50 Cf. e.g. Habermas, supra note 11, at 210 et seq.
51 Hans Kelsen, Reine Rechtslehre (2nd ed. 1960) at 228; and cf. Theodor Schilling, Rang und Geltung von Normen in gestuften Rechtsordnungen (1994) at 164 with further references. — As will become apparent, this article is based loosely on Kelsen's Pure Theory of Law in which Kelsen set out to elucidate the structure of law, to „unveil its object“ (Hans Kelsen, General Theory of Law and State (1961) at xvi). According to Catherine Richmond, Preserving the Identity Crisis: Autonomy, System and Sovereignty in European Law, 16 Law and Philosophy 377 (1997) at 420, „Kelsen hoped always to ,unveil‘ reality“.
52 Kelsen, supra note 51, at 339. On the Grundnorm of customary legal systems in general cf. ibid. at 231-2.
53 Hans Kelsen, Principles of International Law (1952) 418.
54 On this concept, cf. text at and after infra note 72.
55 In a civil law system, it is not self-evident that case-law is one of the mechanisms of law-making within the Grundnorm; rather, it is arguable that a judicial decision which has no basis in the applicable law and finally in the Grundnorm automatically constitutes a revolution. But such an argument is simplistic. Every legal system that provides for final judicial decisions by that very fact contains an "error calculus" i.e. a positive provision making it possible in law to consider as law decisions which could otherwise not be so considered because they are incompatible with other substantive or adjective provisions. On this calculus cf. Adolf Merkl, Die Lehre von der Rechtskraft, entwickelt aus dem Rechtsbegriff (1923) at 293 et seq.; Schilling, supra n. 51, at 583-4. And cf., for a common law view, Joseph Raz, The Concept of a Legal System (1980) at 195: „Primary organs may not only act on previously existing laws, they may sometimes create new laws and apply them.“
56 But see the discussion on the relationship between the constitutions of Member States and of the European Union, e.g. Theodor Schilling, The European Court of Justice's Revolution: Its Effects and the Conditions for its Consummation. What Europe can learn from Fiji, ELRev 445 (2002); Mattias Kumm, The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty, 11 ELJ 262 (2005).
57 That has been expressed in this way that in the case of international law no a priori can convince a priori: Fischer-Lescano, supra note 44 at 724, with reference to Ulrich Fastenrath, Lücken im Völkerrecht. Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (1990) at 32 et seq.
58 By posited law I understand law made in a well-regulated procedure by a competent authority, e.g. a constitution laid down by a constitutional convention, or statute law enacted by the legislature, or statutory instruments or presidential directives issued by an administrative authority. — It is interesting to see that there is in English i.e. the language of the common law no self-evident term generally to describe that kind of law, in contrast to languages of the civil law in which the terms „gesetztes Recht“ and „droit posé“ need no explanation. A reason might be that the common law is preoccupied with the rôle of judges in the making of the law whereas for the civil law, the rôle of the different legislatures is in the foreground. Stressing the rôle of judges is apt, of course, to blur the differences between the sources of law applied by them. In any case, it appears plausible that a full account of the law must take in view both aspects.
59 Interestingly, Francisco Orrego-Vicuña, Law Making in a Global Society: Does Consent still matter? in Internationale Gemeinschaft und Menschenrechte. Festschrift für Georg Ress 191 (Jürgen Bröhmer et al., eds, 2005), discusses under the title quoted exclusively treaties and secondary law of international organizations.
60 René-Jean Dupuy, Coutume sage et coutume sauvage, in La communauté internationale. Mélanges offerts à Charles Rousseau 75 (1974).
61 Cf. e.g. M. Cherif Bassiouni, A Functional Approach to General Principles of International Law, 11 Michigan J Int'l L 768 (1990) at 768-9: „when a custom is not evidenced by sufficient or consistent practice, or when States express opinio juris without any supportive practice, these manifestations ... may possibly be considered to be expressions of a given principle“.
62 Weil, supra note 8, at 179: „Entre la coutume coutumière d'hier et la coutume new look d'aujourd'hui il n'est plus guère de commun que le nom“; Robert Y. Jennings, The Identification of International Law, in International Law: Teaching and Practice Bin Cheng (ed.), 3 (1982) at 5: „most of what we perversely persist in calling customary international law is not only not customary law; it does not even faintly resemble a customary law”. — The following draws heavily on Theodor Schilling, Völkerkonsensrecht, in Festschrift Ress, supra note 59, 235.
63 Hans Kelsen, Introduction to the Problems of Legal Theory (Bonnie Litschewski Paulson & Stanley L. Paulson, transl.) 108 (1992).
64 Kelsen, supra note 51, at 231 (my translation).
65 Cf. e.g. ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 94 (1986), para. 183, with further references. And cf. Eyal Benvenisti, Customary International Law as a Judicial Tool for promoting Efficiency, in The Impact of International Law on International Cooperation 85 (Eyal Benvenisti & Moshe Hirsch, Eds, 2004) at note 12: „[G]eneral and consistent state practice — the necessary component for constituting customary international law — will develop if, and only if, such practice is efficient from the perspectives of most of the governments taking part in the process“.
66 Cf. John Rawls, A Theory of Justice (1971) at 251 et seq.
68 Immanuel Kant, To Perpetual Peace. A Philosophical Sketch (1795), in idem, Perpetual Peace and other essays on Politics, History and Morals (Ted Humphrey, transl.) 107 (1983) at 132 = Ak:VIII:343, 377.
69 This narrow concept of customary law should be able to withstand the attacks of Martti Koskenniemi, The Normative Force of Habit, Fin YB Int´l L 77 (1990) at 91 et seq.: not everything one State does becomes cutsomary law but only something the States do for some time.
70 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), ICJ Reports 3 (1969) at 44, para. 77, states: „There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by a sense of legal duty.” And cf. Maurice H. Mendelson, The Formation of Customary International Law, 272 RdC 155 (1999) at 272-3.
71 Similarly C.J.H. van Hoof, Rethinking the Sources of International Law (1983) at 106 et seq.; contra: the prevailing doctrine; cf. e.g. Report of the ILC to the General Assembly, YILC 1950, Vol. II, p. 368 et seq.
72 Cf. Weil, supra note 8, at 178: „la coutume perd son caractère traditionnelle de droit «spontané» pour se rapprocher ... du droit «posé»“.
73 The term is also used, with a slightly different meaning, by Richard A. Falk, On the Quasi-Legislative Competence of the General Assembly, 60 AJIL 782 (1966), and by Anthony D'Amato, On Consensus, 8 Canadian YBIL 104 (1970). Reservations against the term (but not against the subject) by Mendelson, supra note 70, at 387.
74 Cf. Pierre-Marie Dupuy, L'unité de l'ordre juridique internationale, Cours général de droit international public, 297 RdC 9 (2002) at 278.
75 ECtHR, Christine Goodwin v. United Kingdom, appl. no. 28957/95, judgment of Jul 11, 2002, paras 84-5. Cf. also HRC, Judge v. Canada, comm. no. 829/1998, views of Oct 20, 2003, para. 10.3.
76 Eduardo Jiménez de Aréchaga, International Law in the Past Third of a Century, 159 RdC 1 (1978 I), at 20, referring to ICJ, Fisheries Jurisdiction Case (Merits) (United Kingdom v. Iceland), ICJ Reports 3 (1974) at 23. Koskenniemi, supra note 69, at 110, notes however that this „did not imply an unequivocal view in favour of the custom-forming effect of ,pure' consensus”.
77 This becomes particularly clear when Mendelson, supra note 70, at 290 and passim, considers the acceptance by a State of a rule of international customary law as sufficient for considering that State as being bound by that rule, and when according to Frederic Lee Kirgis, Jr., Custom on a Sliding Scale, 81 AJIL 146 (1987) at 149, a clearly demonstrated opinio juris suffices for the emergence of customary law even in the absence of any State practice.
78 Reproduced and discussed by Jerzi Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties. A Critical Appraisal, Supplementum 3 Österreichische Zeitschrift für öffentliches Recht (1974) at 99-100, with further references.
79 Dupuy, supra note 74, at 178. More narrowly, according to the definition in note 1 to Article IX of the WTO Agreement, there is consensus „if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision“.
80 The requirements for the emergence of traditional customary law are similar: here, an „extensive practice” is required, which also has to be „representative”; cf. the discussion by Mendelson, supra note 70, at 218 et seq., who, however, ibid., at 387, more stringently accepts resolutions of the United Nations General Assembly as customary law only if there is „clear commitment and unanimity – or perhaps something very close to it”.
81 Cf. Bassiouni, supra note 61, at 768-9. Bruno Simma, International Human Rights and General International Law: A Comparative Analysis, in IV 2 Collected Courses of the Academy of European Law 153 (1995) at 219, speaks in this context of a „self-contained exercise in rhetoric“.
82 Quoted from David Remnick, Hearts and Minds, The New Yorker, May 17th, 2004, p. 27. Even if there is an arguable claim that „our [the U.S.] government decided to change this country from a nation that officially does not torture to one, officially, that does“ (thus Mark Danner, What Are You Going to Do with That?, LII/11 The New York Review of Books, 52 (Jun 23, 2005) at 55), this does not diminish the value of the presidential statement for the emergence of consensus law. Cf. also the verbal acts cited in infra note 149.
83 An in-depth discussion of the possible legal effects of such resolutions is in Mendelson, supra note 70, at 347 et seq.; Final Report of the International Law Association's Committee on Formation of Customary (General) International Law (London Conference (2000)), Statement of Principles Applicable to the Formation of General Customary International Law, available at http://www.ila-hq.org/pdf/CustomaryLaw.pdf, visited Jan 14, 2005, at 55-65.
84 of Sept 12, 2001.
85 Dupuy, supra note 74, at 467-8.
86 Report on para. 2 of Security Council res. 808 (1993), unanimously approved by Security Council res. 827 (1993). The statement contained in this report in turn was approved by ICJ, Legality of the Use by A State of Nuclear Weapons in Armed Conflict, ICJ Rep. 1996 (I), at 258, para. 81.
87 International Law Association Committee, supra note 83 at 50-4.
88 Ibid. at 47-8.
89 Even so, the question of classification is in first line a systemic question. Wrong systematics prevent asking the correct questions and thereby giving correct answers. In particular, the question as to the coming into being of rules of coutume sauvage cannot be answered correctly if those rules are not attributed to the correct source.
91 Gunther Teubner, Globale Bukowina. Zur Emergenz eines transnationalen Rechtspluralismus, 15 Rechtshistorisches Journal 255 (1996).
92 Gunther Teubner, Privatregimes: Neo-spontanes Recht und duale Sozialverfassungen in der Weltgesellschaft in Zur Autonomie des Individuums. Festschrift für Spiros Simitis 437 (Simon & Weiss, eds., 2000) at 444. Something similar to such a creation of international law by invocation has been accepted by ICJ, Case concerning The Arrest Warrant of 11 April 2000 (Democrativ Republic of the Congo v. Belgium), judgment of Feb 14, 2002, diss. op. van den Wyngaert, paras 27-8: „the opinion of civil society ... cannot be completely discounted in the formation of customary international law today“.
93 W. Michael Reisman, The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making (R. Wolfrum & V. Röben (eds.) Max -Planck-Institut für ausländisches öffentliches Recht und Völkerrecht) 15 (2005), at 23-4, who calls this law, „for convenience, ,media-made law'“. Cf. also Fischer-Lescano, supra note 44, at 750 et seq.
94 An overview over very different types of such law is given by Klaus Günther, Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory, available at http://www.law.nyu.edu/clppt/program2003/readings/gunther.pdf., visited Mar 2, 2005, pp. 3-8, who speaks of „Juristenrecht“.
95 Cf. Dupuy, supra note 74, at 418 et seq.
96 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti Personnel Mines and on Their Destruction, Sep. 18/ Dec. 3, 1997, 36 ILM 1509 (1997).
97 A/CONF183/9 of Jul 17, 1998, corrected by procès-verbaux of Nov 10, 1998, Jul 12, 1999, Nov 30, 1999, 8 May 2000, Jan 17, 2001 and Jan 16, 2002.
98 Cf. e.g. Andreas Fischer-Lescano, Globalverfassung: Los Desaparecidos und das Paradox der Menschenrechte, 23 Zeitschrift für Rechtssoziologie 217 (2002) 228-35.
99 In Forti v. Suarez-Mason, 694 F.Supp. 707, N.D.Cal.,1988, Jul 06, 1988, at 710, the District Court states: „The legal scholars whose declarations have been submitted in connection with this Motion are in agreement that there is universal consensus as to the two essential elements of a claim for ,disappearance‘. In Professor Franck's words:
The international community has also reached a consensus on the definition of a ,disappearance‘. It has two essential elements: (a) abduction by a state official or by persons acting under state approval or authority; and (b) refusal by the state to acknowledge the abduction and detention.
[quotations omitted] Plaintiffs cite numerous international legal authorities which support the assertion that ,disappearance‘ is a universally recognized wrong under the law of nations. For example, United Nations General Assembly Resolution 33/173 recognizes ,disappearance‘ as violative of many of the rights recognized in the Universal Declaration of Human Rights, G.A. Res. 217 A (III), adopted by the United Nations General Assembly, Dec. 10, 1948, U.N. Doc. A/810 (1948)“. This appears to indicate that, in the court's opinion, a transformation in consensus law had taken place.
100 Van den Wyngaert, supra note 92, para. 27-8, comes close to such a view: „Advocacy organizations ... have taken clear positions on the subject of international accountability. This may be seen as the opinion of the civil society, an opinion that cannot be completely discounted in the formation of customary international law today ... The Court fails to achnowledge this development, and does not discuss the relevant sources.“ (the judge's italics). And cf. Peter Hulsroj, Three Sources – No River. A Hard Look at the Sources of Public International Law with Particular Emphasis on Custom and ,General Principles of Law’, 54 Zeitschrift für Öffentliches Recht 219 (1999) at 248: „every actor on the international law scene is relevant”. Similarly, according to Dupuy, supra note 74, at 422, international law must take into account the opinio juris of the international civil society.
101 It is not new as such. Rather, it resembles the so-called Juristenrecht developed in German universities during the nineteenth century. But it is important to note that that law was a law by academic lawyers for academic lawyers and not necessarily applied by any court. In the end, of course, it was ratified by the legislature and became the Civil Code (Bürgerliches Gesetzbuch).
102 As appears to be implied by Reisman, supra note 93, at 22: „The political decision maker, whether operating in a democratic system which requires responsiveness to constituencies, or in an authoritarian system which reduces but does not eliminate the need for such responsiveness, can no longer ignore this dynamic form of law-making. This is the imperative version of what is presented as right that appears in editorials of the leading newspapers, is repeated relentlessly in the visual and audial media and that comes to be reflected in popular expectations. Those expectations, in turn, are recorded in incessant opinion polls which are then checked regularly by nervous decision-makers and their ,spin-meisters.‘ Since I view the lawyer's task as seeking to understand in order to influence decision, I cannot exclude this corollary process from a meaningful conception of international law.“
103 Cf. Theodor Schilling, On the Value of a Pluralistic Concept of Legal Orders for the Understanding of the Relation between the Legal Orders of the European Union and its Member States, 83 Archives for Philosophy of Law and Social Philosophy (ARSP) 568 (1997) at 573-4 with further references; similarly, Fischer-Lescano & Teubner, supra note 28, at 1968: „Each conflict can only be settled within the context of its own entanglement“. The proposal of Günther, supra note 94, pp. 13-7, to take the internal view of a „universal code of legality“, while fascinating, disregards the fact that courts are acting within the positive legal system under which they have been set up or, put differently, under their specific terms of reference, which is (are) distinct, and different, from that code.
104 Cf. e.g. Fischer-Lescano, supra note 44, at 737, who claims that the center of the legal system is the court organization and its periphery all other sectors of the system i.e. States, NGOs and other actors of civil society, referring to Stefan Oeter, International Law and General Systems Theory, 44 GYIL 72 (2001) at 73 et seq.
106 This is overlooked by Fischer-Lescano, supra note 98, 232-3, who considers not only the supranational bodies but also national courts, ad hoc tribunals und regional human rights courts as „global organs of judicature“.
107 Cf. e.g. Fischer-Lescano, supra note 44, at 739.
108 Published in 16 HRLJ 422 (1995). A further example, picked at random, are Comité pour l'élimination de la discrimination raciale, Soixante-sixième session, 21 février - 11 mars 2005, examen des rapports présentés par les Etats parties conformement a l'article 9 de la convention, Observations finales du Comité pour l'Élimination de la Discrimination Raciale, CERD/C/LUX/CO/13, para. 16.
109 Cf. supra note 18.
110 Italian Supreme Court (Corte di Cassazione), Ferrini v. Federal Republic of Germany (Cass. Sez. Un. 5044/04), 87 Rivista di diritto internazionale 539 (2004), also available at http://www.ordineavvocatifrosinone.it/home/sentenze/04-comun1.htm, visited Apr 5, 2004.
111 In this sense, Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AJIL 119 (2005) 127 notes that „[t]he [HRC] will probably face an uphill struggle in seeking to implement its views on the extraterritorial application of the ICCPR“.
112 Quoted supra note 99.
113 Whether the court was correct in so holding is a different question without relevance in the present context. On this question cf. e.g. Fischer-Lescano,