Toward an Econometric Model of Guzman's Theory of Customary International Law

By Luby, Ryan | American Economist, Fall 2011 | Go to article overview

Toward an Econometric Model of Guzman's Theory of Customary International Law


Luby, Ryan, American Economist


I. Introduction

Article 38 of The Statute of the International Court of Justice (ICJ) lists four primary sources of international law: treaties, custom, "the general principles of law recognized by civilized nations," and--as per Article 59's requirements--"the teachings of the most highly qualified publicists of the various nations" (Damrosch 2001a). Contemporary international legal debate primarily concerns one of these sources: customary international law (Goldsmith and Bradley 1997; Guzman 2006). According to traditional definitions, an international norm must fulfill two requirements to qualify as customary international law: widespread state practice and opinio juris--i.e., a feeling of legal obligation (Damrosch 2001b). Recently, the United States' foreign policy has ignited debate concerning the jurisdiction and effectiveness of customary international law (CIL) in regulating states' actions (Byers 2002; Bergquist & Weissbrodt 2006; Elsea 2007). Scholars who challenge CIL's validity most frequently emphasize Article 2(4) of the United Nations (UN) Charter--an international norm regarded as CIL--which outlaws the use of force in international relations: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state" (Damrosch 2001a). Critics--both those who consider the United States in violation of international law and those who consider the United States' actions within its legal prerogative--have proposed cogent and defensible arguments (King 2003; Katzman 2008). At issue in this debate are two fundamental questions: first, is customary international law "law"? That is, does CIL limit and structure decisions in a manner akin to domestic law? Second, if CIL is in fact "law," how do states punish its violations? While considerable scholarship concerns the former--a portion of which I briefly summarize below--the following econometric model primarily addresses the latter query, helping to explain if and how states punish violations of CIL.

II. Background & Literature Review

Paquete Habana; The Lola, a Supreme Court case during the Spanish-American War involving Spanish colonial possessions, first codified tenets of CIL within the jurisdiction of the United States' courts. In 1898, the United States implemented a naval blockade around Cuba's major ports and seized two fishing vessels--the Paquete Habana and the Lola--as prizes of war. The vessels' owners argued that the Navy's seizure of their boats violated CIL. In its famous opinion, the Supreme Court sided with the Cuban fishermen, declaring CIL as "part of our [U.S.] law":

By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war (Damrosch 2001b: 63).

In a 1997 Harvard Law Review article, Goldsmith and Bradley challenged The Paquete Habana's treatment of CIL. Goldsmith and Bradley argue that the Supreme Court's adoption of CIL conflicts with "representative democracy ... separation of powers, and federalism" (Goldsmith and Bradley 2007: 821). Moreover they argue that CIL, neither created in Congress nor promulgated by elected representatives, conflicts with America's democratic identity. However, a 2004 Supreme Court Case, Sosa v. Alvarez-Machain (Sosa), rejected Goldsmith's and Bradley's argument. In Sosa, the Supreme Court's opinion acknowledges "a transcendental body of law [CIL] outside of any particular State but obligatory within it unless and until changed by statute" (U.S. Supreme Court 2004). The Supreme Court's opinions in the Paquete Habana and Sosa answer the first question posed in the introduction: legally, in the United States, CIL applies as federal law. …

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