Byers Michael. Custom, Power and the Power of Rules International Relations and Customary International Law

Cambridge University Press, 2004. — 274 p. — ISBN: 0-521-63289-7 ; ISBN: 0-521-63408-3.The subject of customary international law as a general phenomenon is hardly more suitable for graduate research students in international law
than Fermat’s last theorem used to be for their counterparts in mathematics. The central puzzles of a discipline, which generations of its senior professionals have failed to solve, are usually better approached from the edges, and indirectly. Light may thus be shed on the centre, but there is less risk of complete failure. So when Michael Byers came seeking to work on custom it seemed sensible to look not frontally at the ‘problem’ as such, but at a number of examples of different kinds of custom in transition, at different contexts where, we could be relatively sure from the communis opinio, a particular customary rule existed and had changed. What were the factors that had produced the change; how had they interrelated; what influence did the ‘structure’ of the particular problem exercise – for example, what difference did it make on the evolution of a particular institution or custom that the issue characteristically arose in one forum (national courts in the case of state immunity, foreign ministries in the case of the breadth of the territorial sea)? At least it was a starting point. It says much for the energy and initiative of its author that the resulting book tackles these particulars within the framework of a study seeking to show the ways of international lawyers to the scholars of international relations. Of course international relations has been studied within the disciplines of history, ethics and law for as long as those disciplines have existed. But there was a particular point in focusing on ‘international relations’. As a self-conscious academic discipline it is of recent origin and has its own special history and orientation. The history is tied up with the failure of idealism, legalism and the League of Nations. So far as international law is concerned, its orientation is, or at least was, strongly influenced by the fact that early exponents such as Hans Morgenthau were versed in the subject and saw themselves as reacting from it – not so much in its lower reaches, those parts of the routine conduct of diplomatic and inter-state relations which the first generation scholars rarely reached, and which could safely be left to be ‘influenced’ by international law, but in the great affairs of state, and in particular in relation to the use of force. There was tension between the claim of international law, as embodied in the Charter and in decisions of the International Court, to regulate the use of force and the assertions of certain most powerful States, and of certain of their scholars, that force could be used in international relations as a matter of policy on any sufficient occasion, and that the language of diplomacy on those occasions was merely cosmetic. A further feature of the international relations literature has been its dominant focus in and on the United States. True, the involvement of the United States as superpower in any case can always be presented as involving a difference of kind, and it may indeed do so. But the combined emphases on the use of force and on the United States produced, at least until recently, a view of the world amongst international relations scholars which had a quite different feel – as if arising from a studied determination to grasp only one part of the elephant.