STERNINTRO.

DOC 04/04/01 3:11 PM

INTRODUCTION
POWER, OBLIGATION, AND CUSTOMARY
INTERNATIONAL LAW

MICHAEL BYERS*

A dwarf is as much a man as a giant is; a small Republic is no less a

1
sovereign State than the most powerful Kingdom.

When Emmerich de Vattel wrote these words in 1758, he was

expressing a basic tenet of eighteenth century international law. Sov-
ereign equality remains a central aspect of the international legal sys-
tem today, with Article 2(1) of the United Nations Charter stating:
“[t]he Organization is based on the principle of the sovereign equality
2
of all its Members.”
The struggle to achieve and maintain equal rights for all is fun-
3
damental to the history of many national legal systems. Although
some individuals possess infinitely more wealth and influence than
others, legal equality matters as it provides the possibility of access to

Copyright © 2001 by Michael Byers.

* Associate Professor, Duke University School of Law. I am grateful to Brigitte Stern
for making this an “approved translation,” Joseph Eckhardt (J.D./LL.M. 2002, Duke Univer-
sity) for his able research assistance and Anne Denise (B.A. 1996, Cambridge University).
Anne, who now works at Merrill Lynch, not only provided essential assistance with the first
draft of the translation, but opened my eyes to the wealth of writing on international law in lan-
guages other than English.
1. EMMERICH DE VATTEL, LES DROIT DES GENS, OU PRINCIPES DE LA LOI
NATURELLE, APPLIQUÉS À LA CONDUITE ET AUX AFFAIRES DES NATIONS ET SOUVERAINS §
18, 7 (Charles Fenwick trans., 1916).
2. U.N. Charter, art. 2(1) (visited Sept. 10, 2000) <http://www.un.org/aboutun/
charter/index.html>.
3. Protection of equality in U.S. law is found in the fifth and fourteenth amendments of
the Constitution, which served as a foundation for twentieth century civil rights legislation. See
MARY ANN HARRELL, EQUAL JUSTICE UNDER LAW: THE SUPREME COURT IN AMERICAN
LIFE (4th ed. 1982). Analysis of equal rights in various countries can be found in scholarship on
comparative constitutional law. See, e.g., CONSTITUTIONAL PROTECTION OF EQUALITY (T.
Koopmans ed., 1975); VICKI JACKSON, COMPARATIVE CONSTITUTIONAL LAW (1999);
MICHAEL VON LOTHAR, DER ALLGEMEINE GLEICHHEITSSATZ ALS METHODENNORM
KOMPARATIVER SYSTEME: METHODENRECHTLICHE ANALYSE UND FORTENTWICKLUNG
DER THEORIE DER “BEWEGLICHEN SYSTEME” (1997); MARCEL PRELOT, INSTITUTIONS
POLITIQUES ET DROIT CONSTITUTIONNEL (Jean Boulouis ed., 11th ed. 1990).

81
STERNINTRO.DOC 04/04/01 3:11 PM

82 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 11:81

legal institutions, including law-making processes. Legal equality is

likewise vital to the international legal system composed of approxi-
mately 190 nation-states. Referred to as “sovereign equality” in this
context, legal equality in international law enables weaker states to
enter into treaties with powerful states with the expectation that the
treaties will be upheld.4 Sovereign equality also provides states with
equal votes in many international organizations5 and ensures them the
equal benefit of essential privileges such as diplomatic immunity for
their representatives abroad.6
But just as Bill Gates has more influence than most other Ameri-
cans on the development and application of U.S. law, there are limits
to the concept of sovereign equality in international law. Some of
these limits are legally formalized: there are only five permanent,
7
veto-holding members of the U.N. Security Council, for example.
Similarly, the votes of certain economically powerful states are ac-
corded greater weight than those of other member states of the
World Bank and International Monetary Fund.8 These formal differ-
ences are often the results of disparities in negotiating power among
the states that established these organizations. In most treaty nego-
tiations, weak states attach greater value to the stability offered by
conventional instruments than powerful states and are therefore often
willing to make significant concessions in order to secure a legal re-
gime. And powerful states, with their greater resources and broader
range of activities and interests, are better able to link bargaining is-
sues and negotiating arenas strategically so as to offer incentives—
and disincentives—across and among a wider range of topics, thereby
constraining the options of less powerful states in ways that are subtle
yet often extremely effective. In the Uruguay Round negotiations

4. Article 6 of the 1969 Vienna Convention on the Law of Treaties establishes that
“[e]very State possesses the capacity to conclude treaties,” and Article 26 codifies the principle
of pacta sunt servanda: states parties are bound to perform their treaty obligations in good faith.
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S.
331, reprinted in 8 I.L.M. 679.
5. See, e.g., U.N. CHARTER, supra note 2, in art. 2 (1) and art. 18 (1) (“Each member of
the General Assembly shall have one vote.”).
6. See Vienna Convention on Diplomatic Relations, April 18, 1961, art. 29-31, 23 U.S.T.
3227, 500 U.N.T.S. 95; see also EILEEN DENZA, DIPLOMATIC LAW (1998).
7. See, e.g., U.N. CHARTER, supra note 2, art. 27(3).
8. See 1944 Articles of Agreement of the International Bank for Reconstruction and De-
velopment (World Bank), art. 5(3)(a), 2 U.N.T.S. 39, 134, 606 U.N.T.S. 266 (visited Sept. 10,
2000) <http://www.worldbank.org/html/extdr/backgrd/ibrd/arttoc.htm>; 1944 Articles of
Agreement of the International Monetary Fund, art. 12(5)(a) and (b), 726 U.N.T.S. 266 (visited
Sept. 10, 2000) <http://www.imf.org/external/pubs/ft/aa/index.htm>.
STERNINTRO.DOC 04/04/01 3:11 PM

2001] INTRODUCTION 83

leading to the creation of the World Trade Organization, for example,

the developed world obtained far-reaching concessions on intellectual
property and trade in services in return for a binding dispute settle-
ment mechanism and further progress—and the promise of further
negotiations—on two other issue areas of profound concern to the
developing world: textiles and agriculture.9
Similar strategies are applied by states within international or-
ganizations when resolutions and declarations having direct or poten-
tial legal effect are negotiated and adopted. The United States, for
example, used financial incentives (including the provision of aid, the
lifting of trade sanctions, and support both for World Bank loans and
for increased aid flows from other states) as well as promises to ex-
clude certain states from international conferences and resume nor-
mal diplomatic relations with others, in order to secure greater le-
gitimacy for Operation Desert Storm through the adoption of
10
Security Council Resolution 678 in November 1990. A powerful
state’s application of economic and political pressure in one situation
can also give it a reputation for throwing its weight around—a reputa-
tion that may prove beneficial to it in later situations. For example, it
is well known that Yemen lost seventy million dollars in annual aid
from the United States because of its vote against Resolution 678.11
Accordingly, other developing states will now likely think twice be-
fore voting against the United States in the Security Council.
Customary international law is traditionally considered to be
comprised of two elements: state practice and opinio juris, with opinio
juris being a subjective feeling of legal obligation regarding the prac-
12
tice in question. Since subjective feelings are difficult to identify, the
analysis of customary rules has almost always focused on state prac-
tice.13 The questions asked include the following: what kinds of be-

9. See generally JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY
OF INTERNATIONAL ECONOMIC RELATIONS 305-17 (2d ed. 1997); TERENCE P. STEWART, THE
GATT URUGUAY ROUND: A NEGOTIATING HISTORY (1986-1992), at 2241 (Trade-Related As-
pects of Intellectual Property Rights) and 2335 (Services) (1993).
10. See Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision
Making: Precarious Legitimacy, 85 AM. J. INT’L L. 516, 523-524 (1991).
11. See Judith Miller, Mideast Tensions: Kuwaiti Envoy Says Baker Vowed ‘No Conces-
sions’ to Iraqis, N.Y. TIMES, Dec. 5, 1990, at A22.
12. See Lotus Case (France v. Turkey) 1927 P.C.I.J. (ser. A) No. 9, at 18, 28; Asylum Case
(Colombia v. Peru) 1950 I.C.J. 265, at 276-7; Right of Passage Case (Portugal v. India) 1960
I.C.J. 6, at 42-43; North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark
/ Federal Republic of Germany v. Netherlands) 1969 I.C.J. 3, at 44, ¶ 77.
13. Peter Haggenmacher has convincingly argued that the International Court of Justice
does not even attempt to analyze opinio juris when evaluating the existence and content of cus-
STERNINTRO.DOC 04/04/01 3:11 PM

84 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 11:81

havior count as state practice,14 how many states need to participate in

15 16
the practice, and over how long a period of time?
If state practice is treated as the primary element of customary
international law, it becomes difficult to regard disparities of wealth
and military power as irrelevant in the formation of customary rules.
In terms of their ability to engage in practice across a wide range of
issues, and thereby to influence the development of customary rules,
the tiny island country of Tuvalu (population 10,600) and the United
States are patently unequal, even though both formally have the same
degree of access to the international legal system.
Charles de Visscher, observing that the “slow growth of interna-
tional custom has been compared to the gradual formation of a road
across vacant land,” wrote in 1953:
Among the users are always some who mark the soil more deeply
with their footprints than others, either because of their weight,
which is to say their power in this world, or because their interests
17
bring them more frequently this way.
Michael Reisman is another international lawyer who has recog-
nized that inequality plays an important role in the formation of cus-
tomary international law. In 1987, he suggested that the United
States should shift the focus of its law-making efforts from treaties
and international organizations towards customary international law.
This reorientation was advocated as the United States, due to its
greater wealth and military power, could better influence law-making
in an informal environment than in more formalized procedural do-
mains such as the United Nations and multilateral negotiating confer-

tomary rules. See Peter Haggenacher, La doctrine des deux éléments du droit coutumier dans la
pratique de la cour internationale, 90 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 5
(1986).
14. See ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971);
Michael Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT’L L. 1, 1-3 (1974-
75); ANTHONY D’AMATO, INTERNATIONAL LAW: PROCESS AND PROSPECT 124 (1987) (dis-
cussing the debate between Michael Akehurst and Anthony D’Amato over which kinds of be-
havior count as state practice).
15. See North Sea Continental Shelf Cases 1969 (Federal Republic of Germany v. Den-
mark / Federal Republic of Germany v. Netherlands) I.C.J. 3, at 42, ¶ 73.
16. See South West Africa Cases (Second Phase) (Ethiopia v. South Africa / Liberia v.
South Africa), 1966 I.C.J. 6, at 250, 291 (dissenting opinion of Judge Tanaka); North Sea Conti-
nental Shelf Cases 1969 (Federal Republic of Germany v. Denmark / Federal Republic of Ger-
many v. Netherlands) I.C.J. 3, at 43, ¶ 74; MARK VILLIGER, CUSTOMARY INTERNATIONAL
LAW AND TREATIES 4 (1997); Bin Cheng, United Nations Resolutions on Outer Space: “Instant”
International Customary Law?, 5 INDIAN J. INT’L L. 23 (1965).
17. CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 147
(Percy Corbett trans., 1957).
STERNINTRO.DOC 04/04/01 3:11 PM

2001] INTRODUCTION 85

ences.18
There has long been a rich literature on customary international
19
law, which has realized a marked increase in recent years as interdis-
ciplinary approaches between international law and international re-
lations develop,20 and as scholars within some countries—particularly

18. See Michael Reisman, The Cult of Custom in the Late 20th Century, 17 CAL. W. INT’L
L.J. 133 (1987). Other scholars who have considered briefly the role of power in the formation
of customary international law include Oscar Schachter, New Custom: Power, Opinio Juris and
Contrary Practice, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST
CENTURY: ESSAYS IN HONOUR OF KRZYSZTOF SKUBISZEWSKI 531 (Jerzy Makarczyk ed.,
1996); SERGE SUR, RELATIONS INTERNATIONALES 246-9 (1995).
19. Some of the more significant contributions include: Michael Akehurst, Custom as a
Source of International Law, 47 BRIT. Y.B. INT’L L. 1 (1974-75); Percy Corbett, The Consent of
States and the Sources of the Law of Nations, 6 BRIT. Y.B. INT’L L. 20 (1925); ANTHONY
D’AMATO, THE CONCEPT OF CUSTOM (1971); René-Jean Dupuy, Coutume sage et coutume sau-
vage, in MÉLANGES OFFERTS À CHARLES ROUSSEAU 75 (1974); Paul Guggenheim, Les deux
éléments de la coutume en droit international, in 1 LA TECHNIQUE ET LES PRINCIPES DU DROIT
PUBLIC: ÉTUDES EN L’HONNEUR DE GEORGES SCELLE 275 (1950); Peter Haggenacher, La
doctrine des deux éléments du droit coutumier dans la pratique de la cour internationale, 90
REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC [R.G.D.I.P.] 5 (1986); Hans Kelsen,
Théorie du droit international coutumier, REVUE INTERNATIONALE DE LA THÉORIE DU
DROIT [R.I.T.D.] (new series) 253 (1939); Lazare Kopelmanas, Custom as a Means of the Crea-
tion of International Law, 18 BRIT. Y.B. INT’L L. 127 (1937); Joseph Kunz, The Nature of Cus-
tomary International Law, 47 AM. J. INT’L L. 662 (1953); Vaughan Lowe, Do General Rules of
International Law Exist? 9 REV. INT’L STUD. 207 (1983); Iain MacGibbon, Customary Interna-
tional Law and Acquiescence, 33 BRIT. Y.B. INT’L L. 115 (1957); Myres S. McDougal, The Hy-
drogen Bomb Tests and the International Law of the Sea, 49 AM. J. INT’L L. 356 (1955); Venkata
Raman, Towards a General Theory of International Customary Law, in TOWARDS WORLD
ORDER AND HUMAN DIGNITY: ESSAYS IN HONOR OF MYRES S. MCDOUGAL 365 (Michael
Reisman & Burns Weston eds., 1976); Oscar Schachter, Entangled Treaty and Custom, in
INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABTAI ROSENNE
717 (Yoram Dinstein ed., 1989); SERGE SUR, LA COUTUME INTERNATIONAL (1990); HUGH
THIRLWAY, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION (1972); KAROL WOLFKE,
CUSTOM IN PRESENT INTERNATIONAL LAW (2d ed. 1993); NANCY KONTOU, THE
TERMINATION AND REVISION OF TREATIES IN LIGHT OF NEW CUSTOMARY INTERNATIONAL
LAW (1994); Rein Müllerson, The Interplay of Objective and Subjective Elements in Customary
International Law, in INTERNATIONAL LAW: THEORY AND PRACTICE: ESSAYS IN HONOUR OF
ERIC SUY 161 (Karel Wellens ed., 1998). See also Rudolf Bernhardt, Customary International
Law, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 898 (Rudolf Bernhardt ed., 1992).
20. On bridges between international law and international relations, see generally Judith
Goldstein et al., Legalization and World Politics, 54 INT’L ORG. 385 (2000); THE ROLE OF LAW
IN INTERNATIONAL POLITICS (Michael Byers ed., 2000); Anne-Marie Slaughter, Andrew S.
Tulumello and Stepan Wood, International Law and International Relations Theory: Toward a
New Generation of Interdisciplinary Scholarship, 92 AM. J. INT’L L. 367 (1998). On interdisci-
plinary approaches to customary international law, see FRIEDRICH KRATOCHWIL, RULES,
NORMS, AND DECISIONS: ON THE CONDITIONS OF PRACTICAL LEGAL REASONING IN
INTERNATIONAL RELATIONS AND DOMESTIC AFFAIRS 84-93 (1989); SERGE SUR, LA
COUTUME INTERNATIONAL (1990); Harold Hongju Koh, Contemporary Conceptions of Cus-
tomary International Law: Remarks, 92 AM. SOC. OF INT’L L. PROC. 37 (1998); MICHAEL
BYERS, CUSTOM, POWER AND THE POWER OF RULES (1999); Jack L. Goldsmith & Eric A.
Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113 (1999); Stephen
STERNINTRO.DOC 04/04/01 3:11 PM

86 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 11:81

the United States—become increasingly aware that customary inter-

21
national law may automatically be part of national legal systems.
With state practice remaining the focus of analysis, however, the
second element of customary international law is increasingly ig-
nored. To the degree that opinio juris is actually discussed, it is usu-
ally confined to the tight constraints of legal theory. Within these ar-
tificial limits the focus is on whether opinio juris represents a kind of
22
individualized consent or whether it precedes or follows the associ-
ated state practice, thus constituting an articulation of legal intent,23
24 25
expression of law-making desire, or mistaken belief.
The question of whether the limits on sovereign equality that ex-
ist with respect to state practice also pertain to opinio juris has re-
ceived virtually no attention. In my own writing, I have suggested—
albeit without examining the issue in great detail—that opinio juris
has traditionally served two closely-related functions:
First, it was used to distinguish legally relevant from legally irrele-
vant State practice. Secondly, and perhaps less obviously, it was
used to control the abuse of power by States within the process of
customary international law. In short, the requirement of opinio
juris meant that only some instances of State practice counted for
the purposes of the customary process, since a State had to believe
that its behaviour was already required by customary international
law. This test controlled the abuse of power, and promoted stabil-
ity and determinacy, by excluding a great deal of State practice
which might otherwise have contributed to the development, main-
tenance or change of customary rules. It thus fulfilled what would

Toope, Emerging Patterns of Governance and International Law, in THE ROLE OF LAW IN
INTERNATIONAL POLITICS 91, (Michael Byers ed., 2000); Gerry Simpson, The Situation on the
International Legal Theory Front: The Power of Rules and the Rule of Power, 11 EUR. J. INT’L
L. 439 (2000).
21. See, e.g., Philip Trimble, A Revisionist View of Customary International Law, 33 UCLA
L. REV. 665 (1986); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorpora-
tion of International Law, 111 HARV. L. REV. 2260 (1998); and the response from Harold
Hongju Koh, Is International Law Really State Law? 111 HARV. L. REV. 1824 (1998).
22. See, e.g., Olufemi Elias, The Nature of the Subjective Element in Customary Interna-
tional Law, 44 INT’L & COMP. L.Q. 501 (1995); I.M. Lobo de Souza, The Role of State Consent
in the Customary Process, 44 INT’L & COMP. L.Q. 521 (1995); Maurice Mendelson, The Subjec-
tive Element in Customary International Law, 66 BRIT. Y.B. of INT’L L. 177 (1995).
23. See ANTHONY D’AMATO, THE CONCEPT OF CUSTOM 74-75 (1971).
24. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 238-45 (1980); James Craw-
ford & Thomas Viles, International Law on a Given Day, in VÖLKERRECHT ZWISCHEN
NORMATIVEM ANSPRUCH UND POLITISCHER REALITÄT: FESTSCHRIFT FÜR KARL ZEMANEK
45 (1994).
25. See Peter Benson, François Gény’s Doctrine of Customary Law, 20 CAN. Y.B. of INT’L
L. 267, 276-7 (1982) (discussing FRANÇOIS GÉNY, MÉTHODE D’INTERPRÉTATION ET SOURCES
EN DROIT PRIVÉ POSITIF 367-71 (2nd. 1919)).
STERNINTRO.DOC 04/04/01 3:11 PM

2001] INTRODUCTION 87

appear to be an essential function within any developed society,

that of socialising the behaviour of society’s members by imposing
the framework of a legal system upon them, of enabling them to
think rationally about the future and not to focus on short-term cal-
26
culations of interest and risk.
This analysis rests upon an optimistic view of the relationship be-
tween power and the second element of customary international law.
It reflects the influence of recent theoretical developments—most no-
tably “sociological institutionalism” (now frequently referred to as
“constructivism”)—which explore how perspectives and understand-
ings shared among different actors make the world of international
law and institutions differ fundamentally from the selfish, mechanistic
27
world described by traditional “realists.”
Drawing upon the work of regime theorists and institutionalists, I
argued that some aspects of the international legal system—such as
opinio juris—have an entrenched specificity that makes them at least
28
somewhat resistant to short-term fluctuations of interest and power.
Brigitte Stern’s article, reproduced in translation below, presents a
less optimistic view. Stern argues that opinio juris, though held by all
states, is in fact a creation of powerful states that is imposed upon the
weak. This argument carries the insights of de Visscher and others to
a new level and helps make Stern’s article one of the most important
pieces ever written about customary international law. Power is in-
trinsic to both elements of customary international law, which there-
fore needs to be analyzed and understood on that basis.
Originally published in 1981, the relevance of Stern’s article now
extends even further due to the subsequent literature developed at
the intersection between international relations and international law.
By explaining how inequality affects opinio juris, Stern’s analysis

26. MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES 212 (1999).
27. For constructivist perspectives, see, for example, JOHN RUGGIE, CONSTRUCTING THE
WORLD POLITY: ESSAYS ON INTERNATIONAL INSTITUTIONALIZATION (1998); ALEXANDER
WENDT, SOCIAL THEORY oF INTERNATIONAL POLITICS (1999); Benedict Kingsbury, “Indige-
nous Peoples” in International Law: A Constructivist Approach to the Asian Controversy, 92 AM.
J. INT’L L. 414 (1998); Benedict Kingsbury, The Concept of Compliance as a Function of Com-
peting Conceptions of International Law, 19 MICH. J. INT'L L. 345 (1998). For traditional realist
perspectives, see, for example, EDWARD CARR, THE TWENTY YEARS’ CRISIS (2nd ed. 1946);
HANS MORGENTHAU, POLITICS AMONG NATIONS (2d ed. 1954); GEORGE F. KENNAN,
AMERICAN DIPLOMACY (1984); KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS
(1979).
28. On regime theory and institutionalism, see ROBERT KEOHANE, INTERNATIONAL
INSTITUTIONS AND STATE POWER (1989); Stephen Krasner, Structural Causes and Regime Con-
sequences: Regimes as Intervening Variables, in STEPHEN KRASNER, INTERNATIONAL REGIMES
1 (1983); ORAN YOUNG, INTERNATIONAL COOPERATION (1989).
STERNINTRO.DOC 04/04/01 3:11 PM

88 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 11:81

poses something of a challenge to constructivism, institutionalism,

and similar theoretical approaches. The article forces us to recon-
sider the degree to which power is restrained as a result of communi-
ties, shared understandings, and international institutionsand thus
makes a major contribution towards explaining the full impact of in-
ternational politics on the structures and content of international law.