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Hidemi Suganami's thoughtful criticisms of my recent article in the Review1 throw valuable light on some of the key elements of the argument which I tried to outline there. None the less, those criticisms do not seem to undermine my central argument, which is that there is a difference between the conception of customary international law as a set of laws which in principle bind all states and the conception of customary international law as a set of obligations which in principle bind only those states which have consented to be bound by them. By ‘law’ here, I mean a rule which purports to apply to all entities which fall within the open-ended set (i.e., ‘states’) which constitutes its sphere of application rationae personae. An ‘obligation’, on the other hand, claims no such general applicability, but—in the case of consensual obligations, with which we are here concerned—is only binding upon the closed set of states which have consented to be bound by it. There is, in my view, no good reason why the orthodox conception of customary international law as a set of laws should be preferred to the conception of customary international law as a set of obligations.
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- Copyright © British International Studies Association 1984
References
1. Lowe, A. V., ‘Do general rules of international law exist?’, Review of International Studies, xi (1983), pp. 207–213 (hereafter, Lowe).CrossRefGoogle ScholarSuganami, Hidemi, ‘A. V. Lowe on general rules of international law’, Review of International Studies, 175–182 (1984), (hereafter, Suganami).CrossRefGoogle Scholar
2. Suganami, p. 175.
3. Ibid., pp. 176, 177.
4. E.g., the British acceptance of the rules of self-defence enunciated in the Caroline case: British and Foreign State Papers, vol. 29, pp. 1137–8Google Scholar; Ibid., vol. 30, pp. 195 –6; reproduced in Harris, D. J., Cases and Materials in International Law, 2nd edn., p. 676 (1979).Google Scholar
5. E.g., the right of passage in the Right of Passage case, (1960) 1CJ Reports 6.
6. Suganami, p. 177. There are equivalent rules for determining what constitutes persistent objection.
7. Suganami, p. 177.
8. See Furmston, M. P., Cheshire and Fifoot's Law ofContract, 10th edn., pp. 116–118 (1981).Google Scholar
9. I did not intend to suggest that the United States's; position on the deep seabed could not be explained by persistent objection under Interpretation 1. 1 have so explained it myself: see ‘The international seabed: a legacy of mistrust’, Marine Policy, v, 205 at 213 (1981).Google Scholar
10. Suganami, p. 180.
11. Lowe, p. 212.
12. Suganami, p. 181.
13. Op. cit. n. 9 above, at pp. 213–44.
14. The example would have been better if state X had a wholly centrally planned economy, both for home and export trades, directed by presidential decree.
15. Though there may be some quasi-official support in international law manuals prepared by or under the authority of governments.