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NEW YORK, November 13, 2015 (C-Fam) New UN guidelines to identify customary international law threaten to unleash a barrage of litigation and judicial activism around the world.

A draft set of principles to identify what is customary international law has been presented to the General Assembly by the International Law Commission. In it’s recommendations, the Commission appears to lower the bar in determining what qualifies as customary international law.

A binding customary international norm exists when a certain practice is universally engaged in by states and done so as a legal obligation. The customary norm can bind countries even in the absence of a treaty. Piracy, for example, was recognized as a violation of customary international law even before there was a treaty forbidding it.

Identifying such norms has always been understood as a very difficult endeavor, and one to be undertaken sparingly, even as claims of customary international law have multiplied.

On the surface the new guidelines adopt a traditional approach to the identification of new international norms. They require the same two-step process to identify new norms, that is, the general practice of states and the understanding of legal obligation. But the guidelines change this and have made the practice requirement fairly easy to meet. Simply put, they seem to have dropped the number of states needed to show general or universal state practice.

Instead of requiring near universal, if not universal, practice from states, as many believe the case should be, the commission only asks that state practice be “sufficiently widespread and representative” following the lead of the International Court of Justice.

Even the current progressive U.S. administration took issue with this approach, and told the commission that “strict requirements for extensive and virtually uniform practice of States, including specially affected States” should qualify the current wording in the draft.

The U.S. also complained about the overall “tenor” of the rules, and the possibility that they could be “misleading,” disagreeing that non-binding resolutions and other acts of international organizations, such as the UN, should be given much weight as evidence of new customary law.

“By inviting readers to find evidence of customary international law in a wide variety of sources,” the U.S. said, the guidelines may suggest that customary international law is “easily created or inferred.”

Several delegations echoed these concerns about using non-binding resolution and foreign judicial decisions to establish new customary norms.

The draft also expands the areas of law subject to customary rule making.

The principles would apply equally to all areas of international law, both those dealing with relations between states that have traditionally been associated with customary international norms, such as border disputes, the law of the sea, and consular relations, as well as areas of international law where claims of customary international law have been made in recent decades but have been received with skepticism and are less settled, such as human rights law.

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Efforts have been underway for several decades to lower the bar to identify customary international law, usually failing because of concerns about abuse and frivolity. The guidelines from the International Law Commission once again raise the specter of unscrupulous lawsuits and judicial overreach to establish new international obligations, including a human right to abortion.

The draft principles, emanating from one of the most authoritative bodies on international law, perhaps second only to the International Court of Justice, purports to settle widespread questions about what is undoubtedly the most unsettled area of international law, and their likely influence cannot be understated.

The 16 principles so far identified by the commission were ostensibly drafted to assist lawyers and judges in asserting and adjudicating claims about customary international law.

The next step of the project is creating detailed explanatory notes for each principle by next summer, when the commission is expected to finalize the guidelines.

Reprinted with permission from C-Fam.


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