CYIL vol. 8 (2017)

PAVEL CABAN CYIL 8 ȍ2017Ȏ IV. The “failure to react” seems to have different significance with regard to each state involved depending on the circumstances of a specific case. The draft conclusion 10, paragraph 3 and the commentary to it are too general and do not properly reflect different types and levels of the inaction or the “failure to react” by individual states and different significance it may have for the creation of a new customary law norm. If the proposition, put forward in the Commission’s commentary, was understood literally, namely that the circumstances call for reaction when even indirect rights or interests of states are affected and that “it may well be that a certain practice would be seen as affecting all or virtually all States”, then it could mean that each and every practice which could potentially lead to the creation of a new norm of general (customary) international law (whether in an area which has not yet been regulated by international law, or, on the other hand, in an area where norms of general international law already exist) would “call for reaction” by all other states of the international community, which, failing to react, would express by their inaction their opinio iuris supporting such a practice. However, it is suggested that, in practice, this is not the case. States react to conduct of other states depending on the degree and intensity in which such practice affects their rights (interests). It can be expected that states whose rights (interests) are affected by relevant conduct or practice directly and to a significant extent, i.e. which are “specially (particularly) affected” (such as, for example, space-faring nations with regard to the creation of new norms of space law or states of certain region in the context of territorial disputes), will react, or fail to react, to such practice being aware of the significance of their (non-)action for the creation of a new customary law norm (qualified inaction). On the other hand, states which are affected by the relevant practice only indirectly or potentially may fail to react simply because of “lack of capacity, lack of interest or of awareness of the consequences of inaction”, 17 and therefore may not be aware of the legal significance of their (non-)action. The (non-)action (failue to react) of this latter category of states definitely has to be taken into account, but it is suggested that its legal significance is be different. 18 V. In addition, it may be advisable to differentiate between the failure to react to relevant practice in cases when a new norm of customary international law might be potentially created in areas which have not yet been regulated by any norm of customary international law, and cases when a potential new rule would deviate from an already established customary norm. M. N. Shaw pointed out that “the problem of one or more states seeking to dissent from recognised customs by adverse behaviour coupled with the acquiescence or non-reaction of other states remains unsettled” and that “[i]f one accepted that a failure to protest validated 17 Mr. Hmoud, Commission’s summary records, doc. A/CN.4/SR.3251 (15 May 2015), p. 10. (Mr. Hmoud adds that “[t]here might be also political motives, or the State might not be aware of the existence of the practice or of the need for a reaction, especially when its interests were not at stake or when it was under pressure not to react.”). 18 For example, as regards the acquiescence by specially affected states in the creation of a new norm of customary international law see International Law Association, London Conference (2000), Committee on Formation of Customary (General) International Law, Final report of the Committee, p. 26. (“ … it is not simply a question of how many States participate in the practice, but which States. In the words of the Court in the North Sea Continental Shelf cases, the practice must ‚includ[e] that of States whose interests are specially affected‘. (‚Practice‘ here includes acquiescence.) The criterion of representativeness has in fact a dual aspect - negative and positive. The positive aspect is that, if all major interests (‚specially affected States‘) are represented, it is not essential for a majority of States to have participated (still less a great majority, or all of them). The negative aspect is that if important actors do not accept the practice, it cannot mature into a rule of general customary law.”). See further HENCKAERTS, J.-M. and DOSWALD-BECK, L., Customary International Humanitarian Law , Volume I, Rules, Cambridge University Press, 2005, pp. xxxviii, xxxix, xli and xlii.

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