SPEECH THE LAW OF THE SEA: CUSTOMARY INTERNATIONAL LAW DEVELOPMENTS THE AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW EDWIN A. MOOERS LECTURE 11 October 1984 Louis B. SOHN* Two recent events have revived the debate about the role of international agreements in the development of customary international law. The adoption of the United Nations Law of the Sea Convention (the Convention)' by an almost unanimous vote,2 followed by the signature of the Convention by 159 countries, 3 has led to the contention that a large part of the Convention, and maybe even all of it, somehow had been incorporated in customary international law, applicable to both signatories and nonsignatories alike, regard4 less of the fact that only a few States have ratified this document. Traditionally, a treaty entered into force only when the requisite * Woodruff Professor of International Law, University of Georgia School of Law, and Bemis Professor of International Law, Emeritus, Harvard Law School. 1. For final official text, see United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea and Final Act of the Third United Nations Conference on the Law of the Sea, U.N. Pub. E.83.V.5 (1983) [hereinafter cited as 1982 Convention on the Law of the Sea]. 2. The Convention was approved on April 30, 1982, by 130 votes in favor, 4 against (including the United States), with 17 abstentions (including the Soviet Union and several Eastern and Western European States). U.N. Doc. A/CONF.62/SR.182 at 10 (1982). 3. The Convention was signed at Montego BayJamaica, on December 10, 1982, by 119 delegations; by March 1984, it had been signed by 134 countries. U.N. Doc. LOS/PCN/INF/4 (1984). By December 9, 1984, 159 countries had signed the Convention. For a list of signatories, see U.N. Docs. A/39/647 at 37-41 (1984) and A/39/647/Add.1 at 1-2 (1984). 4. By October 31, 1984, 14 countries had ratified the Convention. U.N. Doc. A/39/647 at 6, 37-41 (1984).

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number of ratifications or accessions had been deposited and was 5 binding only on the States that had ratified it or had acceded to it. The Convention, however, is a treaty that is still far from collecting the necessary sixty ratifications, but nevertheless is treated as if it were in force. Some States are already claiming rights under the Convention, 6 and others are accusing some States of having violated this instrument, though some of the accusers have themselves not signed the Convention and most of them are not yet ready to ratify it. Although a few of the accused States have signed the Convention, at least one of them has expressly announced that it does not intend to sign it. Others are delaying signature, hoping that some miracle will enable them to solve the dilemma regarding which of the two groups of States they would risk offending most by either taking or not taking action. A chance for some economic gains can be improved by positive steps, but the wrath of a major power can be incurred by taking them. Although there is considerable solidarity on the side of the Convention's proponents, there is disarray among those States that are unhappy about an important part of the Convention. The second event that complicated the situation was the shifting of gears by the main opponent of the Convention. This opponent not only accepted an important part of the Convention and made it part of domestic law, but also issued a broad statement of ocean policy praising most parts of the Convention as confirming existing maritime law and practice and fairly balancing the interests of all States.7 Some have greeted this event as an acceptance of the inevitable, and others have regarded it as an attempt to break up the package that made the consensus on the Convention's several hundred provisions possible. While one group claims the right to pick and choose, the other group insists on the all or nothing proposition. Is all this unprecedented or is it simply a result of a recent evolu5. See Vienna Convention on the Law of Treaties, openedfor signatureMay 23, 1969, U.N. Doc. A/CONF.39/27 (1969), reprinted in 63 AM. J. INT'L L. 875 (1969), and in 8 I.L.M. 679 (1969). According to Article 34, "[a] treaty does not create either obligations or rights for a third State without its consent." Id., reprintedin 63 AM. J. INT'L L. at 886, and in 8 I.L.M. at 693. According to Article 38, however, other articles of the Convention do not preclude "a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such." Id., reprintedin 63 AM.J. INT'L L. at 887, and in 8 I.L.M.

at 694. 6. By March 6, 1985, 111 States had established 200-mile fishing limits or exclusive economic zones. BUREAU OF INTELLIGENCE & RESEARCH, U.S. DEP'T OF STATE, PUB. No. 36, NATIONAL CLAIMS TO MARITIME JURISDICTION 12 (1985). 7. See infra note 35 and accompanying text (discussing statement on the U.S. Ocean Policy).

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tion in the way international law is made? It is quite clear that the second proposition is the correct one and that there has been such a revolutionary change in the rules relating to sources of international law and in the ways of finding evidence that the practice of States has reached the point at which a new rule of customary international law has been generally accepted as such. We are far from the early nineteenth century view that the best evidence of a rule of international law can be found in the writings of eminent international lawyers who have made a diligent analysis of State practice and have concluded that a rule of international law exists.8 Since those days, the practice of States in each field of international law has increased in manifold ways and few writers can encompass even a small part of it. Diplomatic correspondence has reached such proportions that even the major powers are unable to publish in a timely fashion more than a minor part of it. Policy statements on issues of international law are made in many fora, not only in parliaments or international conferences, but also before press conferences, on radio, and on television. No longer can a newspaper boast that it publishes all the news that is fit to printthere is not enough paper for it. Some think that computers might solve the problem of locating new evidence of international practice, but for a long time this will remain a costly and unsatisfactory process because there is no easy way to systematize the coding of the documents and there are not enough experts who are able to adapt the software to the changing needs of international law practitioners. The American Society of International Law has been working on ways to locate new evidence of international practice for several years, but there is still little agreement on the best way of reaching this goal. The result of all these developments is general frustration about traditional approaches to both the sources of international law and the evaluation of evidence of the creation or development of customary international law. Instead of focusing on what the various foreign ministries have been doing, singly or through bilateral diplomatic correspondence, the modern tendency is to pay more attention to what the governments are doing together at gatherings in which most States are represented. International lawyers no longer rely on a crisis producing an outpouring of statements from which a 8.

See H. WHEATON, ELEMENTS OF INTERNATIONAL LAW 23-27 (R. Dana 8th ed. 1866)

(listing text writers as primary sources of international law). According to Justice Gray, "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works ofjurists and commentators." The Paquete Habana, 175 U.S. 677, 700 (1900).

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principle of international law might be deduced. They no longer wait for one of those great cases like the North Atlantic Coast Fisheries Case in 1910, where twelve volumes of hitherto hidden documents were presented to a tribunal of the Permanent Court of Arbitration, on the basis of which the tribunal was able to announce some important decisions concerning the existence of several rules of customary international law.9 We can no longer rely on a scholar disappearing in the archives of a particular State and after many years of research producing a set of volumes on the international law practice of that State. We are all grateful to John Bassett Moore, Green Hackworth, and Marjorie Whiteman for what they have given us in their Digests of International Law,' 0 and there are now similar collections in several other countries."1 Even if there still are scholars willing to do that, it is quite clear that one's lifetime is not long enough to even scratch the surface of the treasure troves hidden in the multiplying archives of many nations. While I am one of those who loves to embark on a search through history to try to trace the origin and evolution of a particular principle of international law, 12 1 have long ago lost the illusion that a definitive history of any such principle can be written. Many times I have put on paper the result of perhaps more thorough research of a particular principle than anyone had done before, with the full realization that there were still hundreds of tantalizing references that came to my attention but which I did not have time to locate and read. The Romans realized it long ago that ars longa, vita brevis13 -life is too short to study all that humanity has produced, even if we limit ourselves to a small segment. It is clear that we have to find a better way to deal with this important subject. I believe that by trial and error we have found it. The first step was the resort to multilateral treaties in place of hundreds of bilateral ones. What a great event it was when in 1874 the Universal Postal Union was established, its treaty replacing a host of bilateral arrangements that were both inefficient and costly. 14 Encouraged by such multilateral agreements, the two great associa9.

The North Atlantic Coast Fisheries Case (G.B. v. U.S.), 11 R. Int'l Arb. Awards 167

(1961). 10. See G. HACKWORTH, DIGEST OF INTERNATIONAL LAW (1940-1944);J. MOORE, A DIGEST OF INTERNATIONAL LAW (1906); M. WHrrIEMAN, DIGEST OF INTERNATIONAL LAW (1963-1973). 11. See, e.g., A. Kiss, RiPERTOIRE DE LA PRATIQUE FRAN9AISE EN MATInRE DE DROIT INTERNATIONAL PUBLIC (1962-1972); C. PARRY, A BRITISH DIGEST OF INTERNATIONAL LAW (1965). 12. See L. SOHN & T. BUERGENTHAL, "Notes on International Regulation of Private Reprisals," in INTERNATIONAL PROTECTION OF HUMAN RIGHTS 30-40 (1973). 13. Although this statement is usually cited in its Latin version, it seems to have come from Hippocrates. See PUTNAM'S COMPLETE BOOK OF QUOTATIONS 492 (Benham's ed. 1926); B. EVANS, DICTIONARY OF QUOTATIONS 31-32 (1978).

14.

M.O. HUDSON, PROGRESS IN INTERNATIONAL ORGANIZATION 9-11 (1932).

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275

tions of international lawyers, the Institute of International Law and the International Law Association, started preparing codes of international law on various subjects, hoping that an international conference would finally be called to adopt them. 15 The Hague Conferences of 1899 and 1907 proved that this method can work, as is testified by the wide acceptance of both the various conventions relating to the laws of war on land and at sea and the pioneering 16 conventions on the peaceful settlement of international disputes. This new method of establishing rules of international law blossomed after the First World War, and Manley Hudson collected 670 multipartite treaties between 1920 and 1945 in his collection of International Legislation.17 At the beginning, although some international lawyers supported this new concept, others accused Hudson of creating dangerous illusions.18 Nevertheless, this movement to cover one field after another with multipartite instruments increased geometrically after the Second World War, and there is no longer anybody brave enough to collect them. Several publishers have tried to continue the Hudson series, but soon found the task too gigantic. Although every one of these multipartite agreements adds a brick to the edifice of international law, some of them are more law-making than others. In recent years, international lawyers have learned to pay special attention to treaties carefully prepared by various international organizations either directly or through such special bodies as the International Law Commission of the United Nations and similar commissions and committees functioning under other international auspices. Among them are such codificatory instruments as the Vienna conventions on diplomatic and consular relations and on the law of treaties, 19 the Geneva conventions on humanitarian law, 20 and the many conventions on the law of the 1 L. OPPENHEIM, INTERNATIONAL LAW 58 n.1 (H. Lauterpacht 8th ed. 1955). For the texts of the 1899 and 1907 Conventions, see I C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA 1776-1949, at 230-72, 577-741 (1968). 17. See M.O. HUDSON, INTERNATIONAL LEGISLATION (1931-1950). 18. See, e.g., Erler, InternationalLegislation, 2 CAN. Y.B. INT'L L. 153, 155-56 (1964) (Hudson's use of "international legislation" to describe treaties adopted at international conferences is misleading, as they are merely "pre-legislative" acts); McNair, InternationalLegislation, 19 IowA L. REv. 177, 178 (1934) (Hudson's term, "international legislation," to describe a compilation of treaties is metaphoric); see also T. GIHL, INTERNATIONAL LEGISLATION 46-73 (1937) (arguing that concept of "international legislation" is misleading because often it is a codification of existing law for only a few States). But see Jennings, The Progressof International Law, 34 BR. Y.B. INr'L L. 334, 343 (1958) (the term "international legislation," as applied to law making by treaty, is justified by "the importance and volume of its achievement"). 19. See United Nations, The Work of the International Law Commission 173-262, U.N. Pub. E.80.V.11 (3d ed. 1980). 15. 16.

20.

See G. DRAPER, THE RED CROSS CONVENTIONS (1958) (discussing 1949 Geneva Con-

ventions); U.N. Doc. A/32/144 (1977) (containing 1977 Geneva Protocols).

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22 sea21 and the protection of the marine environment. The various conventions mentioned above have combined the codification of existing law with the development of the new law, and even an expert finds it difficult to determine which provisions of a particular treaty belong to one category or the other. Frequently, these conventions are applied by governments and international tribunals from the moment of their approval, without waiting for their ratification. This is true in particular of the Convention on the Law of Treaties, which was widely applied long before its coming into force in 1980.23 Although the United States has not ratified that Convention, both the Department of State 24 and the courts of the United States have applied the Convention as "declaratory of customary international law." 2 5 We see that process developing with respect to the 1982 Law of the Sea Convention. In fact, it be21. See 1982 Convention on the Law of the Sea, supra note 1; 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, 17 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285; 1958 Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205; 1958 Convention on the Continental Shelf, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311; 1958 Convention on the High Seas, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. 22. See K. HAKAPXX, MARINE POLLUTION IN INTERNATIONAL LAW 75-129 (1981); 3 N. SINGH, INTERNATIONAL MARITIME LAW CONVENTIONS 2233-2548 (1983); G. TIMAGENIS, INTERNATIONAL CONTROL OF MARINE POLLUTION

124-574 (1980).

23. Although the Law of Treaties Convention came into force only in 1980, the International Court ofjustice already declared in 1971 that the rules laid down in that convention "concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject." Advisory Opinion Concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia, 1971 I.C.J. 16, 47. 24. The Legal Adviser to the U.S. Department of State has stated that "[w]hile the United States has not yet ratified the Vienna Convention on the Law of Treaties, we consistently apply those of its terms which constitute a codification of customary international law. Most provisions . . ., including Articles 31 and 32 on matters of treaty interpretation, are declaratory of customary international law." Nash, Contemporary Practiceof the United States Relating to InternationalLaw, 75 AM. J. INT'L L. 142, 147 (1981); see also 1979 DIGEST OF U.S. PRACTICE IN INT'L L. 692, 703-05, 767, 769 (M. Nash ed.) (discussing application of Vienna Convention on Law of Treaties to Salt II documents); 1978 DIGEST OF U.S. PRACTICE IN INT'L L. 701, 767, 775 (M. Nash ed.) (discussing application of Vienna Convention on Law of Treaties to Panama Canal Treaties); 1974 DIGEST OF U.S. PRACTICE IN INT'L L. 198, 228, 235 (A. Rovine ed.) (discussing definition of treaty, effects of notification of succession, and provisional application under Vienna Convention on Law of Treaties); 1973 DIGEST OF U.S. PRACTICE IN INT'L L. 482-83 (A. Rovine ed.) (ustifying suspension of a cease-fire agreement under Vienna Convention on Law of Treaties in view of Democratic Republic of Vietnam's violation of international laws). 25. See Day v. Trans World Airlines, 528 F.2d 31, 33, 36 (2d Cir. 1975); Denby v. Seaboard World Airlines, Inc., 575 F. Supp. 1134, 1138 (E.D.N.Y. 1983), reu'd on other grounds, 737 F.2d 172 (2d Cir. 1984); Husserl v. Swiss Air Transp. Co,, 351 F. Supp. 702, 707 n.6 (S.D.N.Y. 1972); see also Weinberger v. Rossi, 456 U.S. 25, 29 n.5 (1982) (citing Vienna Convention on Law of Treaties for proposition that "treaty" has broad meaning); United States v. Cadena, 585 F.2d 1252, 1261 (5th Cir. 1978) (citing Vienna Convention on Law of Treaties for proposition that treaties are not applicable to citizens and vessels of States nonparties to them), rev'd on other grounds, United States v. Michelena-Orovio, 719 F.2d 738, 756-57 (5th Cir. 1983).

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gan before the conclusion of the conference that prepared that treaty as some States started putting into force some parts of the Convention as soon as they were generally agreed on, especially certain provisions relating to the rights of coastal States.2 6 On the other hand, major maritime States stopped protesting against the exercise of these new rights as soon as they obtained general assurance that freedom of navigation in important coastal areas would be effectively protected. It is not surprising, therefore, that the next step was to consider the consensus reached on the new Convention on the Law of the Sea as evidence of its general acceptance as emerging customary law. This is not a new phenomenon. In 1930 the Hague Conference on the Progressive Codification of International Law considered the subject of territorial waters. While no text was adopted by the Conference, because no agreement could be reached on the extent of territorial waters, a committee of the Conference presented a generally agreed on report on the legal status of territorial waters, dealing with such issues as the baseline of the territorial waters and the right of innocent passage.2 7 This report generally has been accepted as an authoritative statement of the law on the subject, and when the International Law Commission of the United Nations the 1930 text with started working again on this topic, it adopted 28 only minor amendments and additions. When the Law of the Sea Conventions were adopted at the First United Nations Law of the Sea Conference in 1958, the Convention on the High Seas stated in its preamble that its provisions were "generally declaratory of established principles of international law," 29 and no States nonparties to that Convention have disputed that statement. Although other 1958 Conventions did not state expressly that their texts have become a part of customary international law, most of their provisions have also been considered as reflecting the existing or emerging customary international law. For 26.

See supra note 6 and accompanying text (illustrating States' treatment of Convention

as if it were in force). 27. See Acts of the Conference for the Codification of International Law, Minutes of the Second Committee, Territorial Waters, Vol. III, League of Nations Doc. C.351(b)M.145(b)V, at 212 (1930); see also Reeves, The Codification of the Law of TerritorialWaters, 24 AM.J. INT'L L.

486, 496-97 (1930) (the draft sets forth "international law as it is" and is a landmark in the long process of codification). 28. See Report of the International Law Commission to the General Assembly, 11 G.A.O.R. Supp. (No. 9) at 19-22, U.N. Doc. A/3159 (1956); Report of the International Law Commission to the General Assembly, 9 G.A.O.R. Supp. (No. 9) at 12, U.N. Doc. A/2693 (1954). 29. 1958 Convention on the High Seas, 13 U.S.T. 2312, 2314, T.I.A.S. No. 5200, 450 U.N.T.S. 82, 82.

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instance, the International Court of Justice in the North Sea Continental Shelf Cases pointed out that certain articles of the 1958 Convention on the Continental Shelf, "it is clear, were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law." 3 0 In the same case, the Court also noted that a rule that is conventional in origin can pass into the general corpus of international law and be accepted as such by the opinio juris and thus "become binding even for countries which had never, and do not, become parties to the Convention"; and added that this "constitutes indeed one of the recognized methods by which new ' rules of customary international law may be formed."' 3 It is this process that came to fruition at the Third Conference on the Law of the Sea. In a case decided at the beginning of the Conference, the International Court of Justice stated that it was premature to examine the proposals submitted to the Third United Nations Conference on the Law of the Sea, as they "must be regarded as manifestations of the views and opinions of individual States and as vehicles of their aspirations, rather than expressing principles of existing law"; the Court added that it cannot "anticipate the law before the legislator has laid it down." 3 2 In a later case, however, decided when the drafting of the new Convention was far advanced, but the Convention was not yet signed, the Court stated that even if the parties had not asked it, in the special agreement submitting the case to the Court, to base its decision on "the new accepted trends in the Third Conference on the Law of the Sea" it would have taken proprio motu account of the progress made by the Conference. The Court explained that "it could not ignore any provision of the draft convention if it came to the conclusion that the content of such provision is binding upon all members of the international community because it embodies or crystallizes a preexisting 33 or emergent rule of customary law." The Court is thus willing to pay attention not only to a text that has codified preexisting piinciples of customary international law, but also to one that has crystallized an "emergent rule of customary law." It seems, therefore, that once a consensus is reached at an international conference, a rule of customary international law can emerge without having to wait for the signature of the convention. 30. North Sea Continental Shelf Cases (Fed. Rep. of Ger. v. Den. and Neth.), 1969 I.Cj. 3, 39. 31. Id at 41. 32. Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.C.J. 3, 23-24. 33. Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), 1982 I.CJ. 18, 38.

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Once a convention is signed by a vast majority of the international community, its stature as customary international law is thereby strengthened, as such signatures are a clear evidence of an opinio juris that the convention contains generally acceptable principles. International law does not impose any formal restrictions on the means by which States may express their common will. If in the last decades of the twentieth century they should decide that consensus at a conference plus a signature by a vast majority of the participants creates a general norm of international law, this new method of creating new principles and rules of international law would thereby become a legitimate method of law creation. There is no rule of international law preventing all States assembled in conference to agree that a particular set of rules represents a satisfactory product 34 of "mutual accommodation, reasonableness and co-operation." In addition, States may be willing to accept these rules as binding on them from the very moment of their adoption. Whether States are willing actually to accept the last ,proposition depends on the circumstances of the case, and very often the agreement on the immediate acceptance of the rule as customary law is more implicit than explicit. If a sufficient number of States having a special interest in the application of a new rule start acting in accordance with it, and no States object to it, there is a clear presumption that the rule agreed on at the conference, although the agreement has not yet been ratified, has become an accepted rule of customary international law. In its statement on the U.S. Ocean Policy, issued in March 1983, the United States has gone quite far in the direction of accepting all the provisions of the Law of the Sea Convention, except those relating to deep seabed mining. President Reagan pointed out that the Convention "contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states." President Reagan also announced that the United States "is prepared to accept and act in accordance with the balance of interests" thus achieved, and that it "will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are '3 5 recognized by such coastal states." 34. Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.CJ. 3, 23. 35. President Reagan's "United States Ocean Policy" statement was issued on March 10, 1983, and accompanied Presidential Proclamation 5030 on the "Exclusive Economic Zone." For the text of President Reagan's statement, see 83 U.S. DEP'T OF STATE B., No. 2075, at 70

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Thus, there is an agreement between the signatories to the Convention and the United States that most of the provisions of the Convention have become customary international law. The United States' refusal to accept the deep seabed mining part of the Convention does not prevent even that part from becoming customary international law, in full or in part (e.g., distinguishing between certain general principles and various institutional and administrative provisions). The only effect of the United States' refusal to join consensus on this part of the Convention is that the rules contained in this part, and in this part only, cannot bind the United States. As the International Court of Justice has noted in several cases, if a State has consistently opposed from the beginning an emerging rule of customary law, that rule, although generally applicable, does not apply to the protesting State.3 6 This is a small price to pay for this tremendous step forward in the process of the formation of new international law that has been pioneered by the Law of the Sea Conference. Some have already said that this Conference is as important as the Conference at San Francisco that created the United Nations. While I would not go so far, I agree that this Conference is likely to go down in history as the most important event in the process of development of a viable international law.

(1983); 1 U.N. Law of the Sea B. 80 (1983); 22 I.L.M. 464 (1983). For the text of the proclamation, see Proclamation No. 5030, 3 C.F.R. 22-23 (1984). 36. Thus, in the Fisheries Case (U.K. v. Nor.), 1951 I.CJ. 116, the International Court of Justice noted that Norway had consistently objected to the 10-mile limit on straight lines closing bays to foreign fishing that was included in the 1882 North Sea Fisheries Convention and that the United Kingdom could not, therefore, invoke that limit against Norway. Id. at 131, 139. In the Asylum Case (Col. v. Peru), 1950 I.CJ. 266, the Court also applied this principle to a regional rule of customary international law and decided that the regional rule could not be invoked against Peru, which had repudiated it by refraining from ratifying the conventions that were the basis for that rule. Id. at 277-78. The Court confirmed this principle further in the North Sea Continental Shelf Cases (Fed. Rep. of Ger. v. Den. and Neth.), 1969 I.CJ. 3. In that decision, the Court noted that the delimitation rule in the 1958 Convention on the Continental Shelf did not become binding on the Federal Republic of Germany as customary international law because it clearly reserved its position on the subject as soon as that rule was applied in North Sea delimitations. Id. at 18-19, 27.