Revival: Legitimacy Deficit in Custom: Towards a Deconstructionist Theory (2001) by Ben Chiagra

Author:Ben Chiagra [Chiagra, Ben]
Language: eng
Format: epub
Tags: Social Science, General, Sociology
ISBN: 9781351766777
Google: 6kArDwAAQBAJ
Barnesnoble:
Goodreads: 35637391
Publisher: Routledge
Published: 2017-07-05T00:00:00+00:00

The Court’s Declaration: Merits and Omissiong29

The ICJ made no effort whatsoever to demonstrate the coming together of State practice and opinio juris that would justify its declaration that the principle of elementary considerations of humanity had emerged in accordance with the formal requirements of article 38(1)(b). This declaration is barren to the extent that:

1)

it does not say anything about the quality of sufficiency required for State practice and opinio juris in the formation of custom,

2)

it does not inform us any more about the matrix of the content of custom, and lastly

3)

it does not say anything new about custom.

Instead it shrouds with mystery the ICJ’s interpretation of article 38(1)(b). One consequence of this is the obvious compromise of article 38(1)(b). Another is that as a source of law custom’s transparency is hindered because both its operators and the international tribunals that formally declare it cannot claim to know what the other is doing. This is illustrated by the United Kingdom’s desperation of mounting its case against Albania on an inapplicable treaty and the ICJ’s rejection of that attempt of the United Kingdom and simultaneous declaration of a general and well-recognised norm of customary international law. In turn, this makes custom a mysterious doctrine given more to speculation than to certainty. This is a shattering prospect in a legal system where compliance is secured to a great extent by individual norms’ own ability to pull addressees towards compliance, which may be said to depend on their own transparency in the eyes of their addressees. There is nothing transparent about mysteries and speculations. In fact, the one thing certain about them is that they are not predictable. Predictability is an integral facet of legitimacy. By mysteriously enthroning as customary international law these three principles30 without demonstrating by what process they had become so, the ICJ appeared to plunge the legitimacy of custom into disrepute. A further hazard of this practice is that other courts and tribunals will apply as customary law and without questioning their validity norms so formed. This has the potential to perpetuate the violence inflicted on article 38(1)(b) in the first instance. In the MN Saiga (No. 2) Case, the recently established International Tribunal for the Law of the Sea confidently invoked and applied rules of customary international law inaugurated by the PCIJ31 and ICJ32 respectively. The Tribunal found that Guinea’s responsibility towards the crew of the MN Saiga resulted from “considerations of humanity”, a species of general international law.33 In its consideration of Guinea’s argument that its action against the Master and crew of the M/V Saiga was covered under the justification of “State necessity”, the Tribunal relied upon the ICJ’s ruling in the Case Concerning the Gab-ikovo-Nagymaros Project (Hungary v. Slovakia),34 that two conditions had to be satisfied before that defence could be extended to the party pleading it. The tribunal cited as unquestionable authority the ICJ statement that: “ … in endorsing these conditions, the court stated that they must be cumulatively satisfied and that they reflect customary international law”.

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