#10 - Monica Hakimi - Making Sense of Customary International Law

Hi, welcome back to your Skogans, the International Podcast. This is episode number 10. And today we are going to talk about a very interesting and pertinent issue in international, which is customary international law. And we will be talking to Professor Monica Hakemi, who is an associate dean for faculty and research. James B. Campbell, Professor at Law at Michigan University. She teaches and writes in the fields of public international law. US foreign relations law, her research tries to gather the doctrine and theory to examine how international law operates and adapts to contemporary challenges, particularly in the areas of human and national security. She currently is a contributing editor at Egyptoc and also serves as one of the editors for American Journal of International Law. Thank you so much, Professor Hakemi, for being on the podcast. It's an absolute pleasure to have you. Thank you for having me. It's delightful to be here. So today we are going to talk about your famous article, which is making a lot of rounds on the internet these days, making sense of customary international law recently been published in the Michigan Law Review. And there's also a symposium on Open Euras, which is entirely based on the article. And there are a lot of refutations, a lot of comments, trying to understand and critique Professor Hakemi's theory. So we also had a lot of fun reading your article. But before we go into the specifics, I think it's good to have an overview of your central argument or your central thesis of the entire paper. So our audience and everybody has a good context of what we're talking about. Hey, great. Well, the article is an effort to try to identify and then take down what I take to be like the main conceptual apparatus that people use when they try to analyze customary international law. And so what I say is that when people focus on customary international law, they think of it like a rule book. So it's an idea that I'm trying to refute. And this idea comes in various forms. But the basic idea is probably best reflected in positivist accounts of customary international law. And most recently in the International Law Commission's conclusions on the identification of customary international law. And as articulated there, the idea is that customary international law consists of secondary rules and primary rules and to use heart's jurisprudential typology. So the primary rules are the rules that directly regulate behavior, so the prohibition of torture, for example. And then the secondary rules are supposed to be the rules for identifying the primary rules or for resolving what the primary rules are. And as usually formulated, the sort of principle secondary rule for customary international law is that a normative position can be a primary rule of customary international law. And govern conduct can be a conduct rule. Only if there is a widespread support for it in state practice and open-year-risk. And then for example, the International Law Commission's articles or conclusions try to identify other secondary rules that further amplify on this famous two-element test. And the point of the article is to say that thinking about custom as a set of rules, by which I mean as a set of generally applicable, discernible rules such that custom applies in the same way in all circumstances of a similar type. It's sort of the wrong way to think about custom. And it's wrong because custom is actually a much more fluid and contingent kind of law than the rule book conception depicts it as. And so I spend some time in the article describing what I take to be customary international law, by which I mean the stuff that people in the real world actually treat and use and refer to as customary international law. And I don't think it reflects anything like the rule book conception that has been sort of bolstered most recently by the International Law Commission. As I said, I think it's much more contingent and variable. And so I think that matters because I think when people expect customary international law to look like a rule book, they approach it with a certain set of analytic and normative priors. They ask certain questions. They evaluate it along certain dimensions. And I think that this framework for analyzing and evaluating it is deeply misguided because it takes as a given the customary international law ought to operate in a certain way. And then it fails to account for how customary international law actually operates. So that's the basic idea. And I should just say because I get a little pushback on it. So I'll just anticipate the pushback and say, I don't deny the fact that other people describe customary international law as a rule book. So I'm not saying that this alternative description is unavailable to the contrary. I recognize that people imagine and describe customary international law in rule book terms. And I just want to say that that is not a useful way of describing it. And it's not useful because it occludes our analytic chops. It leads to a kind of legal analysis that is, in my view, misguided and not sound and not reflective of how this stuff actually works. And therefore not helpful to those who need to navigate international law's terrain. And also, it's not helpful because, as I said, it comes baked in it, our certain normative assumptions. And it leads on the whole, too, I think, the devaluation of customary international on a failure to recognize what customary international law actually can do and how it might be beneficial in the legal order. So that's sort of like the overview conceptual move I'm trying to make. Professor Kimi, I just have two small questions. And thank you so much for such an extensive overview. I think our viewers and ourselves as well will probably benefit from it greatly. So I really appreciate that. The first question that I have is that in your article and indeed in the symposium as well, you use the words that our current understanding of customary international law through the rule of conception, is not only wrong, it could indeed be pernicious or insidious. So just was wondering what your thought process was behind that. And the second question that I had stems directly from what you just mentioned as like global actors not using CIO in the way that we perceive it through the rule of conception. So then what is perhaps the way that global actors do indeed use customary international law, maybe in practice, if you could just give us some insight into that as well? Yeah, sure. So when I say that the rule of conception is not just wrong, but it's pernicious, what I mean is it's wrong. So it's not just wrong, but it is wrong. And the way in which it's wrong is that it's inaccurate. It doesn't actually describe the normative material that states and other actors engage with in the everyday practice of international law. And then your second question is, well, what do I mean by that? So let me answer that question. Then I'll come back to the point about why it's pernicious. So the reason it's wrong, as I said, is that it doesn't actually reflect what people engage with. And the way people engage with customary international law is that they don't apply it consistently in all settings. They don't use any sort of stable, generally applicable rules for identifying what it is. They advance claims that reflect their own positions. And they try to earn authority by advancing these claims and communicating to other people that their claims ought to be treated as authoritative. So I think a really good example, just to make this concrete, is the ICRC's interpretive guidance on targeted killings, which it issued in 2009. So the ICRC issued these interpretive guidance. They got a lot of attention. But the ICRC itself and the goal of the guidelines to be clear is to identify the rules that apply, mostly as a matter of customary international law, the targeted killings in mostly non-international arm conflicts, or at least conflicts involving arm non-state groups. And as I said, the guidance got a lot of attention. But the ICRC, knowing that its positions in the guidance were controversial, decided not to claim that they were necessarily customary international law, but they just reflected the ICRC's own position on what the best view of customary international law is in these circumstances. Now, since the ICRC has adopted those guidelines, many actors, including many militarily active states, do not treat them or take them to be customary international law. So in many settings, they are not treated as customary international law. But in many other settings, they are treated as customary international law. So the ICRC, of course itself, treats them as customary international law, some national prosecutors, and some militaries treat them as customary international law. So this reflects to me the way customary international law oftentimes works, which is you have a particular normative position, in this case, the normative position, as articulated by the ICRC and its guidance. And that position is, in some settings, treated as custom and in other settings not. But in the settings in which it's treated as custom, it looks exactly like customary international law. So it's not as if it's discernibly different in those settings from the stuff that people refer to as customary international law. The people call it customary international law. They use it as they do customary international law. And so to deny that it is customary international law, just because it doesn't operate like a rule. by which I mean just because it's variable and contingent and not across the board accepted as customary in natural law is to deny its actual operative effect as a norm in the settings in which it's treated as custom. So that's sort of why I think the rule of conception is wrong. Then the question is, well, why is it pernicious? And there are two reasons it's pernicious. One reason is analytic. So if you expect custom to operate like a rule book, you will spend your time asking a series of questions that are in my view irrelevant to the practice of international laws. So you will ask the kinds of questions that I think lots of people obsess over in the context of custom. You will say, ask things like, when may a treaty demonstrate the evidence of custom. As if the answer to that question is identifiable across the board in all circumstances in which custom applies. It's not. Or you will ask the question, how do we know when the practice is sufficiently widespread? And what do we make of, for example, silence or acquiescence in trying to identify what their position is customary in natural law? That question makes sense. If you think that the answer, that custom derives that of secondary rules that apply across the board in all circumstances, it makes no sense if you recognize that custom is actually a much more contingent and variable kind of law. So it's pernicious because it's distracting attention to a set of questions that are largely irrelevant to the practice of law on the secondary rules. And it is pernicious. This is also because it occludes the ways in which custom actually operates, as I said, as it often does, for example, on the ICRC example, on the ground in the circumstances in which global actors actually treat normative material as custom. And so as lawyers, we simply need to be aware that custom manifests in the way that the ICRC's guidance does. So that's the analytic claims. And then the normative claim is the way it's pernicious is something I mentioned earlier, which is that once one assumes that customary international law must operate like a rule book, one uses the rule book conception as the metric for normative evaluation. So when it says, like, insofar as it doesn't satisfy the rule book conception, it's clearly flawed. And of course, we're all familiar with these modes of reasoning. Like customary national law is an inherently deficient kind of law people say, because it's too variable. Because we can't really identify when something is or is not custom. We don't know what the rules are. This is all, it might be rule book thinking, and it is distorting. And it's distorting because it systematically undervalues the ways in which custom actually contributes to the global order by not being like a rule book. So it might be that there are certain disadvantages to the fact that it doesn't operate like a rule book, but no one even thinks to explore the advantages of it not acting like a rule book. And I think there are some that are worth exploring and recognizing and that have largely gone under the radar screen. So Professor Kimi, I just have one quick follow up and maybe my colleagues would also want to pitch in on this one. But so you mentioned that looking at the rule book or looking at CL through the rule book conception makes our understanding of customary national variable, or at least that's what lawyers sometimes tend to get 10, but the most relevant to national is two variable. Therefore, it's a not the most reliable source of international law. But if you remove the rule book conception from the equation altogether, would it not then continue to be variable on account of say, contesting or competing claims that many global actors would be making on what is and is not customary to national things out to that as well. If I could just add to this question. So assuming that we are not the use of secondary rules of the opinion, and you're just in state practice in recognizing a rule or a developing or more a norm of customary international law, then what is the criteria here? Is there any and how do we see, for example, if five states operate in a certain manner amongst each other, is it then custom as well, then who gets to decide and where do we draw the line and what is in is in custom? Okay, so good. So on the first question, the answer is yes, it would still be variable, but its variability might not be a problem. So the rule book pushes us to assume that its variability is a problem, because the rule book says that it must not be variable. But in fact, its variability might not be a problem, or at least it might come, might be certain advantages that come with it. And in the paper, I identify three, so I'll tell you what they are. The first is that allowing for variability actually, in my view, reduces the extent to which biases get embedded in the law. So if, for example, if you think that customary international law always must look like a rule book, your instinct will be to try to solidify as much as possible the rules of customary international law, to insist that they always operate like rules. But then one has to identify what those rules are. And as 12 scholars have underscored, the inclination is to find that that which powerful states identify as customary international law is in fact customary international law. And that move ends up entrenching into rules, the positions that happen to just be the positions of the states that are most vocal or active in the area. It seems to me to be much more desirable from a normative perspective and given like the overall commitments of international law. So we recognize that in fact there can be variability because that variability creates space for states, particularly states of the global south, that might not have participated in the formulation of the norm as it was being developed or might have been silent or for any number of reasons, like shows not to weigh in on it to be able to continue to say like, no, actually, that's not a rule. That's just your position on the rule. And we disagree with it. And that customary international is inherently contestable and variable and contingent. And so whatever you take to be the rule, we are in various ways resisting it. So that is a mechanism that's available. If you accept its variability, but if you insist the customary international law must always be hardened and firm, that kind of resistance becomes less available. And in my view, that will overwhelmingly fall on the backs of participants in legal process that have historically been marginalized. Now, it might still be the case that in some circumstances, global south, for example, would benefit from having a particular norm entrenched like a rule. So what we do is that in those circumstances, we as participants in this process and the states of the global south in particular should work to entrench that particular rule or that particular norm. It's not the answer is not to say the customary international law must in all circumstances be like rules. Like if what you want to do is actually protect people from oppression through law. And then saying that you get limiting bias, that's one thing. Two is, I say that actually variability in some sense contributes to regulatory efficacy, you could say or settlement. We often think of variability as being contrary to actually establishing conduct norms that regulate behavior and have a material impact. And the piece actually variability contributes in many ways to the establishment of norms because by being open by being fluid. First of all, participants in process can can, you know, throw out ballies and say, you know, I, we want this to be a rule of customer and we want this to be customer international law. We claim that it is does anyone agree with us. And that is how the process of creating something like a rule, something that is entrenched happens. And even if you can't entrench it, it is still the case that the sort of the fluidity allows participants to identify like short term provisional compromises for discrete settings that they might not be able to find if they were required to identify what the rule is in all settings and across the board. So that's two is that it's variability allows for the production of conduct norms that might actually regulate behavior. And three, again, not in all circumstances, but in some circumstances. And the some circumstances is the part of the equation that I think we as international lawyers have tended to ignore. Three, I also think that engaging in the sort of arguments about whether something is or is not a customary international legal rule and these arguments are reflective of its variability. Like we can argue about whether something is or is not because there's so much play in the joints and custom. And having those arguments that seems to me contributes in many ways to some basic rule of law values that we generally prize in legal systems things like accountability, reason giving, responding to counter arguments, self reflection and deliberation. And these are all things that requiring argument in requiring arguments about authority and particularly about authority. arriving from the international level contribute to. And custom, it seems to me, is particularly good at fostering these kinds of arguments, and therefore, requiring pushing those who exercise power to provide justifications and reasons for what they're doing to people who are affected by them. And so that's the third thing that I think is off the equation. Now, the second question you ask is, who gets to decide, given that it's so variable, who gets to decide, what qualifies as custom? And the answer in some sense is no one gets to decide, in the other sense is everyone gets to decide. I mean, the nature of the customary and national legal processes that it's unstructured. And so those who want custom on their side, those who want the laws authority on their side, have to actually earn it from other participants in the process. You know, sometimes I think people say things like, oh, well, if it's under-determinate, then it's just then the law is in the eye of the beholder and whatever anyone wants it to be, it can be. But that's not, there's very little evidence to support that. In fact, what happens is that because it's under-determinate, those who want it on their side, whether generally or in particular settings, have to make a showing that they are owed the authority that they seek. And so, and that again, contributes to the argumentative practice that I was talking about earlier. And so in so far as they are successful, they establish their authority. And this might spiral to the point that a norm becomes really entrenched. Or it might not. It might just be a constant sort of push and pull as different actors are advancing different positions. Professor Kimi, just to take a really-- And I'm going to get each other about it. Quickly pitch in about establishing authority. I'm just wondering now, how would they be able to do that if not through the conception of, for instance, the two element testers saying, OK, well, this is the criteria that I'm going to look at to say, this is the authority that I'm relying on, therefore, it is custom-aunt to national low. So again, practically speaking, I'm wondering, and curious as to how that might play out. So good. So this is a deep question about how authority is created and how we identify what is authoritative in international law. I am not positivist in my inclination. So I don't think authority just arrives from a set of sources that are preestablished and handed down to people to use. I think authority is constantly being constituted and reconstituted by the interactions that put it in issue. And so the answer is, I'm making-- and this is recognized to some extent when we talk about the process of custom. It's just not recognized when we talk about the content of custom. But so the answer would be, I want to make a claim about what is custom. And you can challenge that claim, in which case, I will have failed to establish my authority with you. Someone else might accept it, in which case, I might successfully establish my authority with that person. And that explains the variability in custom. Because the process is not structured, because the participants in it do not act as a coordinated block, different actors will have different perceptions of what is authoritative and will apply their perceptions differently and their expectations differently in different circumstances. So Professor Kim, if I could just put a hypothetical for you to answer. So building on the Albeșir case, which you mentioned in your article as well. So let's say a case has come before the court, where we see contestant games. We see that more or less the blocks are somewhat in contention as to who is right and who is wrong. And we see there's a pinnuous in practice on the one side. So we see some states deem it as custom, a particular norm. And the contesting norm is also being utilized as custom by a few states. So then the normal, if we go by the rule book conception, both states will try to argue that this is, or this has attained the status of a custom. And that's how the court will decide which side is right. But because they're in contesting views and both are custom, what happens then? Well, because they're both-- so exactly so good. So first of all, yes, I would say that they are both custom. Other people would say that that's not possible because they're in conflict with one another. And you need to have a sufficiently sufficient widespread commitment to it in order for it to be custom. So I would say both of those competing norms are custom. And if the question is, well, how is the ICC, for example, a pellet chamber supposed to resolve what it is going to treat as custom, the answer is that it has to do what other participants in the customary and international legal process also do, which is it has to decide which position it is going to endorse. It has to try to justify it by reference to the various discursive moves that are available. And it might make a compelling case, and others might go along with it, or it might not. And others might continue to resist it. And so it's up to the court to do what everyone else has to do, which is exercise independent judgment, not look to some rule book, which does not exist, to decide whether it's going to treat one or the other norm as a foritative. Now, people will say, well, that puts a court in a terrible position. And it might. And so that might mean a couple of things. It might mean that we should less often expect courts to resolve contentious issues on customary and national law. It might be that they are not the right institutions to resolve that which actually is not resolved already. It might mean that, too, it might mean that particular courts ought to be very, very cautious about how they approach custom in the face of real contests about its content. So for example, the ICC, Bell Chamber, might not resolve the customary and international law question before. It might say that things are still too open. There are two competing positions in play. And we're not going to resolve that question. We can decide the question on other grounds. It might be that a court decides the third option, might be that a court decides, like, look, we're going to apply our own standard for what is or is not custom. And this is what will qualify as custom in our courtroom. In other arenas, other things might be treated as custom. But these are the, you might say, secondary rules that are specific to our institution in order to give litigants, in this case states, a better-- or in I just see J's case states, in the ICC case individuals and states, and the prosecutor-- a better sense of what's going to happen in these settings. So there are different things that courts can do to manage the facts of custom. But what they can't do is identify a set of rules. And the reason they can't do that is because there are no such rules to apply. So Professor Kimi really quickly-- and I think I'm sure Omar and John probably have much to ask and say as well. But I'm definitely curious, because do you think that it then does not poke a hole into this hole already abstract or the fact that states want some reliability when they look to international or on the international plane to get a sense of justice or equity? And then there's some form of reliance to these set hardened rules. Whereas in this way, I kind of feel like I think it diminishes the reliability that some states, even from the global self, might have in the system. That's number one. And number two, coming and harkening back to your original point about sort of inherent biases within the rulebook conception as to how certain powerful states have sway and other states do not, this would essentially would not do the same than as to how powerful states having that sway when there is little reliability to a certain standard or a set of rules. And again, thinking out loud. So I'm fully open to hearing your position because it's very, very interesting to me. - Yeah, thank you. These are great questions. And I'm sure there are questions that lots of your listeners will have. So on the question of reliability, I think I guess a couple of things. The first thing is, I'm not sure people want reliability if something is reliably oppressive. I mean, reliability sounds good in the abstract, but it's often in tension with other principles or values that we also have. And so reliability for reliability sake is not always, in my view, what we should aspire to create. So that's the first point. The second point I would say is that, I think in any healthy legal system, you have a mix of things that are open and things that are, and contestable. And movable and things that are a little bit more settled. Now you can have a debate about what's contestable, what should be contestable and what is not. But it's not the case in my view that like the ideal legal system is one in which everything is settled, everything is fixed, everything gets mandated, and everyone just follows the rules. Actually, that sounds to me again, oppressive. So it seems to me that even if reliability is the thing that we are going to prioritize, and again, it's not clear to me that it always should be because it's in its intention with other things that we might also prioritize. It's not as if we want reliability across the board. And so the question is whether the legal system as a whole is sufficiently reliable, and it might not be. And then that is something that we ought to consider. On the question of whether powerful states will have too much sway, I think the answer is yes and no. Powerful states are powerful states. Powerful states can do things because they have material power. But at least historically, many powerful states have wanted not just to have material power, but also to have normative power, the authority of the law on their side. And as, and this goes back to something I said earlier, it's not the case that they can just create authority to be what they want to beat. That's just not how authority works. So if they want the laws normative power on their side, if they want the law on their side, they need to actually establish their authority, which they do by working with and earning it from other actors. So will that be enough to constrain the gross power disparities in the world? Of course not. Absolutely not. But we should keep in mind what the alternatives are, which it seems to me are not actually constraining the hard power of conventionally powerful states. The alternative might be that those states just exercise power as they want. And the normative valence of international law is not available as a check or a counterbalance on them. And actually I think that's the direction we are moving in with the United States right now. So I think it's not far fetched possibility. But don't you think that that would create a practical hindrance for such you know, weaker states to invoke principles of customary law when the so-called structure of customer law doesn't exist because if for example the ICJ cannot discern or identify the entrenchment of certain norms, then that creates a stalemate and given the increasing international adjudication in these contested matters, wouldn't that just create a practical problem for international law? I don't know, but I think the answer is not again to pretend that international law is something that it is not. I think the answer is actually to do the hard work to help states that have historically been disadvantaged get the law on their side, which means actually requiring and pushing them to participate much more than they historically have. Now I recognize that their impediments, their participation, that's one of the structural disadvantages that sort of built into the system. But lots of people are focused on international law, there are lots of NGOs, there are lots of institutional mechanisms available. And instead of these mechanisms focusing for example constantly on solidifying rules, what might be more helpful is that they focus on actually enhancing the process and enabling these actors that have historically been disenfranchised to participate more actively and more vocally in the process. So for example, in the context of self-defense, which is sort of custom and treaty law simultaneously, there have been proposals to be more transparent about states' positions on the parameters of the right to use force and self-defense. I think this is a great idea. And I don't think it has gotten the attention that it has deserved, maybe because people are worried that when states express their positions, they will have very different positions. And then all of a sudden it looks like we don't actually know what the parameters are, but wouldn't that be better than pretending that we know what they want and imposing it on them. So in my view, we should actually push, we should engage in like the political work of pushing for more engagement in the process, as opposed to pretending that they can be protected by rules that actually are not really rules and are very unlikely to protect that. Just a small follow up and I'll hand over to Shayan. Why do you think the intellectual foundations and the theory of international law has been so disassociated with the actual practice as you claim? Because if legal advises of governments and scholars and practitioners have been relying on the two-test theory and the rulebook conception, why do you think their intellectual understanding of the customary international law is so misinformed? Well, I think if you were to ask most practitioners, they would say simultaneously that yes, the two-element tests is sort of the test and yes, we have sort of this idea of what customary international law is that is sort of like the rulebook. But then if you were to ask them to describe what they actually do in practice, they would describe it much more like what I'm describing. And so then the question is, well, what explains that gap? And I think part of what explains that gap is the insistence by so many people in the field that actually customary international law ought to be like a rulebook. And again, as I said, I think this is not a, I think this matters. I think the gap makes it harder for people to do what they ought to be doing into some extent already are doing, but sort of don't I think recognize that they're doing it. Therefore, don't bring their full like analytic, like chops the bear on what it is they're doing. So because they're testing views and you mentioned that in that case, the court should not pronounce on whose right who's wrong. But then if we take that logic a little further, then the side which has more opinion, juris and state practice on its side, assuming that is the case, would perhaps have a better chance of or siding in its favor. So then can we not say that secondary rules are then tacitly being applied even in these contested situations and going by your theory? I don't think thinking about them as rules, like, is the right way to think about what's happening. So it might be that the court is looking to the same raw material to try to figure out what it will articulate as the conduct norm in a particular context. But I don't think what it's doing when it's doing that is applying rules. And again, I think this matters because I think thinking about it in terms of rules structures the analysis in a particular way. So it's not as so so and I'm pushing this in part because this is some of the pushback I got on the opinion, your es blog, people say like, Oh, well, you're basically just describing a different set of rules. And in my view, what that what that response reflects is a refusal to give up the rule book and the kinds of questions that the rule book insists on. So I'm not describing a different set of secondary rules. In fact, what I'm doing is I'm saying that there are not rules and the court doesn't have them either. It has other ways of making decisions and those decisions, those ways of making decisions might be good or bad, right? So it might be that what they're doing is reinforcing the positions of dominant states. And that might be bad. But but that is not a they're not following rules when that's what they're doing. So Professor Kimmy, very quickly, then in the vacuum of such a structure, would you think and this probably stems from the reliability issue to now credibility? Would you think this would or wouldn't wouldn't you think that this might significantly damage the credibility of judgments over variety of courts, pronouncing on something where somebody or some state or some actor that does all agree with the judgment can say, well, hey, what are you what are you relying on essentially? So it's a sort of I think I think makes it or at least for me in my understanding of how how it is right now it makes it a scary looking well when when actors can start questioning the credibility of courts, which is already happening quite significantly in some areas. Well, it might be that courts should therefore be more cautious about the positions that they take. It might be that actually it's not a good idea for courts to assert that something is custom when in fact, the thing is contested. And in fact, when courts do that, it might be a way of reinforcing status hierarchies or imposing on whole groups of states positions that they don't agree with. So it might be that courts should less often do that. If courts do it, I personally am not particularly concerned about the sort of contest that happens around judicial decisions, because I think that's reflective of a healthy legal system. I mean, you know, it happens in domestic legal systems all the time. A court issues a decision and people disagree with it and they and then the decision might get circumscribed in future cases, it might get expanded, it might, I mean, this is just the way things work. So I don't think that's a problem. I think it's actually indicative of a healthy legal system, one in which positions are taken and then their challenge and they're either reinforced or they're undermined depending on whether those positions are desirable and salient and able to actually to regulate in a way that the community at large wants to have it be regulated. So if we assume that the rule book conception is just everybody forgets it, it's thrown out of the window. Would it then be easier to entrench norms or establish norms of custom given the idea that if it is a continuous and there's no endpoint to the process of entrenching these norms, then would it be easier for us to establish norms of custom or would it become even more fuzzy as a professor, a given header likes to use? Well, I think the answer would be easier in some ways and harder in others. So it would be easier in every, in any given instance to try to claim and persuade someone that something is custom and because you would recognize that a broader range of normative material qualifies as custom that something doesn't need to be super, super, super entrenched, which by the way it already doesn't in, in, in fact, to be custom. So you might more often see custom in the real world, but it would also mean that in instances in which it's invoked, it would more often have to be justified and explained. And the more global actors and states in particular adhere to a particular norm, the easier it is to entrench it, right? For example, it would not, it would not be salient to say that torture, that the prohibition of torture is not a customary international legal norm. I could say that nothing would come of my saying that because No one would sign onto that proposition, even if States frequently do, in fact torture, they wouldn't sign on to that proposition. So it is the case that some conduct norms do get entrenched and do therefore display, I would say rule-like qualities, do apply more or less across the board and are stable. But those positions are contestable and actually recognizing as much focuses us on making sure that they are sustained and bolstered to the extent that we care about them, instead of just assuming that once they exist, it's very hard to unravel them, for example. - But if the critics, for example, are likely to say that under the traditional conception, customer norms have to be generalizable and easily discernible and they have to apply uniformly for all cases of a particular type. So if that doesn't happen, then how do you reconcile any norm of custom? - You could go about justifying it using many of the discursive moves and methods that are already on offer and custom. So you can say things like, yes, this is a customary international norm because legal norm, because look at all of these treaties that support it and look at all of these states that have supported it and look at all of these instances in which it's treated as such. And look, the ICJ said that it was and that is all good support for the proposition that this particular norm has authority because authority in my view, as I've suggested earlier, socially constituted. It's not as if any one actor can just claim that it exists. So socially constituted, there's all this evidence that this norm has authority. And so we ought to treat it as such and then it would be incumbent on an actor who denies it to say like, yeah, I don't care about any of that. I still say it's not. Now, even though those discursive moves are available and even though I think they are oftentimes persuasive, again, the point is just that they do not operate like rules. And so we should not assume that any set of moves, including any coherent view of what the two element test is across the board, that it just supplies in all circumstances because it doesn't. Still, even though it doesn't, we seem to be doing pretty well, making arguments that things, the particular norm's should or should not be treated as custom. - So Professor Akimi, I think we should probably move towards concluding the session. But before we do that, could you highlight some of the key takeaways which were made or some of the input which was given by the distinguished authors and sort of what do you make of that and what's your reply to those particular authors? - So you want me to argue for my adversaries? - No, no, no, no, you're self. (laughing) - I'm just kidding. So, sure. One, so, as I said in my reply post on the symposium, I don't think most of the critical comments were in some sense talking past my argument and not at my argument. So, one set of critical comments had to do with the gap between what people imagined to be custom and what they practiced as custom. And the claim here was that their imagination is what matters and what they're actually doing that you can't associate the two. And my response to that is, no, you can't associate the two. What people often have misunderstandings about what they think they're doing and those misunderstandings don't necessarily reflect what they're actually doing. So I think that's not persuasive and not completely responsive. As I mentioned earlier, another argument against my position was that I'm just replacing one set of secondary rules with another. My response to that is that suggestion itself reflects rulebook thinking. I'm not actually replacing one set of rules with another. I don't think there are such rules and I think we need to acknowledge that and I think acknowledging it has, it naturally matters in terms of how we think about and analyze the practice. And then there were a series of disagreements that where I would say more jurisprudential in nature that were asking the question of whether what I'm describing can actually be law or satisfy normatively desirable conception of what is law and in particular, one of the things we need from law, the argument goes is that it's meaningfully distinguishable from non-law and if we don't have criteria to distinguish law from non-law, how do we know what we're doing? So these are, in my view, jurisprudential questions which are interesting, but they're largely detached from the practice. They're sort of meta physical questions, not questions about how the law actually operates in practice and I don't think they're unimportant. I just think again, they're not responsive to what I'm trying to do because what I'm trying to do in this piece is describe how the stuff actually works. And so if, in my view, the stuff that people use and treat and refer to as custom doesn't match some jurisprudential theory, okay, you might say it's not law or it's, that's not, I'm not invested in that issue. I think the better response is to say, well, those jurisprudential theories just are flawed. They don't accurately capture a lot of the stuff that people in the real world understand to be and treat as law. So maybe we should use the facts of the world to question these meta physical theories as opposed to using the meta physical theories to question the facts of the world. So I would say that those were the most salient criticisms of the piece. But you should read the symposium. They're a great honor. - I think that's a good idea. - Yeah, yeah, I think it's a symposium. - So I think that brings an end to a very insightful session and before we let you go, do you have any final message for your critics and the ardent preachers of rulebook conception? - I just, my only message is please defend it if you want to adhere to it. It's not in my view defensible. - Yeah, if I could just like add right at the end, I think this is a fascinating discussion. I definitely, I don't know if I speak for Roman Chao, but for me as a young practitioner and a young international lawyer, it so strongly challenges my view of the way I conceive international law to be. It's fascinating to have the discussion with you because if it's not reinventing the wheel, it's definitely refashioning it. And to me, it takes a lot of absorption and thinking and it's just great to have the chance to talk to you about it. So yeah, thank you so much. - Thank you. - I think before sort of reading your article and sort of having this conversation with you, we had a very sort of a narrow thinking, okay, we've read this book, this is what principles of law or this is what custom is. And you just move past it to the different themes of international, but you never wait and see, okay, maybe there's an issue in custom, what does custom look like? What should it look like? So I think that was very interesting. - Basically what Shiaan is saying is that you destroyed our childhood. (laughing) Yeah, also that. - Well, well, it's happened to all of us. (laughing) - I'm so glad, thank you for, thank you. I appreciate the conversation and the feedback. - Absolutely, thank you. All right, thank you so much, Professor Hakim. So that brings us to the end of the podcast. I hope you enjoyed it. Please go out and read Professor Hakim's article and also follow all the posts on the symposium on Furnier-Yorkis. That's all from us on this podcast. And we'll see you next time. Thank you. - Great, thank you so much. - Thank you very much.