8 State Practices

Prof. Ruchika Rao

1.  Introduction

State practice or the behavior of states has a key role to play in international law. In the multifaceted nature of the structure of international law, state practice becomes a key element, particularly in our understanding of, and the formulation of the principles of customary international law which is one of the primary sources of international law-both generally and under the ICJ statute. The weight accorded to state practice relies on the legal conviction and acceptance of such practice in the international community as being lawful behavior.

Customary international law may be understood to have two components, namely opinio juris and state practice. Where the two phrases carry distinct connotations, they are inextricably linked and state practice cannot be understood without drawing context from opinion juris. The recent ICJ judgement in the case of Jurisdictional Immunities of the State (Germany v Italy) ([2012] ICJ Rep 99) observed that in the facts of the case, “State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention”. Essentially, the practice must be general (consistent, sufficiently widespread and representative of political intent), and accompanied by a recognition that a rule of law or legal obligation is involved.

Learning Outcomes:

1. To understand how State Practice constitutes as a source of International Law.
2. To learn about the manner in which assessment of State Practice is done and what are the forms of State Practice.
3. To find out the primary and secondary sources which embody State Practice as per norms of international law.

Art. 38(1)(b) of the Statute of the International Court of Justice refers to ‘international custom, as evidence of a general practice accepted as law’. The primary subjects of the international legal system are States, and therefore, the phrase ‘general practice’ is understood to refer to State practice, also known as the ‘material’ or ‘objective’ element of customary international law. Opinioiuris constitutes the other key element which is more subjective and theoretical and grounded in the conviction that the practice is required, prohibited, or allowed by international law. Thus, the practice of States is vital in identifying and laying down the rules of customary international law. State practice in this context must be distinguished from a related area of international law where the expression may also be used which is the application or observance of treaty obligations under the law of treaties.

In 2016 the International Law Commission (ILC) adopted a set of 16 ‘draft conclusions’ (the role of the ILC is addressed in a separate module), with commentaries, on the identification of customary international law. These draft conclusion identify inter alia that, “the requirement, as a constituent element of customary international law, of a general practice means that it is primarily the practice of States that contributes to the formation, or expression, of rules of customary international law”.

Since States can ‘act’ in various ways when engaging with other state and non-state actors, State practice takes many forms. No one manner of practice can be considered to be more important than any other and how and where we look for as State practice (or what would constitute sufficiently general State practice) can vary depending on the particular context and area of engagement. In any case, to qualify as State practice, the behaviour being considered must be ‘of the State’, that is, attributable to it.

Collecting and identifying patterns in the behavior of states which is a prerequisite for crystallising enforceable rules of customary international law can be a complex and difficult task especially in an international community with a little under 200 states. Finding primary sources indicative of a state’s consistent practice on a certain issue can be an onerous task. Where opinio juris can be discerned from various pronouncements and orders, both domestic or on international forums, only a few States document or publicize material pertaining to their practice in the field of international law. Reliance can be placed on publications of authorities, most highly qualified publicists and objective and thorough research of scientific institutions.

2.  Forms and Assessment of State Practice

It has been asserted by some academics that State practice can only comprise of the actual behavior of states and not articulations or expressions of political intent. It is not unheard of for a State to be deeply involved in the drafting of an international treaty and have for it to abstain from ratifying the same. For the most part however, verbal conduct (oral or written) has also been understood as a vital indicator of state practice because the alternative view imposes too many constraints on the concept of state practice. For example, a state action in some situations may involve only a statement issued by a functionary whether in the form of a response or in support or in protest for a certain development. This broad approach allows access to a far more diverse body of material which comprises of what states do and what they say and how they respond after looking at all relevant circumstances.

Furthermore, if a State acts unlawfully but attempts to justify what it has done (or not done) with a legal argument, such a statement could have more legal significance (in terms of preserving or reinforcing the law) than the action itself.

Abundant caution must be exercised when locating State Practice in what states have said, specifically in differentiating between justifications based in law and justifications based in politics. All words, official statements and assertions must be subjected to a certain amount of professional interpretation.

Given the swiftness of change in the world, both political and technological, it is difficult to homogenise the many forms of identifiable state practice. Some are easier to discern than others. All formal actions by Sovereign functionaries or branches of the government, whether executive, legislative or judicial can be understood to be evidence of state practice. Actions of other actors when acting as agents of the state or on behalf of the state can also be considered as State practice provided that the acts have been undertaken on behalf of the state. Such behavior would not be limited to the acts of a State in relation to other States. Practice of States concerning the treatment of individuals, citizens whether external or even internally could be relevant to international law and would therefore become relevant when identifying State Practice. According to Oppenheim, the practice of States embraces not only their external conduct with each other, but is also evidenced by such internal matters as their domestic legislation, judicial decisions, diplomatic dispatches, internal government memoranda, and ministerial statements in Parliaments and elsewhere.

The International Law Commission’s 2016 draft conclusions on the identification of customary international law indicate that ‘forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct ‘on the ground’; legislative and administrative acts; and decisions of national courts’. This enumeration is not intended to be exhaustive and every element identified should be interpreted broadly and not in a restrictive manner.

The ‘operational conduct’ of states or the conduct of states ‘on the ground’ implies actions which constitute actual assertions of sovereignty such as passage over territory, impounding of fishing boats, passage of ships in international waterways, and behavior on the battlefield or in a state of war. Such actions would need to be documented in some reliable manner for them to be used as the basis for identifying state practice. Evidence can then be collected in many different ways including but not limited to, results of inquiries conducted after the happening of an event like an armed conflict. It is essential that the source must be reliable and unequivocal, and should reflect the consistent position of the State concerned. Due consideration must be given to all available evidence of practice of a particular State, which should then be evaluated collectively especially when there appears to be some lack of consistency in the behavior of a state vis-à-vis a certain issue or point of law and such variation would dilute the relevance of that practice.

The structure of domestic laws in place in a nation-whether it is under their constitution, legislative enactments or administrative orders would also serve as evidence of State practice. Such provisions should not be understood in a vacuum and should be examined in the context of their interpretation and application by both judicial and executive organs.

The International Court of Justice has also accepted decisions from the Higher Judiciary of a country as constituting state practice but has observed that the weightage accorded to such decisions should be mindful of the fact that they are placed in a domestic or municipal context and that a government or a state may not necessarily adopt the same approach on questions of law in international forums and courts. Furthermore, a decision must evaluated in the context of subsequent legislative developments and judicial application of the same in a country. A judgement could be reversed or rendered ineffective by a following enactment.

The negotiation, conclusion, and application of treaties may be or may give rise to State practice concerning either the law of treaties or the obligations assumed under a treaty. Such evidence of state practice would have to be accompanied by opinio juris on the subject and it would be important to look at whether the assumption of the treaty had merely established a written agreement on a set of rules between identified states or had actually contributed to the consolidation of custom on a point of law.

Omission or passive behavior or inaction or the part of State could also constitute State Practice but only if such restraint was deliberate and intentional. Inaction has been accepted as forming evidence of state practice when looking at state’s not misappropriating the high seas, Some rules, such as that precluding States from appropriating the high seas, indeed develop as a result of motivated inaction. Other examples of such inaction include abstaining from instituting criminal proceedings; refraining from exercising protection in favour of certain naturalized persons; and abstaining from the threat or use of force.

Other sources used to locate State practice include the formal stance taken by states in their written and oral submissions to international courts or even domestic higher judicial forums on issues pertinent to international law.

It is not necessary that States act alone. A practice could imply collective or individual action by a State or by a group of States aligned on an issue within international organisations like the United Nations and its various agencies or on slightly less formal groupings like the G8, the Non-Alignment Movement. Oppenheim has said, “the concentration of state practice now developed and displayed in international organisations and the collective decisions and the activities of the organisations themselves may be valuable evidence of general practice accepted as law in the fields in which those organisations operate”. It is important however, to differentiate between political posturing and legal intent. Representations made by states in debates on international forums like the United Nations General Assembly, Security Council and statements made in letters to UN organs and agencies, or written comments on various issues to organisations such as the ILC would also constitute elements of state practice. State Practice may also include within its ambit acts of international legal personalities such as the European Union or the United Nations or the Security Council.

The task of discerning and identifying State Practice is a complex one. Its evidence is frequently inconsistent, scattered and hard to locate. Furthermore, Governments don’t always maintain their stance on key issues and may choose to keep their actions under wraps without inviting the scrutiny of the international community, keeping their dealings confidential. At the same time, a practice known among only some or even two States may contribute to particular customary international law, that is, customary rules that apply only among a limited number of States.

3.  Digests and Other Works Embodying State Practice

The practice of States in the field of international law can be found in a wide range of primary and secondary sources. Primary sources include diplomatic correspondence, and the proceedings of international organizations and national parliaments. Monographs and articles like national and regional studies, documentation and reports undertaken or commissioned by Governments and International organisations contain valuable information about State practice and serve as secondary sources, as do the work of scientific institutions, such as the International Law Commission, the Institut de Droit International, and the International Law Association (ILA), and reliable news services, such as Keesings and Reuters.

Beginning in the 19th century, certain States have published official collections of their practice in the field of public international law, often termed ‘digests’. In certain areas of international law, publication of practice takes place on a collective and multilateral basis, at both an international and a regional level(through organisations like the United Nations and the Council of Europe)

The United Nations has published various collections of legislative and other texts, often in connection with topics on the agenda of the ILC, to make State practice more easily identifiable. The United Nations Legislative Series, which began in 1951, runs to many volumes, including aspects of the law of the sea, diplomatic and consular privileges and immunities, State succession in treaties, State succession in other matters than treaties, the law of treaties, and State immunity. Most treaties may be found in the United Nations Treaty Series, the League of Nations Treaty Series, and the Consolidated Treaty Series, as well as in national treaty series.

Since 1945, efforts have been made internationally to encourage States to make their practice available and even, to a degree, to standardize such publications. The drafters of the Statute of the International Law Commission had very much in mind the need for greater accessibility to the practice of States. Art. 24 of the Statute of the International Law Commission provide that: “The Commission shall consider ways and means for making the evidence of customary international law more readily available, such as the collection and publication of documents concerning State practice and of the decisions of national and international courts and on questions of international law, and shall make a report to the General Assembly on this matter.”

In accordance with this provision, the Commission considered the item ‘Ways and Means for Making the Evidence of Customary International Law More Readily Available’ at its first and second sessions in 1949 and 1950. The UN Secretariat produced a valuable memorandum (A/CN.4/6). The Commission made a number of recommendations in a 1950 report to the UN General Assembly, including that the General Assembly call to the attention of States the desirability of their publishing digests of their diplomatic correspondence and other materials relating to international law. Returning to this issue in 2016 as part of its work on the topic ‘Identification of customary international law’, the Commission has asked its Secretariat to prepare a new memorandum on ways and means for making the evidence of customary international law more readily available, which would survey the present state of the evidence of customary international law and make suggestions for its improvement.

There are specific fields of international law that have seen the publication of relevant and important material consolidating State practice. For example, the International Committee of the Red Cross (ICRC) in 2004 published a Customary International Humanitarian Law Study, compiling a lot of essential information and documented the acts of states and other actors in the field of humanitarian effort and law. The International Maritime Boundaries series compiles bilateral and multilateral treaties on the delimitation of maritime boundaries even though the actual state practice doesn’t. State practice in the field of human rights is often recorded by the UN thematic special rapporteurs, whose mandate may require them to consider whether a particular human rights standard has become part of customary international law.

National publications of State practice are increasing in number. Many States regard it as important for their contribution to the development of international law. They may also see it as being in their interest to do so in order to influence the development of the law. But to do so systematically requires considerable resources, and relatively few States have succeeded in sustaining publication of comprehensive material over an extended period.

It is no simple matter to provide a list of multilateral and national digests and similar publications; the following bibliography includes some of the more important national digests of State practice, as well as other publications containing the practice of States, but the list is doubtless far from complete and is subject to change. In addition, a wealth of material is also available on the websites of ministries of foreign affairs and other government departments as well as those of international organizations, but this tends to be ephemeral.

4. Conclusion

State practice as a source of international law carries within it several dichotomies. It is the ‘raw material’ of customary international law. In many ways, it creates the body of customary international law while simultaneously limiting the way we understand legal opinions when they fail to find strict adherence in their observation by states. An enquiry into understanding state practice also faces the interesting paradox of insufficient access to primary sources and evidence of state practice and at the same time, the sheer bulk of (often) inconsistent material indicating State Practice.

Evidence of State practice in the field of international law is often difficult to access and patchy. While much more is available than in earlier days (when the practice of only very few States was published systematically, usually with considerable time lapses), coverage is still limited. At the same time, the quantity of available material is daunting. The number of States has increased, and modern technology has made information far more accessible. The United Nations’ online document system, and the online document systems of other international organizations, is of great relevance. Other useful websites are too numerous to mention and are constantly changing. But there are limits to how far the search for practice can be automated; the selection and assessment of material require experience and judgment.

Academic opinion asserts that the scattered evidence of customary international law has been a powerful motivator in the movement to seek greater documentation and subsequent codification of rules and principles under international law. Proper identification of exactly what would constitute State Practice especially in the face of inconsistent behavior would be essential for successful codification and evolution of the international law regime.

Reference

• A Carty ‘Doctrine versus State Practice’ in B Fassbender and A Peters (eds) The Oxford Handbook of the History of International Law (OUP Oxford 2012) 972–96.
• J Crawford Brownlie’s Principles of Public International Law (8 edn OUP Oxford 2012).
• K WolfkeCustom in Present International Law (Kluwer Dordrecht 1993).
• MN Shaw International Law (7 edn CUP Cambridge 2014).
• R Gaebler and M Smolka-Day (eds) Sources of State Practice in International Law (Transnational Publishers Ardsley 2002).
• R Jennings and A Watts Oppenheim’s International Law vol 1 (9 edn Longman Harlow 1992) GD TriggsInternational Law: Contemporary Principles and Practices (LexisNexis Butterworths Chatswood 2006).
• I Brownlie ‘Some Problems in the Evaluation of the Practice of States as an Element of Custom’ in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz vol 1 (Editoriale Scientifica Napoli 2004) 313–18.
• AM Weisburd ‘The International Court of Justice and the Concept of State Practice’ (2009) 31 UPaJIntl L 295–372.