar directions. Information is drawn from an array of secondary sources, a significant part of which deals with medieval Europe and colonial Africa.16 The material is organized as a chain of dialectically related situations cutting across historical and geographical boundaries, with a view to underscore the rise and fall of different structures of authority involved in the ascertainment of customary law. Section 2.A deals with simple social structures within which juridical authorities need not justify their findings and points to circumstances in which unquestioning acceptance is no longer possible. Section 2.B shows how, at the next stage of the dialectic, authority is reconfigured as contestable expert knowledge (of villagers, the elders, the educated, etc) often collected pursuant to detailed procedural rules. The authority of experts declines as it begins to be seen as too often abused of or unjustified. A possible way out of the impasse—as described in Section 2.C—consists in framing custom as ordinary facts, thereby deflating expert knowledge. At a third and last stage of the dialectic, the ineffectiveness of that solution prompts the re-emergence of authority in the form of judicial precedent, which is initially introduced as best evidence (‘extra-ordinary’) of customary law. Section 2.D deals with the most radical way of breaking out of the evidentiary impasse, that is, ‘judge-made’ and ‘legislated’ customary law. Section 2.E attempts to explain why international customary law did not go through any of those procedural dialectics. A. The Decay of Undisputed Authority Where custom is lived as second nature—as a set of rules everyone puts into practice unreflectively—no need to prove it arises. According to an Arab pre-Islamic maxim, custom must be enforced, whereas the ‘unknown’ must be prohibited.17 In the simplest social configuration, juridical authorities and the people share an instinctive knowledge of custom. There need be no sacerdotal class with privileged access to it. When the anthropologist Max Gluckman asked his Lozi informants about the kind of evidence required to prove custom, he got a response bespeaking culture clash: ‘when I suggested it as a possible need they laughed at me’.18 Using the categories he was familiar with, Gluckman understood indigenous practice as a form of ‘unrestricted judicial notice’ enabled by the undifferentiated character of Lozi society.19 Shared knowledge of custom is not, however, a necessary precondition for popular acceptance of unsubstantiated pronouncements on what custom demands. The authority of the decision maker may also rest on a shared belief in her superior intelligence or morality, that is, in her not being part of the laity. John Gilissen, a scholar of great erudition but not an expert of international law, credited this spiritual quality to the members of the ICJ, when, in his unfinished encyclopedic conspectus of customary laws, he concluded: ‘ces juges connaissent la coutume, parce qu’elle est leur coutume; ils ont vécu selon cette coutume’20—a touchingly naïve portrait. For Gilissen, so spontaneous was the manner in which international judges dealt with custom that their ways were undistinguishable from ancient and less civilized practices, ‘que ce soit au moyen âge ou chez les peuples sans écriture.’21 Whilst international law hardly ever lived through such an idyll, in other sociopolitical contexts the severance of customary law from undisputed authority actually took place. Somehow, custom came to be seen as uncertain, as a kind of law that the judge finds out ‘capite suo’, capriciously.22 And it was this new mistrust of custom that paved the way to the elaboration of sophisticated evidentiary techniques. Feelings of uncertainty seem to have cropped up in the wake of encounters between two or more normative systems. This hypothesis is borne out by historical processes as diverse as the co-evolution of late-medieval European legal orders, the antagonisms between expanding proto-states and declining local institutions, and, more recently, the difficult process of embedding native customs in British colonial legal systems.23 Normative orders may open up to one another, as in late-medieval Europe, when the transition from a regime where the lex fori is applied without exception to another where pleading other laws (lex rei sitae, lex loci contractus, etc) is permitted, let foreign customs in.24 Alternatively, an alien power may force such opening, as European proto-states and colonial powers did as they subjugated new territories. In all these cases, non-local authorities are unlikely to be familiar with the whole range of the applicable laws, local and foreign. In the first scenario, the judge may be unsure of the existence and content of a foreign custom pleaded by a litigant. In the second, she may ignore the local custom—a custom which, for her, is foreign. In both circumstances, customary law must either be proved by those pleading it (debet probari qui allegat consuetudinem) or discovered by the judge with the help of local people, typically those who are presumed to know the local mores best.25 B. Authority Reconfigured as Expertise Uncertainty as to the existence and content of customary law feeds the need for specific procedural safeguards and brings the legal issues related to custom determination into sharp relief. According to André Gouron, in medieval France custom persisted in a liminal, pre-legal state until its ascertainment was subjected to some kind of rational procedure in the Romano-canonical tradition.26 Late medieval jurists concerned themselves with both the concept of custom, or the abstract criteria for its identification, and the practical means to organize and represent, in persuasive ways, the miracle of its cognition. Maintaining the distinction between these two loosely interrelated aspects of doctrinal work—the conceptual and the procedure related—is important. In the historically recurrent attempts to spell out ‘the objective conditions’ of custom’s validity, Alf Ross saw ‘no more than ideological rationalisations for the maintenance of the fiction that the judge applies only objectively existing law’.27 In his view, ‘the details of the formulation of those conditions have certainly varied somewhat’ since the glossators, ‘but the underlying idea has been the same, namely, that it is possible to lay down objective criteria for determining when a custom is “binding”’.28 There is more than a grain of truth in these words. To appreciate the extent to which history repeats itself in this particular respect, there is indeed no better standpoint than that of contemporary debates on international custom. In the writings of Jacques de Révigny, who died in 1296, international lawyers would find many contemporary topics, including a discussion of the apparently not-so-ultramodern concept of instant customary law.29 However, insisting on continuity of customary law doctrine, as Ross rightly did, may also obfuscate important differences in the overall approach to custom, of which conceptual analysis is but a facet, and probably not the most important. The exacting analyses of evidentiary issues and techniques one finds in the work of the glossators are actually almost absent in international legal literature, which either represses them as uncongenial to custom’s supposed ‘nature’ or sublimates them into the search for a perfect algorithm, removed from the contingency and arbitrariness of concrete procedural arrangements.30 In his majestic Lectura super codicem, completed in the second decade of the 14th century, Cino da Pistoia defended the view that an alleged custom of a village with approximately 1000 inhabitants should be considered proved if at least one reliable witness testified that the same custom had been recognized in court before three different audiences consisting of at least 100, 200 and 300 people, respectively, provided that 10 years or more had passed since the most recent trial. If, however, the witness could not recall how many people were present (a realistic lapse of memory that could have added credibility to his testimony), then an ingenious presumption would have been triggered. The witness would have told the judge how many trials he had attended; the number was then multiplied by 20, because ‘rarely […] during trials fewer than 20 men are present’, and, if the resulting figure matched ‘the greater part of the populace’, the alleged custom was deemed proved.31 Odd as Cino’s ruminations may appear to us, they emerged from the need to offset the uncertainty of customary law by the application of some set of rigorous evidentiary rules, which, in turn, reflected the recognition of popular consent as custom’s legitimating principle.32 Historically, evidence of such consent, always indirect, has been collected and assessed in ways much less elaborate than Cino would have wished. In medieval Eastern Europe, judges consulted the local population informally.33 In China, local staff assisted the Mandarin coming from a different region to sit in judgment, especially by directing him to distinguished local personalities.34 Indonesian judges had to ‘go to the desa’, the village, in order to find out what the local custom was.35 In 1925, the Romanian Court of cassation ruled that evidence of custom must be sought in depositions of local witnesses.36 In a decree on the composition of local tribunals, the government of the newly established Soviet Union instructed professional judges to seek the advice of layman assessors as to the content of local custom, and to enforce it if compatible with revolutionary tenets.37 Elderly people have been often regarded as the most reliable witnesses.38 Venerable age made their testimony particularly valuable when claims of ancient usage were at issue. In England, where a custom was shown to have existed over an elderly person’s lifetime, courts generally presumed that the origin of the rule in question could be traced at least as far back as 1189, the year Richard I was crowned, which conventionally marks the outer limit of English legal memory. The traditional test of custom’s validity was therefore left undisturbed, but applied in conjunction with more reasonable evidentiary rules.39 In Yugoslav countries, the starci—the elders—were not necessarily aged, though. Even a young man, if honest, wise and eloquent (all qualities that starci’s sons were presumed to possess), could be counted among those who know the običai, the local customary law.40 Being recognized as a homo probus,41 or as possessing an efficient memory, such as mnēmones in ancient Greece,42 has often been a prerequisite or an asset for those called on to testify about alleged customs. In Africa, individuals known as ‘remembrancers’, who could recall cases going back ‘as far as the tenth generation’, not only took part in traditional dispute settlement procedures but also sat as assessors in the courts established by or inherited from the British.43 As the influence they could exert on the final decision went well beyond the advisory status of their opinion, their interaction with the members of the court was subjected to procedural restrictions. In Sobola Jiboso v Obadina, a Nigerian case from 1962, the assessors behaved in such a way that the president of the court appeared surrounded by a ‘changing secret conclave’, whilst they were meant to sit separately from the court, deliver their opinion in public and avoid meddling in the deliberations.44 Something similar took place in 13th-century Bordeaux, whose mayoral court included the savis en leys, assessors whose opinion on customary law was generally regarded as binding. In Toulouse, the alleged abuses of four notaries, who had come to exercise an informal monopoly on the ascertainment of custom, resulted in systematic codification.45 The unreliability and corruption of supposed experts in local law, absent codification, made the pendulum swing back to more procedural rigour. The ordonnance de la Chandeleur, issued by Saint Louis in 1270, is exemplary in this regard. It required that the judicial ascertainment of customary law rely on the enquête par turbe, that is, on the unanimous determination of at least ten ‘wise men, in good repute’, each of whom had to fully disclose under oath the reasons upon which his opinion rested (causa sui dicti). The requirements set out in Saint Louis’s ordinance were thought to be strict enough to make determinations irrefutable, under the fiction that the turbiers confined themselves to taking notice of well-known facts.46 An alternative strategy against overbearing customary law experts consists precisely in framing customs as ordinary facts, knowledge of which presupposes no special status, training or quality, except of course for the ability to handle ordinary rules of evidence. C. Evidentiary Rules, Judicial Notice and Precedent Framing customary rules as ‘plain facts’ for evidentiary purposes is hardly conducive to legitimate decision-making in the absence of shared views on what would count as indicia of custom. Since, however, consensus is usually lacking in this respect, reliance on ordinary modes of cognition—simple in theory, too much complicated in practice—has given way to more workable solutions. These solutions represent a compromise between the custom-as-ordinary-fact conception, which is retained as ideological basis, and the need for a procedural device that—such as the rule of precedent—would make the identification of customary law less burdensome and open to doubt. The idea that ordinary evidentiary rules must govern the ascertainment of customary law is a leitmotiv of British colonial jurisprudence.47 It has been observed that ‘African customary law was in a sense a foreign law which had to be proved in its own land’,48 in accordance with imported evidentiary practices. The redefinition of local law as ‘foreign’, however, much paradoxical as it may appear, soon became part of the case law. In Hughes v Davis, a Gold Coast case decided in 1909, a British court held that ‘[a]s native law is foreign law, it must be proved as any other fact.’49 African customary law—much like the local customs surviving in the metropolitan territory alongside the common law50—was thus denied the cachet of the most perfected and long-lasting procedural solution to custom’s evidentiary riddle: precedent. Precedent was for Blackstone ‘the most authoritative evidence, that can be given, of the existence of such a custom as shall form part of the common law’.51 As is known, there was but a short step from the characterization of precedent as the best evidence of custom to the idea that precedent enabled the courts to dispense with evidence of custom altogether.52 As Best CJ wrote in R v Lord Yarborough, ‘it has not been usual for a long time to allude to […] customs in the pleadings, because no proof is required of their existence; they are considered as adopted into the common law, and as such are recognised by the judges without any evidence’.53 That was in 1828. Less than a century later, the Privy Council confirmed that African custom, ‘[a]s in the case with all customary law’—a club that the common law had apparently long quit—was ‘to be proved in the first instance by calling witnesses acquainted with the native customs’, until it had, ‘by frequent proof in the courts, become so notorious that the courts will take judicial notice of them’.54 For Antony Allott, a distinguished commentator of British colonial law, treating local custom as a fact, rather than ‘as part of the law of the land’, was ‘juristically inelegant’.55 But the choice of judicial notice as the procedural solution was also the symptom of a deeper anxiety. As colonial prejudice foreclosed the use of precedent as a stand-in for evidence, judicial notice emerged as a stand-in for precedent. One way or another, the loose ends that come with the conception of custom as ordinary fact had to be tied up. The colonial experience revealed yet another twist in the complex relationship between customary law and procedure: a creative, forward-looking way of approaching custom that is diametrically opposed to the one just described. D. Judge-made and Legislated Custom There is ample evidence that the colonizer’s reading of African customary law as rules that, if disputed, could be culled from duly established facts, that is, as pre-existing and objectively determinable rules, was itself based on a misunderstanding. In a colonial memorandum from Tanganyika, compiled in 1957, ‘African legal thought’ was said to be ‘hopelessly muddled’, with ‘little sense of the importance of evidence and proof’.56 Native customs were allowed to survive, but the procedure for their ascertainment had to be improved along with record-keeping techniques.57 The colonizers thought they knew better than the natives how to find out local customs.58 Native law came thus to be seen as made up of rules ‘divorced from procedures, themselves equally customary, through which the rules [we]re applied’.59 Worse still, anthropological research has shown that oftentimes there existed no set of customary rules to be discovered by going through any procedure, local or devised by colonial authorities. As Johan Holleman wrote in 1952, ‘[a]s one case report led to another, and the pile of factual data grew, the various aspects of Shona law emerged, not as a clear pattern of strictly defined rules, but as a collection of broad concepts and guiding principles, the practical application of which varied with virtually every case in which they were reflected.’60 Local procedures seemed geared not so much towards the ascertainment of rules as towards their definition in the light of relevant principles and the circumstances of the case.61 Western legal doctrine thus occasionally framed the performance of native adjudicators as a balancing act accomplished against the backdrop of a set of undisputed principles, whose existence required no proof.62 Their practice, then, could not plausibly be described as finding out custom. It was judicial lawmaking, necessarily piecemeal but clearly prospective. Writing about dispute settlement among the Tiv, Paul Bohannan settled for a slightly different interpretation: ‘The essence and purpose of Tiv court action and arbitration is to determine what is right in a particular case, not to determine which law is applicable.’63 Still others espoused the view that the local dispute settlement processes, ‘constructive and palliative’ as they generally looked,64 had much less to do with the ascertainment of facts (let alone custom-generating ones) than with the ‘restoration of the social balance’.65 If that was the case, one can only imagine how misguided and traumatic must have been the casting of a ‘machinery for the ascertainment of customary law’ upon indigenous practices.66 The British went as far as applying their idiosyncratic test of antiquity—with Edward the Lionheart’s crowning marking the threshold—to the ascertainment of African customary law, a test so embarrassing that at some point it was silently dropped.67 By way of comparison, the Australian Law Reform Commission, in its 1986 Report The Recognition of Aboriginal Customary Laws, chose not to comment on evidentiary issues out of respect for the secrecy surrounding aboriginal customary norms and procedures, knowledge of which is restricted to few community members.68 The worst kept secret of native customary law was actually its ambivalent relationship with the past. Lawmaking practices, including informal and creative dispute resolution processes, were not exclusively backward looking. Despite ritual invocations of ancestral mores, past practice as evidence of community consensus was not what local authorities looked for, and certainly not with the inquisitiveness of a Western lawyer applying evidentiary rules or committed to the idea of codification. As Margaret Green observed, an Ibo community, ‘far from resting on immemorial custom, seems always ready for new departures’.69 In Rwanda, customary law was said to flow from two different sources: common usage and the decrees promulgated by the Mwami, a king of divine right. By these acts, the Mwami could create, suppress or change any custom, but not before having gone through a complex procedure, including the approval of the Queen Mother, the noblemen, the guardians of the tradition (abiru) and, last but not least, the ancestors’ ghosts.70 Also in medieval and Renaissance Europe, custom was ‘tam antiqua tam nova, always immemorial and always perfectly up-to-date’.71 There was no assumption that custom’s life began as inchoate social practice rather than being kicked off by a formal act like a royal charter.72 Moreover, the fiction that these acts restored, by re-enacting, older and shamefully forgotten ones seemingly predates the idea of ancient custom as the basis of all legitimate law.73 Prefacing an ordinance issued in the year 1200, King Cnut VI of Denmark made clear that he was not giving ‘this law ex novo’ but ‘restor[ing] it to the memory of mankind, from which it had disappeared, obscured by the mists of ignorance and the passing of a multitude of years, which are the mother of oblivion’.74 This earlier modality of legitimation ab antiquo explains the otherwise baffling pia fraus (pious fraud) perpetrated by medieval forgers, who came up with charters issued by the oldest possible monarchs on the assumption that their rivals too were fabricating their own evidence—yet more counterfeit royal charters—although with impious intentions!75 The exceptional value accorded to royal charters in litigation is a further example of fallback onto procedure. As Fritz Kern wrote, against the uncertainty of custom and the difficulty of proving its existence, royal charters stood as ‘the solitary firm pillar of legal tradition’.76 In reaction to the increasing difficulty of proving local customs to the monarch’s satisfaction—a situation aptly defined as an ‘evidentiary crisis of custom’77—emerging European states reacted either by taking upon themselves the task of codifying local laws, in cooperation with local assemblies, or by inventing the idea of a common, kingdom-wide customary law. Since a consuetudo totae Francie, that is, valid in the whole of France, had never existed, it could be officially ‘codified’ as an admixture of traditional and rational precepts.78 A 13th-centurty custumal of the Ile-de-France,79 whose anonymous author invoked political decision to tame custom’s uncertainty, may perhaps be regarded as an early symptom of the above-mentioned evidentiary crisis: ‘Custom must be created by command of the king, or the count, or the bishop, or the royal abbot, or by the command of whoever can or should do so.’80 E. No Procedural Resting Place: Customary International Law’s Identity Crisis In late medieval England, where, as in France, ‘there was no general custom of the realm’,81 the common law—strategically portrayed not as the king’s law but as the customary law of the land—was gradually fleshed out by royal courts, a practice that congealed into the doctrine of stare decisis.82 Both in England and in France, the stream of customary law was redirected towards a new procedural riverbed: precedent or legislation parading as codification. International customary law, by contrast, never found a procedural resting place. It is of course possible to draw several analogies between the procedural dialectics just described and certain features of customary international law doctrine. Resolutions adopted by the UN General Assembly or other international organs may be thought of as modern royal charters, although their probative value is less clear. ILC’s codification projects, whose evidentiary status is bound to remain unspecified, may be seen collectively as an anaemic version of legislated custom. Similar considerations apply to the elusive relationship between customary law and widely ratified multilateral treaties. In the realm of international adjudication, an informal, uneven and often unpredictable logic of precedent is at work. Even the conception of custom as ordinary facts, which tends to prevail when structures of authority are unsteady, cannot be formally embraced inasmuch as the principle jura novit curia applies to the ascertainment of international custom. It is not, then, a total lack of procedural figures and patterns that makes international law anomalously un-procedural; its specificity lies, rather, in the chaotic co-presence of toned-down versions of those patterns and figures. One reason for this may lie in international law’s relative ‘insularity’. Although international law regularly interacts with other legal systems—primarily domestic ones—it never does it in ways that, historically, brought procedure into the realm of customary law. A domestic legal system is not, for international law, foreign as African laws were for the British colonial administrators, nor is international law foreign from the point of view of a domestic legal system, again in the sense that no inclination towards formal integration or control is involved in their mutual relations. One could also argue that insofar as international law is construed, not as a single legal order, but as a set of loosely connected systems, some of these might frame extra-systemic customary law, including general international custom, as ‘foreign’. This, however, has seemingly occurred only in a few investor–state arbitration proceedings, where the tribunal applied the maxim debet probari qui allegat consuetudinem, as if customary international law were not part of the lex fori and not subject to the principle jura novit curia.83 The formal argument of the ‘missed’ encounter between international law and another, dominant legal system, conjures up the relation between power and custom. Lloyd Fallers suggested that customary law ‘is not so much a kind of law as a kind of legal situation which develops in imperial or quasi-imperial contexts, in which dominant legal systems recognize and support the local law of politically subordinate communities’.84 The fact that international law is not easily turned into a kind of ‘folk law’ is not, however, dispositive of the matter. Change could have come from within the social and political system that undergirds international law, if prompted by an interested hegemon or other prevailing social forces. Between the end of World War II and the 1980s, especially in the wake of decolonization, the advent of a post-customary form of general international law looked possible. But no political actor has ever been able, or willing, to take control of custom and to inscribe it in a definite procedural form.85 The resulting indeterminacy engendered customary international law’s identity crisis, epitomized in Robert Jennings’s sceptical musing.86 At least until mid-1980s, many international lawyers still believed in the ‘need to find alternative roads to law-creation’.87 Sometime around the end of the Cold War, however, a strange feeling started to set in among them of not understanding anymore the ‘thing’ that they wanted to see changed.88 That was the outcome of a process of conceptual corrosion accelerated by the political upheavals of the 1960s. Whilst international lawyers refrained from giving ‘the thing’ a new name,89 they often felt the need to use qualifiers, as in ‘instant customary law’90 or ‘coutume sauvage’.91 They described custom as old and new, traditional and modern,92 or as moving on a ‘sliding scale’,93 often underscoring its malleability and hybridity. Writing about the effects of the codification process, Eduardo Jiménez de Aréchaga opined that the latter had not only unexpectedly boosted custom, it was also making it new, by combining ‘customary and conventional law into a harmonious whole, like two pillars which support each other’.94 Further dwelling on the connection between customary international law’s identity crisis and its anomalous un-procedural character, Section 3 shows how procedural forms international custom could not take inhabit it as contradictory tensions. A professional gathering held in the mid-1980s in San Domenico di Fiesole offers rare glimpses of this state of affairs at a relatively early stage of its consolidation. 3. INTERNATIONAL CUSTOMARY LAW’S TROUBLED IDENTITY Between 1984 and 1985, two round tables on Change and Stability in International Law-Making took place at the European University Institute. The conveners, Antonio Cassese and Joseph Weiler set themselves an ambitious goal: ‘We thought that by examining the microcosm of the law-creating processes, we might perhaps better understand some general trends of the macrocosm of the world community.’95 As the round tables proceedings show, reasoning in the opposite direction—from some understanding of world politics to the murky waters of international legal sources—is what the participants actually did most of the time. The first lines of the book’s preface throw the reader back to a bygone era, where change was happening ‘chiefly at the instigation of developing and Socialist countries’ and despite the traditionalist stance of the West.96 Political tensions threw up strange things in the realm of international lawmaking, like the above-mentioned custom-treaty alloy featuring in Jiménez de Aréchaga’s introduction to the first round table.97 Geopolitical fault lines were actually far more transparent than the conceptual ripples they sent through the coded domain of international legal sources. Starting from clues collected in Fiesole and elsewhere, Section 3.A deals with the trope of custom’s misleading appearances that repeatedly comes up in scholarly literature. That paves the way to an analysis of custom’s ‘outward aspect’ as a Jungian ‘mask’ whose traits are often twisted by ‘shadows’ (another Jungian concept) lurking beneath its surface. A. Customary International Law as Disguise Georges Abi-Saab’s reaction to Jiménez de Aréchaga’s report is undoubtedly among the best depictions of customary international law’s identity crisis: as he [Jiménez] was speaking, I was thinking ‘are we really still speaking of custom?’ […] My impression is that through these new processes, what the international community is groping for is a technique for creating general international law. […] In fact we have new wine, but we are trying to put it in the old bottle of custom. At some point this qualitative change will have to be taken into consideration, and we will have to recognize that we are no longer speaking of the same source, but we are in the presence of a very new type of law-making. The problem with this recognition, however, is that it may provide an argument for breaking the system altogether. This is why it may be safer, at least for the time being, to keep the old label, while using the new techniques.98 Seen from the left, as it were, custom appeared as a cover for a stealthy ‘democratization’ of general international law. Two decades before, Abi-Saab had argued, without mentioning custom, that newly independent states were in a position to seize the international community’s ‘corporate will’ and ‘shape international law’ to fit their own priorities.99 Had it not been rediscovered as a revolutionary hideout, custom would have become a relic. In the same years, Michael Reisman offered a completely different interpretation of custom’s comeback. It was not the secret handmaiden of change, but the morbid symptom of the fact that the window for change was already closing at the expense of the great majority of states: the new use of the word ‘custom’ camouflages a constitutive shift in […] the politics of international lawmaking. […] The setting of necessary legislation is being shifted from the most inclusive and open international arenas, such as the General Assembly and universal conferences, to more limited alliance, regional and […] sectoral conferences from which most of the new majority in the United Nations will be excluded. The ‘all states’ trend in the last forty years, seeking to bring everyone into an inclusive conference arena, is being reversed in favour of a network of restrictive-access legislative arenas. Because this shift from the floors of the world legislatures to back rooms elsewhere is inconsistent with venerated international legal myth, it is more convenient, if less accurate, to describe it as the resurgence of custom.100 For Reisman, ‘the great leap backward to custom’ was not only retrograde, it was also illusory. Legislation was there to stay, although under a false identity.101 As there was no ‘congruence between the institutions of formal law-making and those of effective power’, legislation could only go out in disguise.102 Custom was then ‘a vague term’ misleadingly suggesting ‘that certain laws did not derive from a legislative process’, a concept Reisman employed liberally to suggest that international lawyers called ‘custom’ what was in essence a forward-looking lawmaking practice.103 He did not deny that, ‘procedurally’, it was ‘a sad state of affairs’.104 It is worth stressing that both Abi-Saab and Reisman—their diametrically opposed views notwithstanding—depicted international custom as essentially deceptive (or deceitful). Custom wears, or is, a mask. It never is what it seems; perhaps, it is not custom at all, as Jennings and others had surmised.105 Custom’s elusiveness is arguably the most important theme—and perhaps the only unifying thread—in the literature since at least the 1980s. It invites to experiment with a psychoanalytic heuristics.106 B. The Mask and Shadow of Customary International Law The idea of psychoanalysing a juridical institution is not new. Psychoanalysis, predominantly in its Freudian and Lacanian versions, informs one of the ‘minor jurisprudences of postmodernism’.107 Psychoanalytic concepts, as Peter Goodrich explained, help in questioning ‘the rationality of legal practice by finally addressing the unconscious of institutions, and correlatively the repetitions and repressions, the drives and desires of the authors and interpreters of law, as well as of its subjects’.108 Juridical institutions are products of the human mind. The fact that they grow out of collective practices may lead to overplay the role of rationality in their design and workings; it cannot erase, though, the symbolic dimension in which they are inevitably entangled. Institutions exist as crucibles of discursive practices, with all their revealing slips, coded allusions, indecisions and contradictions. They live as layered ‘texts’—in Pierre Legendre’s sense109—to which psychoanalysis, understood as a theory of meaning and interpretation,110 can be fruitfully applied. Sceptics of this approach may think of it as the choice of an image for heuristic purposes, much like Joseph Weiler’s decision ‘to employ the metaphor of geology’ to make sense of what international law was becoming.111 For him, ‘geology allows us to speak not so much about transformations but of layering, of change which is part of continuity, of new strata which do not replace earlier ones, but simply layer themselves alongside’.112 An interpretative frame integrating Jung’s concepts of Persona (Mask) and Shadow seems particularly apt to express certain features of customary international law’s Self.113 Not only does it highlight the elements of uncertainty, ambiguity and concealment that seem so central to international custom’s identity, but it also permits to understand them as interlocking aspects of a single living institution rather than as doctrinal puzzles awaiting a solution. International custom’s Self emerges from the interaction between a Persona, that is, the canonical version of the two elements doctrine, and a spacious Shadow enfolding Reason, Consent, Precedent, Legislation, and Hegemony, each of which is briefly dealt with in the following subsections. The five facets of the Shadow could also be seen as forming a chronological structure, with some of them lying deeper in the past, as Reason and Consent, while others, such as Precedent and Legislation, are more recent, open wounds rather than hidden argumentative seams. (i) Reason The conflation of custom and reason, understood either as intuition of first principles or as an elevated form of practical wisdom, is a recurring theme in the history of Western legal thought.114 In international law, the lack of bright-line identification criteria for customary law makes the latter a convenient positivistic cloak for natural law arguments, and an easy target for sceptics. Martti Koskenniemi speculated that it is because of ‘the difficulty of justifying conceptions of natural justice in modern society […] that lawyers have tended to relegate into “custom” all those important norms that cannot be supported by treaties’.115 Choosing a metaphor that symptomatically mixes theatrical performance and religion, Samuel Estreicher exposed custom as ‘fast becoming the deus ex machina of international law’.116 Antony Carty illuminated the troubled relationship between custom and reason from yet another angle. For him, the canonical characterization of custom, that is, its Persona, ‘is entirely a construction of international legal doctrine – the imaginations of international lawyers – and carries with it all of their ideological ambitions and in particular the desire to bury any doctrine of natural law’.117 But natural law arguments still crop up in the case law, even in the explicit form of an ‘atrocity factor’ facilitating proof of customary international criminal law: the more a conduct is morally repugnant, the less evidence is required to show that custom prohibits it.118 (ii) Consent Serge Sur too was at the round tables in Fiesole. Convinced that international custom ‘is formed and becomes opposable in virtue of the consent of States’, he held that Consent remained the ‘mask [sic]’ custom had to wear in public.119 Custom must have deceived him. Consent is not the mask worn by custom’s self—its Persona; it is, rather, a component of its Shadow. Although the consensualist theory of international custom may count on a few pockets of resistance, the fact that no one pleaded its cause in the debates preceding the adoption of the ILC’s Draft conclusions on the identification of custom is a clear sign of its demise, almost half a century after the ICJ showed how to bring it about in the North Sea Continental Shelf Cases.120 Not too long ago international custom could wear consensualist outfits. Today, everybody expects it to put on its well-worn majoritarian suit, of which the Draft conclusions offer the definitive snapshot: ‘The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent.’121 These standards, now enshrined in conclusion 8.1, do not lend themselves to more exact formulations as to the required number and the geographical distribution of states. As the Commission takes pain to explain, ‘[i]t is clear, however, that universal participation is not required.’122 It is this nebulous majoritarianism, not consensualism, which has been for some time international custom’s public persona. But since the grounds of the majoritarian conception remain no less uncertain than its official formulation, Consent is left lurking in custom’s Shadow. Hallowed in the ILC’s Draft conclusions, the persistent objector doctrine is not, then, ‘the acid test of custom’s voluntarist nature’,123 but the sign of the troubling latency of consensualism in custom’s archetypal lot. The language in which the doctrine is usually expressed is revealing in this respect. As is known, the recognition of persistent objector status is subject to stringent requirements.124 The objection ‘must be clearly expressed’ and ‘made known to other States’.125 Even when regularly notified, it may have come too late, for the customary rule in question may no longer be ‘in the process of formation’.126 Finally, a valid objection lapses unless it is ‘maintained persistently’, both before and after crystallization.127 This is a language of oppression, not of freedom and consent. Transfixed by the eye of an invisible ‘community’, the would-be objector is given few clues as to how its passive demeanour might be interpreted in any given circumstance.128 (iii) Precedent In the early 1960s, when the crisis that made the ICJ grind to a halt was not yet visible on the horizon, Daniel O’Connell pointed out with apparent relish that ‘[i]n theory the custom is that of States, but the theory wears more threadbare with every decade and with every citation of judicial precedent.’129 Frumpy as it might be, the theory of customary international law as based on state practice and opinio juris, which is a crucial part of custom’s Persona, is still there. Precedent, by contrast, is consigned to a shadowy existence, which is not made easier by proliferation of international courts and tribunals.130 Daniel Bodansky believes that international custom’s official doctrine is a ‘myth’, while an undisclosed ‘operation code’ (a Reismannian concept) directs to the application of ‘a norm of precedent’.131 The Committee on the Formation of Customary International Law set up in 1985 by the International Law Association agreed that ‘the law relating to the formation of customary international law’ should be culled from ‘the practice of States’, but then gave the World Court’s case law pride of place, under the pretext that state practice is not easily accessible or decipherable.132 Finally, a quick perusal of the commentary to the Draft conclusions on identification of customary international law, or rather of the footnotes thereof, confirms that Precedent is a powerful presence in international custom’s life and yet one that cannot rise to formal leadership, not least because the fragmentation of the judicial function tends to obstruct it.133 (iv) Legislation Legislation, or rather its inchoate international double, was one of Prosper Weil’s doctrinal nightmares. ‘Even’ a resolution adopted by an international organization, he wrote, ‘may give birth to a norm of customary law, which, under the pretense of its generality, will be universally imposed on all states, including its opponents’.134 That, for him, upset ‘the delicate balance on which the classic theory of custom was based, since opinio juris is by the same token dissolved in an ill-defined majority consent’.135 As Weil wrote these lines, Legislation was already a walking dead. It is sometimes forgotten, however, that in the mid-1960s Bin Cheng forged the concept of ‘instant customary law’ not in polemic but in dialogue with emerging opinions about the role of the UN General Assembly and other similar multilateral forums.136 Although the concept is today looked down on as an extravagant Third-Worldist relic, it was the USA that first introduced the idea that international custom could be ‘created instantly by means of unanimously adopted resolutions of the General Assembly’.137 In the space of a few years, Legislation—first as a means to break the Security Council’s deadlock, then in the garb of instant custom—was both the hegemon’s passing whim and a beacon of hope for newly independent states seeking empowerment. Its democratic allure, together with its adherence to the principle of sovereign equality of states, makes of Legislation the archetype that lies closer to—indeed right behind—international custom’s mask. The latter’s majoritarianism makes it superficially look like an embodiment of Legislation, but its, formless character and the consequent impossibility of enacting the will of any majority, soon meet the eye as the soulless gaze of a broken puppet. (v) Hegemony Hegemony is Legislation’s obverse.138 Due to its undemocratic flavour and its defiance of state equality, it lies buried in the Shadow’s deepest recess. In Fiesole, Jiménez de Aréchaga announced that the time had come to let international law be determined ‘on the basis of the equal participation of all States and not by the fiat of a few preponderant States’.139 The concept of ‘States whose interests are specially affected’, although consecrated by the ICJ,140 could not make its way into the ILC’s Draft conclusions on customary international law, for fear that it be misunderstood as countenancing privilege.141 And yet, the hegemonic dark side of international custom has been countless times uncovered. As Brigitte Stern pointed out, opinion juris is a ‘mask’ worn by both power and subjection.142 This explains why Botswana’s exceptional response to the ILC’s request of information on state practice relating to the making and ascertainment of customary international law reads like a social solecism: Botswana is unable to provide information […] as [it] has not been at the forefront of the determination of appropriate rules of customary international law. There has not been opportunity and need to put forward the country’s view on international practice leading to the formation of customary international law.143 Hegemony is not allowed to come to the surface unless it appears under the guise of a fellow component of the Shadow. Chameleon-like, it may act either offensively, as Reason or Legislation, or defensively, as Consent, while using Precedent as a versatile tool. Overcoming customary international law or to set it on a definite procedural course is perhaps against its interests, or beyond its capacity.144 Hegemony includes of course its negative double: lack of hegemony. It may translate into powerful political agency, but it can also produce stalemate and stagnation. In either case, it holds the key to the un-procedural character of customary international law. 4. CONCLUSION Implicit in the present essay is a plea for a partial reorientation of the research agenda on customary international law in two main directions. First of all, it seems advisable to forsake research on custom formation and its theoretical correlatives, custom’s abstract identification criteria, for more thorough inquiries into actual techniques and concrete modalities of custom determination.145 Much intellectual energy has already been spent on problems of custom-formation theory, an overinvestment that paradoxically inflated the myth of custom’s enigmatic nature to the point of professional self-deprecation: could it be that lawyers lack the intellectual prowess needed to solve the enigma?146 But there is no mystery to dispel, nor theoretical depths to fathom.147 Custom formation really is formless, and that makes it jurisprudentially shallow. By casting the dogma of isomorphism aside international legal scholarship wriggles free of the debilitating grip of custom formation. And this, in principle, paves the way to a second line of inquiry, that is, comparative research on the history and politics of custom determination,148 which in turn may intercept and reinforce recent welcome attempts to re-politicize the debate on customary international law.149 This is one more reason to move beyond the long tradition of puzzle solving, apolitical and premised on a ‘coherentist’ epistemology, and delve more deeply into the rich expressive dimension of practices and theories of custom determination. Acknowledgement I could not have written this essay without the unflagging support of the library staff at the Max Planck Institute Luxembourg. I dedicate it to them. Constructive remarks coming from an anonymous reviewer are gratefully acknowledged. The usual disclaimers apply. Footnotes 1 See, for an authoritative formulation, PM Dupuy, ‘L’unité de l’ordre juridique international: cours général de droit international public’ (2002) 297 Collected Courses Hague Acad Int’l L 9, 198: ‘Qu’on le veuille ou non, ce qui constitue l’âme de la coutume, c’est qu’elle demeure un processus social dont on cherche en vain à faire une procédure juridique.’ 2 An admirably clear statement of the dogma is in K Wolfke, Custom in Present International Law (2nd edn, Martinus Nijhoff 1993) 116: ‘The ascertainment and formation of customary international law are of necessity closely interrelated, since […] the process of formation determines the means of identification of customary rules […]. The close interrelation between formation and ascertaining of international custom is probably the reason why certain authors see no need to separate these two processes.’ 3 For an inventory of the opinions expressed on the subject by states and ILC members, see L Gradoni, ‘La Commissione del diritto internazionale riflette sulla rilevazione della consuetudine’ (2014) 97 Rivista di diritto internazionale 667, 677–81. The outcome of the ILC’s work is reported in ILC, Text of the Draft Conclusions on Identification of Customary International Law and Commentaries Thereto, in ILC, Report on the Work of Its Seventy-first Session, UN Doc A/73/10 (2018) 122 (hereafter, ILC, Draft Conclusions on Identification of CIL). 4 The topic’s original title was ‘Formation and Evidence of Customary International Law’. See ILC, Report on the Work of Its Sixty-ninth Session, UN Doc A/71/10 (2016) para 50. The decision to avoid the topic of ‘Evidence’ is at least as significant, for it signals the ILC’s unwillingness to embroil itself in the niceties of evidentiary issues. For comments, see L Gradoni, ‘The International Court of Justice and the International Customary Law Game of Cards’ in M Andenas and E Björge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press 2015) 371, 378–82. 5 Dupuy (n 1) 169, 198. 6 Compare Wolfke (n 2) 119–22. Although the question as to whether the jura novit curia principle applies to the ascertainment of customary international law remains controversial, the case law of the ICJ does not support the view that a rule of general customary law must be proved by the party alleging it, in accordance with some pre-established standard of proof (see, for valuable insights, L Fumagalli, ‘Evidence Before the International Court of Justice: Issues of Fact and Questions of Law in the Determination of International Custom’ in N Boschiero and others (eds), International Courts and the Development of International Law. Essays in Honour of Tullio Treves (Asser Press 2013) 137). With a few exceptions and nuances, scholarly opinion holds that jura novit curia is applicable. See eg A Riddel and B Plant, Evidence Before the International Court of Justice (BIICL 2009) 145–47. For M Kazazi, Burden of Proof and Related Issues: A Study of Evidence before International Tribunals (Kluwer 1996) 44–50, 44, this is, however, an ‘area in which the principle jura novit curia is not fully operative’. According to G Niyungeko, La prevue devant les juridictions internationales (Bruylant 2005) 96, not custom as such but the facts that allegedly brought it into existence are subject to ordinary evidentiary rules. Niyungeko took his cue from JC Witenberg, ‘La théorie des preuves devant les juridictions internationales’ (1936) 56 Collected Courses Hague Acad Int’l L 1, 39: ‘La règle de droit, comme telle, en tant que principe impersonnel et objectif de droit international, n’a pas à être prouvée. Et ceci est vrai tant pour la règle écrite que pour la règle coutumière. Mais cette dernière, reposant sur des précédents, donc sur des faits, peut engendrer des controverses de fait, auxquels la procédure de preuve sera éventuellement étendue.’ According to L Ferrari Bravo, La prova nel processo internazionale (Jovene 1958) 56, 70–74, the principle jura novit curia does not in principle apply to the ascertainment of customary international law precisely because the principal aim of international adjudication would not so much be finding out what the objective law is as contributing to the peaceful coexistence of states. The author granted, however, that a customary rule could have emerged to the effect that jura novit curia applies to the judicial ascertainment of customary international law, too. 7 JF Poudret, ‘Connaissance et preuve de la coutume en Europe occidentale au moyen âge et à l’époque moderne (rapport de synthèse)’ in Custom. Second Part: Medieval and Modern Western Europe, LII Transactions of the Jean Bodin Society for Comparative Institutional History (De Boeck 1990) 511, 518–23 (hereafter, Custom II). 8 ibid 531–35; JQ Whitman, ‘Why Did the Revolutionary Lawyers Confuse Custom and Reason?’ (1991) 58 Uni Chi LR (1991) 1321, 1340–47. See also A Csizmadia, ‘La coutume en Hongrie’ in Custom. Third Part: Eastern Europe, Asia and Islam, LIII Transactions of the Jean Bodin Society for Comparative Institutional History (De Boeck 1992) 85, 89 (hereafter, Custom III); W Uruszczak, ‘La coutume et la loi dans la pensée juridique polonaise des XVIe et XVIIe siècles’ in Custom III 145, 147. 9 ILC, Draft Conclusions on Identification of CIL (n 3), conclusion 12.2: ‘A resolution adopted by an international organization or at an international intergovernmental conference may provide evidence for determining the existence and content of a rule of customary international law, or contribute to its development.’ 10 Poudret (n 7) 516–18. 11 See, however, CA Bradley, ‘Customary International Law Adjudication as Common Law Adjudication’ in CA Bradley (ed), Custom’s Future: International Law in a Changing World (Cambridge University Press 2016) 34. 12 For recent contributions to what is still the prevailing genre, see L Blutman, ‘Conceptual Confusion and Methodological Deficiencies: Some Ways That Theories on Customary International Law Fail’ (2014) 25 EJIL 529; L Kirchmair, ‘What Came First: The Obligation of the Belief? A Renaissance of Consensus Theory to Make the Normative Foundation of Customary International Law More Tangible’ (2016) 59 German Yrbk Int’l L 289; O Sender and M Wood, ‘A Mystery No Longer: Opinio Juris and Other Theoretical Controversies Associated with Customary International Law’ (2017) 50 Israel Law Review 299. According HA Strydom, ‘Customary International Law: The Legacy of the False Prophets’ (1994) 27 Comparative & Int’l LJ of South Africa 276, 312: ‘Just as time flows in the direction of greater entropy, so the chaos in legal theory on [customary] international law has increased over the years.’ For J d’Aspremont, ‘The Decay of Modern Customary International Law in Spite of Scholarly Heroism’ in G Ziccardi Capaldo (ed), The Global Community: Yearbook of International Law and Jurisprudence (OUP 2015) 9, 28–29, the prevailing research programme is ‘a degenerative enterprise’. Whilst careful conceptual analysis remains necessary, there is a grain of truth in the opinion that speculative writing about custom has perhaps exhausted its potential. In other disciplinary compartments, in historical–legal studies, for instance, different approaches prevail. See eg Whitman (n 8) 1330, who, following the trail of other legal historians, ‘tried to identify the procedural pressures that underlie developments in the airy heights of legal philosophy’. 13 For a recent authoritative take on international custom’s (relative) ineffability, see PS Rao, ‘The Identification of Customary International Law: A Process that Defies Description’ (2017) 57 Indian J Int’l L 221. 14 See JQ Whitman, ‘Law and the Pre-modern Mind’ (1991) 44 Stan LR 205, 216. 15 RY Jennings, ‘The Identification of International Law’ in B Cheng (ed), International Law: Teaching and Practice (1982) 3, 5 (emphasis in the original). See, among many who agree with Jennings, D Bodansky, ‘Customary (and Not So Customary) International Environmental Law’ (1995) 3 Global L Studies J 105; N Petersen, ‘Customary Law Without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation’ (2008) 23 Am U Int’l LR 275. 16 By way of a working hypothesis, I stipulated that a given normative system would fall within the scope of the research if two conditions were met. First, in that system, some form of unenacted law contributes to the regulation of public affairs, including the settlement of disputes. Secondly, the authority of that law rests on some form of past usage, no matter if ancient or recent, real or shrouded in myth. The term ‘unenacted law’ is in principle preferable to ‘unwritten law’ as the former may well be written without being incorporated into a formal act. At any rate, the terms ‘custom’ or ‘customary law’ are here used as synecdoche for unenacted law. At the risk of being overinclusive, the research embraces without distinction all manners of unenacted law, on the assumption that these give rise to similar problems regardless of terminological and practical differences or deceptive similarities. To take just one example, the fact that a British ethnographer called the social practices of an African tribe ‘customary law’ is no proof of sufficient affinity between them and what goes under the same name in international law. However, as it tells something about the speaker’s conception of custom, it should on that specific account be regarded as interesting for comparative purposes. The British colonial administration not only saw in those practices a form of custom, but it also set itself the task of regulating the ascertainment of the customary law thus (supposedly) produced, with a view to make them fit in the workings of a modern court system. Insofar as it attempted to overcome the uncertainties (supposedly) inherent in the local custom, British colonial legislation, unlike perhaps the usages it sought to domesticate, falls squarely within the practices that can be usefully compared to customary international law. 17 RB Serjeant, ‘The Customary Law of South-West Arabia and Bedouin Justice in Jordan’ in Custom III 269, 271. 18 M Gluckman, The Judicial Process among the Barotse of Northern Rhodesia (Manchester University Press 1955) 238–39. 19 ibid 239. See also AL Epstein, Juridical Techniques and the Judicial Process: A Study in African Customary Law (Manchester University Press 1954) 36. 20 J Gilissen, ‘La coutume: essai de synthèse générale’, in Custom. Fourth Part: The Contemporary World, LIV Transactions of the Jean Bodin Society for Comparative Institutional History (De Boeck 1989) 433, 458 (hereafter, Custom IV). 21 ibid 459. See, for a similar remark, the excellent contribution by E Kadens, ‘Custom’s Past’ in Bradley (n 11) 11: ‘the decisions of the International Court of Justice rather resemble those of premodern courts’. 22 Uruszczak (n 8) 149; Csizmadia (n 8) 88. 23 On this topic, see, generally, MB Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Law (Clarendon 1975); AN Allott, New Essays in African Law (Butterworths 1970); H Kuper and L Kuper (eds), African Law: Adaptation and Development (University of California Press 1965). See also HF Morris, ‘Jurisdiction of the Buganda Courts and the Scope of Customary Law in Uganda’ (1965) 9 J African L 154; AO Obilade, ‘Reform of Customary Court Systems in Nigeria under the Military Government’ (1969) 13 J African L 28; AO Obilade, ‘Jurisdiction in Customary Law Matters in Nigeria: A Critical Examination’ (1973) 17 J African L 227; A Ladley, ‘Changing the Courts in Zimbabwe: The Customary Law and Primary Courts Act’ (1982) 26 J African L 95. On the codification of African customary law, see TW Bennett and T Vermeulen, ‘Codification of Customary Law’ (1980) 24 J African L 207; S Falk Moore, Social Facts and Fabrications: “Customary” Law on Kilimanjaro, 1880-1980 (Cambridge University Press 1986). 24 Poudret (n 7) 515. See, by analogy, Sir J Baker, The Oxford History of the Laws of England, vol VI (OUP 2003) 277: ‘The city courts were governed by immemorial customs which were not subject to outside review; in the event of dispute, a custom was tried by the mayor or alderman and certified orally in the royal courts by the recorder.’ See also FA Greer, ‘Custom in the Common Law’ (1893) 34 LQR 153, 154–55. A similar situation arose before African Urban courts, which could be sized of disputes between city dwellers whose customs differed. See Epstein (n 19) 25: ‘Urban court members […] favoured the idea of codifying the various bodies of tribal law. [I]t would […] avoid the feeling sometimes expressed by litigants that their cases were not properly decided because the judges were not of their tribe and did not know their customs.’ 25 It sometimes sufficed that the judge declared to know the custom at issue for him to take notice of it. If he refrained from doing so, the custom was said to be ‘private’ and the party invoking it was called on to produce evidence of its existence. See L Mayali, ‘La coutume dans les “pays de par-deçà”: Belgique, Pays-Bas, Nord de la France (XIIe-XVIIIe siecles)’ in Custom II 295, 304. 26 A Gouron, ‘Aurore de la coutume’ in Coutumes et libertés. Actes des journées internationales de Toulouse, 4-7 juin 1987 (Publications de la Société d'histoire du droit et des institutions des anciens pays de droit écrit 1988) 181, 187. See also H Pissard, Essai sur la connaissance et la preuve des coutumes en justice, dans l’ancien droit français et dans le système romano-canonique (Rousseau 1910); J Gilissen, ‘La preuve de la coutume dans l’ancien droit belge’, in Hommage au Professeur Paul Bonenfant (1899-1965). Etudes d’historie médiévale dédiées à sa mémoire par les anciens élèves de son séminaire à l’Université libre de Bruxelles (Publications de l'ULB 1965) 563; E Conte, ‘Roman Law vs Custom in a Changing Society: Italy in the Twelfth and Thirteenth Century’ in P Andersen and M Münster-Swendsen (eds), Custom: The Development and Use of a Legal Concept in the Middle Ages. Proceedings of the Fifth Carlsberg Academy Conference on Medieval Legal History 2008 (DJØF 2009) 33. 27 A Ross, On Law and Justice (University of California Press 1959) 92. 28 ibid 103. 29 Kadens (n 21). See also L Waelkens, La théorie de la coutume chez Jacques de Révigny. Edition et analyse de sa répétition sur la loi De quibus (Brill 1984) 485–86. 30 See, for a representative approach, K Skubiszewski, ‘Elements of Custom and the Hague Court’ (1971) 31 ZaöRV 810, who ‘does not deal with the detailed problems of evidence relating to custom’. For the search of custom’s algorithm, see A D’Amato, ‘Customary International Law: A Reformulation’ (1998) 4(1) Int’l L Theory 1, 2. See also the symptomatic caveat introduced in R Kolb, Theory of International Law (Hart Publishing 2016) 129: ‘The link that the human spirit establishes between the relative regularity of […] behaviour and a rule of law cannot be expressed in any equation delivering certain results.’ 31 Cynus Pistoriensis, Lectura super codice, 524r, cited in Kadens (n 21) 27. 32 Waelkens (n 29) 353. 33 V Gionea, ‘La coutume historique en Valachie, en Moldavie et en Transylvanie durant le Moyen Age’ in Custom III 199, 217. 34 J Tsien, ‘Rite et coutume en Chine’ in Custom III 391, 406. 35 B Ter Haar, Adat Law in Idonesia (Bhratara 1962) 254–55; Y Bongert, ‘La coutume dans le sud-est asiatique’ in Custom III 349. 36 O Sachelarie, ‘La modernisation du droit en Roumanie au XIXe siècle et le problème de la coutume’ in Custom IV 207, 214. See also D Plas, ‘La coutume et les usages en droit social belge au XXe siècle’ in Custom IV 293, 307–08. 37 H Izdebski, ‘La coutume en tant que source du droit dans les pays socialistes européens (l’U.R.S.S. inclusivement)’ in Custom IV 133, 155–56. 38 Csizmadia (n 8) 111–12. 39 See J Giddings, ‘Custom in the Law of Contemporary England (19th-20th Centuries)’ in Custom IV 43, 55. 40 NF Pavkovic, ‘La coutume juridique dans les pays yougoslaves (XIIe-XIXe siècles)’ in Custom III 167, 177. 41 TA Bühler, ‘La coutume en Suisse (jusqu’à l’entrée en vigueur du Code civil suisse)’ in Custom II 359, 371. 42 R Thomas, ‘Writing, Law, and Written Law’ in M Gagarin and D Cohen (eds), The Cambridge Companion to Ancient Greek Law (Cambridge University Press 2005) 41, 48–49. 43 TO Elias, The Nature of African Customary Law (Manchester University Press 1956) 258, 275–76. 44 EA Keay and SS Richardson, The Native and Customary Courts of Nigeria (Sweet & Maxwell 1966) 209. See also J Gray, ‘Opinions of Assessors in Criminal Trials in East Africa as to Native Custom’ (1958) 2 J African L 5, 15–17. 45 J Poumarède, ‘La coutume dans les pays de droit écrit’ in Custom II 233, 247. 46 Waelkens (n 29) 355–56. See also L Waelkens, ‘L’origine de l’enquête par turbe’ (1985) 53 Tijdschrift voor Rechtsgeschiedenis 337; JF Poudret, ‘Réflexions sur la preuve de la coutume devant les juridictions royales françaises aux XIIIe et XIVe siècles, notamment le rôle de l’enquête par turbe’ (1987) 65 Revue historique de droit français et étranger 71. On the withering away of the enquête par turbe, see J Vanderlinden, ‘La coutume dans le droit français de “Pays de coutumes” aux XVIe, XVIIe et XVIIIe siècles’ in Custom II 271, 280–81. See also P Vinogradoff, ‘Some Considerations on the Methods of Ascertaining Legal Customs’ in HAL Fisher (ed), The Collected Papers of Paul Vinogradoff with a Memoir, vol 2 (Clarendon 1928) 402, 405: ‘it is difficult for us moderns to understand how it was possible to work such a procedure without being constantly arrested by differences among the turbiers’. 47 See eg Keay and Richardson (n 44) 229. 48 AN Allott, AL Epstein and M Gluckman, ‘Introduction’ in M Gluckman (ed), Ideas and Procedures in African Customary Law (OUP 1969) 1, 14. 49 (1909) Renner 550, 551 (Gold Coast). 50 ASJ Hannigan, ‘Native Custom, Its Similarity to English Conventional Custom and Its Mode of Proof’ (1958) 2 J African L 101. 51 W Blackstone, Commentaries on the Laws of England [1765] (Clarendon 1966) 69. 52 JGA Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. A Reissue with a Retrospect (Cambridge University Press 1987) 37: ‘The common law was by definition immemorial custom.’ Compare JT Cameron, ‘Custom as a Source of Law in Scotland’ (1964) 27 MLR 806. 53 (1828) 4 ER 1087. Cited in Giddings (n 39) 47. 54 Gold Coast Privy Council Judgments (1874–1928) 43. 55 AN Allott, ‘The Judicial Ascertainment of Customary Law in British Africa’ (1957) 20 MLR 244, 257. See also AJ Kerr, ‘Judicial Notice of Foreign Law and of Customary Law’ (1994) 111 S African LJ 577; P Sack, ‘“Law” and “Custom” in Papua and New Guinea’ in Custom. First Part: Antiquity, Black Africa, America, Australia, LI Transactions of the Jean Bodin Society for Comparative Institutional History (De Boeck 1990) 249, 263 (hereafter, Custom I) who diagnosed a move away from technical rules of evidence accompanied by an embrace of legislation and precedent. 56 Cited in S Falk Moore, ‘Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running “Their Own” Native Courts’ (1992) 26 L & Soc Rev 11, 13. 57 ibid 16. 58 As Moore (n 56) 34 points out, colonial documents present the interference with the local administration of justice ‘not as a form of power but as a form of knowledge’. 59 AL Epstein, ‘Procedure in the Study of Customary Law’ (1970) 1 Melanesian LJ 51, 52. See also NA Olennu, ‘The Structure of African Judicial Authority and Problems of Evidence and Proof in Traditional Courts’ in Gluckman (n 48) 101. 60 JF Holleman, Shona Customary Law, with Reference to Kinship, Marriage, the Family and the Estate (OUP 1952) x. 61 Allott, Epstein and Gluckman (n 48) 9–10. 62 M Gluckman, The Ideas in Barotse Jurisprudence (Manchester University Press 1965) 17: ‘the issue on which the judges were adjudicating was clearly not the narrow application of a single rule, or a small number of rules, to a set of facts. They were instead judging the general issue: whether particular people had behaved as reasonable incumbents of specified social positions.’ 63 PJ Bohannan, Justice and Judgment among the Tiv (OUP 1957) 112. See also PB Lafont, Toloi Djuat. Coutumier de la tribu Jarai (Publications de l'École française d'Extrême-Orient 1963) 14: ‘cette tradition orale n’éta[it] d’ailleurs jamais énoncée par les juges qui se contentaient de prononcer une petite formule mentionnant que le fait était traditionnellement pénalisé.’ Compare S Shiga, ‘Custom as Source of Law in Traditional China’ in Custom III 413, 423: ‘No case was found in which existence of some custom became a point at issue in court […]. [T]here was no law to be spelled out before trying and settle a dispute.’ 64 JH Driberg, ‘The African Conception of Law’ (1934) 16 J Comp Leg & Int’l L 230. 65 Epstein (n 19) 1. 66 Allott (n 55) 263 (emphasis in the original). A similar misunderstanding seems to have occurred in late-medieval Europe. See Whitman (n 13) 1337: ‘When learned lawyers set out to “prove” custom by consulting local witnesses, they were […] asking the wrong question. In matters of any difficulty, local law-making involved not agreeing upon “the rule” but agreeing upon a peaceful solution. In such circumstances, it is not surprising that learned lawyers often failed to get witnesses to produce any rule at all.’ Here, Whitman draws from P Craveri, Ricerche sulla formazione del diritto consuetudinario in Francia (Giuffrè 1969). Kadens (n 21) 16, sees in all this the imposition of ‘a lawyerly concept of legal rules upon a prelegal form of social organization’. See also E Kadens, ‘Custom’s Two Bodies’ in KL Jansen and others (eds), Center and Periphery. Studies on Power in the Medieval World in Honor of William Chester Brown (Brill 2013) 239–48. 67 This was done in the early Gold Coast case Welback v Brown (1882), cited in Allott (n 55) 246. 68 As reported by C McLachlan, ‘The Recognition of Aboriginal Customary Law: Pluralism Beyond the Colonial Paradigm’ (1988) 37 ICLQ 368, 372. An international lawyer (James Crawford) served as member of the Commission from 1982 until the completion of its work. 69 MM Green, Igbo Village Affairs, Chiefly with Reference to the Village of Umueke Agbaja (2nd edn, Cass 1964) 132. See also, more recently, S Abrahams, ‘The Name of the Game?’ (1987) 11(2) Cambridge Anthropology 15, 19: ‘Custom may be described by them as traditional, but we know it to be capable of rapid change and that the question who it belongs to is more important than how old it is.’ 70 C Ntampaka, ‘La coutume dans les droits africains après la réception des droits romanistes: l’exemple des pays d’Afrique centrale, le Rwanda et le Zaïre’ in Custom I 181, 186. 71 Pocock (n 52) 15. 72 A Kiralfy, ‘Custom in Mediaeval English Law’ (1988) 9 J Legal History 26. 73 As Lord Stowell held in The Slave Grace, R. Allen (1827), ‘[a]ncient custom is generally recognised as a just foundation of all law’ (166 ER 179). Cited in Giddings (n 39) 45. 74 Cited in H Vogt, ‘“Secundum consuetudinem et leges patrie”: The Concept of Law and Custom in Thirteenth Century Denmark’ in Andersen and Münster-Swendsen (n 26) 67, 76. 75 As F Kern, Kingship and Law in the Middle Ages (Praeger 1956) 162–71, admirably recounted: ‘In such cases an older charter overrides a more recent one, unless the latter expressly states that it is issued with knowledge of the earlier grant. […] Hence forgers went back as far as Constantine and Caesar. […] They reformed, in theory, by returning to the past. [As] the Middle Ages were marked by negligence in the preservation, handing down, and evaluation of recorded legal rules, [they] were consequently in practice often able to circumvent a law no longer suited to the times. […]. Might not […] some earlier forger belonging to the opposite party have used his talents to supplant right, and make wrong triumph? And so the decision is taken to help truth and right to victory by a new forgery. The accidents of traditions are corrected, and the true legal situation is restored; by creating evidence, the forger re-creates the law itself. Thus two armies of skillful forgers are at work, secretly undermining each other’s position, and yet with a good conscience on both sides; they repair the gaps in tradition in the only legally effective way. They do not talk about their activity, but their conscience is easy.’ 76 ibid 174. 77 Whitman (n 8) 1341. 78 ibid 1343–52. See also E Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Brill 1993) 27. On the diversity of custom, see also KN Llewellyn and EA Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (University of Oklahoma Press 1941) 213: ‘“I am generalizing old customs from what I know”, Calf Woman cautioned. “Some families did differently than others.”’ 79 C Mortet (ed), Livre de constitucions demenées el Chastelet de Paris (Mortet 1883). 80 ‘Coustume doit ester faite par commandement de roi, ou de conte, ou d’evesque, ou d’abbe roial, ou de tel qui le puisse faire et doie’ (cited in Cohen (n 78) 41). See also, on this subject, J Gilissen, ‘Loi et coutume: quelques aspects de l’interpénétration des sources du droit dans l’ancien droit belge’ (1953) 21 Revue d’histoire du droit 257; A Gouron, ‘Coutume contre loi chez les premiers glossateurs’ in A Gouron and A Rigaudière (eds), Renaissance du pouvoir législatif et genèse de l’Etat (Publications de la Société d'histoire du droit et des institutions des anciens pays de droit écrit 1988) 117. It seems possible to distinguish between two types of evidentiary crisis. Those of the first and more radical type would be addressed through a partial or total change of the procedures previously used to ascertain customary law. A second, milder kind of crisis would be typically addressed by altering the way in which existing procedures are applied. It has been noted that in British India, from the 1860s onwards, ‘[s]oliciting evidence of custom each time a family had a dispute over marriage or inheritance would have subjected the courts to enormous strain’ (C Mallampalli, ‘Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness’ (2010) 28 L & History Rev 1043, 1052). In response to this, claims based on ‘private’ customs were discouraged by considerably tightening up the standard of proof (JDM Derrett, Hindu Law Past and Present (Mukherjee & co. 1957) 78). In British colonies, the repugnancy clause, which required that local customs be set aside if inconsistent with natural justice, equity and good conscience, came in handy when the judge wished to cut through an evidentiary tangle. See K Bentsi-Enchill, ‘The Colonial Heritage of Legal pluralism’ (1969) 1 Zambia LJ 1, 20. 81 WW Buckland and AD McNair, Roman Law and Common Law: A Comparison in Outline (2nd edn, Cambridge University Press 1965) 15. 82 P Brand, ‘Law and Custom in the English Thirteen Century Common Law’ in Andersen and Münster-Swendsen (n 26) 17, 26. 83 See P Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law (Cambridge University Press 2016) 39–42. 84 LA Fallers, Law Without Precedent (University of Chicago Press 1969) 3. 85 Compare A Somek, ‘Beyond Kelsen and Hart’ in J Kammerhofer and J d’Aspremont (eds), International Legal Positivism in a Post-Modern World (OUP 2014) 151, 179. 86 Jennings (n 15). 87 See Eric Suy’s intervention reported in A Cassese and JHH Weiler (eds), Change and Stability in International Law-Making (de Gruyter 1988) 85. 88 See HE Chodosh, ‘Neither Treaty Nor Custom: The Emergence of Declarative International Law’ (1991) 26 Texas Int’l LJ 87, 99: ‘there currently appears to be no common understanding of customary international law’; JI Charney, ‘Universal International Law’ (1993) 87 AJIL 529, 537: ‘[a]n examination of the many analyses of the development of customary international law makes it clear that the process is opaque’; JF Murphy, The Evolving Dimensions of International Law: Hard Choices for the World Community (Cambridge University Press 2010) 3: ‘there is no general agreement on how the process of creating a customary norm of international law works’; J d’Aspremont, ‘A Postmodernization of Customary International Law for the First World?’ (2018) 112 AJIL Unbound 293, 295: ‘[t]he doctrine of customary law and the modes of legal reasoning that it puts in place are contradictory, indeterminate, and informal.’ For J Klabbers, ‘The Curious Condition of Custom’ (2002) 8(1) Int’l Legal Theory 29, 38, in the elusiveness of customary law lies a sort of political virtue: ‘It is precisely the intractable nature of the doctrine of customary international law that makes it so receptive to political considerations, and so renders it able to serve both justice and order, change and stability, as circumstances may demand.’ 89 See, however, I Detter de Lupis, The Concept of International Law (Norstedts Juridik 1987) 113: ‘It is clear that too many writers now unquestioningly accept the notion of customary law, stretching and adapting it to fit realities, when it may be better to abandon it for more accurate categories.’ 90 B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” Customary International Law?’ (1965) 5 Indian J Int’l L 23. 91 RJ Dupuy, ‘Coutume sage et coutume sauvage’ in Mélanges offerts à Charles Rousseau: la Communauté internationale (Pedone 1974) 75. 92 AE Roberts, ‘Traditional and Modern Approaches to Customary International Law’ (2001) 95 AJIL (2001) 757. 93 FL Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 AJIL 146. 94 As reported in Cassese and Weiler (n 87) 2. 95 ibid v. 96 Ten years earlier RJ Erikson, ‘Soviet Theory of the Legal Nature of Customary International Law’ (1975) 7 Case Western Res J Int’l L 148, 168, had written, with a touch of unwitting irony, that ‘[u]ncertainty has always been a feature of customary law which Soviet writers have found distasteful.’ 97 Kirgis (n 93). 98 Cassese and Weiler (n 87) 10. 99 GM Abi-Saab, ‘The Newly Independent States and the Rules of International Law: An Outline’ (1962) 8 Howard LJ 95, 103. See also W Jenks, ‘The Will of the World Community as the Basis of Obligation in International Law’ in Hommage d’une génération de juristes au Président Basdevant (Pedone 1960) 280. 100 WM Reisman, ‘The Cult of Custom in the Late 20th Century’ (1987) 17 Cal Western Int’l LJ 133, 135 (emphasis in the original). 101 Reisman ibid 145: ‘The world community will legislate for itself in the last decades of the twentieth century, perhaps not badly, but not democratically.’ 102 ibid 136. 103 ibid. 104 ibid 145. 105 See n 15. 106 For a discussion of the Jungian notion of ‘Persona’, see A Stevens, Jung (OUP 2001) 63–64. 107 PD Baron, ‘The Influence of Psychoanalysis on Jurisprudence’ in T Murphy (ed), Western Jurisprudence (2004) 438, 450–51. See also D Caudill, ‘Freud and Critical Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis’ (1991) 66 Indiana L Rev 651. Recourse to Jungian conceptual frames is extremely rare. An exception is C O’Connor Udell, ‘Parading the Saturnian Tail: Projection, Jung and the Law’ (2000) 42 Arizona L Rev 731. 108 P Goodrich, ‘Introduction: Psychoanalysis and Law’ in P Goodrich (ed), Law and the Unconscious: A Legendre Reader (Palgrave Macmillan 1997) 1, 5. 109 P Legendre, De la société comme texte. Linéaments d’une anthropologie dogmatique (Fayard 2001). 110 Along the lines of P Ricœur, De l’interprétation. Essai sur Freud (Seuil 1965). 111 JHH Weiler, ‘The Geology of International Law: Governance, Democracy and Legitimacy’ (2005) 64 ZaöRV 547, 548–49. 112 ibid 551. 113 For A Cassese, International Law in a Divided World (OUP 1986) 4, international law possessed ‘two souls’, one ‘Westphalian’, the other embodied in the UN Charter and ‘incapable of supplanting the first’. The heuristic I propose has a different focus and is more fine-grained. 114 For a wide-ranging investigation, see DR Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Harvard University Press 1990). 115 M Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Mich L Rev 1946. 116 S Estreicher, ‘Rethinking the Binding Effect of Customary International Law’ (2003) 44 Virginia J Int’l L 5. 117 A Carty, Philosophy of International Law (2nd edn, Edinburgh University Press 2017) 35. 118 L Gradoni, ‘Nullum crimen sine consuetudine: A Few Observations on How the International Criminal Tribunal for the Former Yugoslavia Has Been Identifying Custom’ (European Society of International Law Inaugural Conference, Agora Papers, 2004) 15 <http://www.esil-sedi.eu/sites/default/files/Gradoni_0.PDF> accessed 24 September 2018. See also N Arajärvi, The Changing Nature of Customary International Law. Methods of Interpreting the Concept of Custom in International Criminal Tribunals (Routledge 2014) 73–74. 119 Cassese and Weiler (n 87) 126. 120 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) Judgment [1969] ICJ Rep 3, 44, para 73. 121 ILC, Draft Conclusions on Identification of CIL (n 3) 135. 122 ibid 136. 123 P Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 413, 434. 124 On the persistent objector doctrine, see CA Bradley and M Gulati, ‘Withdrawing from International Custom’ (2010) 120 Yale LJ 220; JA Green, The Persistent Objector Rule in International Law (OUP 2016). 125 ILC, Draft Conclusions on Identification of CIL (n 3) 152. 126 ibid. 127 ibid. 128 ibid 153: ‘The requirement that the objection be maintained persistently applies both before and after the rule of customary international law has emerged. Assessing whether this requirement has been met needs to be done in a pragmatic manner, bearing in mind the circumstances of each case.’ 129 DP O’Connell, International Law, vol 1 (Stevens 1965) 28. 130 See A von Bogdandy and I Venzke, ‘The Spell of Precedents: Lawmaking by International Courts and Tribunals’ in CPR Romano and others (eds), Oxford Handbook of International Adjudication (OUP 2013) 503; H Ruiz Fabri and L Gradoni, ‘La hiérarchisation des précédents’ in N Aloupi and C Kleiner (eds), Le précédent en droit international. Colloque de Strasbourg (Pedone 2016) 191. 131 D Bodansky, ‘Prologue to a Theory of Non-treaty Norms’ in M Arsanjani and others (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff 2011) 119, 127. 132 ILA Committee on the Formation of Customary (General) International Law, ‘Final Report: Statement of Principles Applicable to the Formation of General Customary International Law’ (2000) 69 ILA Conf Rep 712, 715–16. 133 ILC, Draft Conclusions on Identification of CIL (n 3) 122. 134 Weil (n 123) 438 (emphasis added). 135 ibid. 136 Cheng (n 90). Lord McNair, writing in the late 1950s, saw in legislation not only international law’s manifest destiny but also something that was already present, if imperfectly, in international society: ‘It would appear that no society can become a real society unless it endows an organ with the power of binding all its members, and the society of States is being gradually driven, as I see it, to develop this power by less direct methods. In other words, these instances of the attribution of an objective obligation to certain kinds of treaties represent the groping of the society of States in its effort to fill up this lacuna. Sooner or later, it may be, the political atmosphere will become such that it will be possible to generalize this power and place it in the hands of some organ. In the meantime, it is useful to call attention to particular instances of it wherever they occur, in the belief that eventually something more systematic will emerge’ (Sir AD McNair, ‘Treaties Producing Effects “Erga Omnes”’ in Scritti di diritto internazionale in onore di Tomaso Perassi, vol II (Giuffrè 1957) 21, 32–33). 137 The USA did it through its representative to the General Assembly’s Committee on the Peaceful Uses of Outer Space. See DG Mejía-Lemos, ‘Some Considerations Regarding “‘Instant’ Customary Law”, Fifty Years Later’ (2015) 55 Indian J Int’l L 85, 87; Cheng (n 90) 136. 138 The term ‘hegemony’ is here preferred to ‘power’ to signify power as it operates through and not against international custom, using it for hegemonic purposes. 139 Cassese and Weiler (n 87) 2. 140 ibid 126. 141 The concept is mentioned twice in the commentary, always in quoted passages drawn from the ICJ’s case law. See ILC, Draft Conclusions on Identification of CIL (n 3) 136, 146. For valuable insights on this subject, see KJ Heller, ‘Specially-Affected States and the Formation of Custom’ (2018) 112 AJIL 191. 142 B Stern, ‘Custom at the Heart of International Law’ (2001) 11 Duke J Comp & Int’l L (2001) 89, 102, 107–08. 143 Untitled document <http://legal.un.org/ilc/guide/1_13.shtml> accessed 24 September 2018. 144 The ‘Grotian Moments’ theorized by MP Scharf, Customary International Law in Times of Change: Recognizing Grotian Moments (Cambridge University Press 2013) 220, 216–17, ‘precious’ and ‘rare’, are pure hegemonic bliss: ‘the (potential) Grotian Moment began with a custom pioneer – a state (or international tribunal) willing to initiate a new practice contrary to existing customary international law in order to create a new rule of customary international law’. The hegemon, in the guise of the ‘custom pioneer’, is not interested in fostering a procedural settlement, to ‘stabilize’ custom, as it were; it rather stands ready to use it as a convenient vehicle to turn its preferences into law: ‘customary international law must have the capacity in unique circumstances to respond to rapidly evolving developments by producing rules in a timely and adequate manner’. It is custom itself, portrayed here as an objective force, that does all that. 145 In this perspective, the recent ‘empirical turn’ in the analysis of custom-determination processes represents a positive development. SJ Choi and M Gulati, ‘Customary International Law: How Do Courts Do It?’ in Bradley (n 11) 117, 125: ‘In terms of literature, there appears to be little in the way of empirical examinations of court determinations.’ See also N Petersen, ‘The International Court of Justice and the Judicial Politics of Identifying Customary International Law’ (2017) 28 EJIL 357. An early foray into this genre is L Gradoni, ‘L’attestation du droit international pénal coutumier dans la jurisprudence du Tribunal pour l’ex Yougoslavie: “Régularités” et “Règles”’ in M Delmas Marty and others (eds), Les sources du droit international pénal (Société de législation comparée 2004) 24. 146 VP Tzevelekos, ‘Introductory Note: Beyond the Identification of International Customary Rules’ (2017) 19 Int’l Community L Rev 1: ‘Every generation of lawyers has painstakingly strived to demystify it [however] it may simply be that the lawyers (even the greatest among them) do not possess the tools (i.e. the methodological equipment) that would allow them to “tame” customary law.’ 147 D Bodansky, ‘Does Custom Have a Source?’ (2014) 108 AJIL Unbound 179: ‘Customary international law often seems like a riddle wrapped in a mystery inside an enigma.’ See also H Ruiz Fabri, Sur quelques aspects de la théorie de la coutume en droit international (1989), who chose Jean Cocteau’s dark humour to preface her PhD thesis: ‘Puisque ces mystères nous dépassent, feignons d’en être l’organisateur.’ 148 See the important contribution of Kadens (n 21). 149 See especially BS Chimni, ‘Customary International Law: A Third World Perspective’ (2018) 112 AJIL 1, whose optimism as to the possibility of harnessing international custom to foster the interests of subaltern classes is generally not shared by the participant in a symposium hosted by AJIL Unbound <https://www.cambridge.org/core/journals/american-journal-of-international-law/ajil-unbound> accessed 21 November 2018. See also, along similar lines, J Chinwe Okubuiro, ‘Application of Hegemony to Customary International Law: An African Perspective’ (2018) 7 Global J Comp L 232; Heller (n 141). For a skeptical take on custom’s emancipatory potential, see GRB Galindo and C Yip, ‘Customary International Law and the Third World: Do Not Step on the Grass’ (2017) 16 Chinese JIL 251. Historically, the ideology of a ‘common customary law’ generally underpinned authoritarian assertions of power. See eg Kelley (n 114) 101: ‘the redaction of customs is a classic example of the convergence between, and mutual reinforcement of, writing, literacy, the expansion of the legal profession, and political power – a process in which custom as an expression of popular will was indeed overwhelmed’; W Heinrich, ‘Recherches sur la problématique du droit coutumier’ in Recueil d’études sur les sources du droit en l’honneur de François Gény, vol II (Sirey 1934) 277, 290: ‘Pour que le droit coutumier soit réellement viable […] [l]’appui des gouvernants est nécessaire. D’où le rôle très important joué par les tribunaux dans l’élaboration du droit coutumier’; MN White, ‘African Customary Law: The Problem of Concept and Definition’ (1965) 9 J African L 86, 87. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. 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TI - Un-procedural Customary Law
JF - Journal of International Dispute Settlement
DO - 10.1093/jnlids/idz008
DA - 2019-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/un-procedural-customary-law-yQZx5Mjm2p
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -