scholarly journals Why I Stopped Believing in Customary International Law

2018 ◽  
Vol 9 (1) ◽  
pp. 31-45
Author(s):  
Daniel H. JOYNER
Keyword(s):  
International Law ◽  
Legal System ◽  
Customary International Law ◽  
International Legal System

AbstractThere has been a recent proliferation of scholarship on the development, identification, and determination of customary international law [CIL]. Much of this has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. However, there are influential voices who argue that CIL nevertheless continues to play a necessary role in the international legal system, and that many of the problems that have been identified are exaggerated. This paper maintains that the problems which have been identified in the processes of identification and determination of CIL are of such a serious and institutionalized nature as to produce a presumptive distrust of any statement about what is or is not CIL. It argues that the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

A Mystery No Longer?Opinio Jurisand Other Theoretical Controversies Associated with Customary International Law

2017 ◽  
Vol 50 (3) ◽  
pp. 299-330 ◽  
Author(s):  
Omri Sender ◽  
Michael Wood
Keyword(s):  
International Law ◽  
Legal System ◽  
Customary International Law ◽  
Central Source ◽  
Subjective Element ◽  
International Legal System ◽  
A Current

Offering a current reflection on Raphael Walden's 1977 article, ‘The Subjective Element in the Formation of Customary International Law’, this contribution seeks to illustrate that considerable clarity has been achieved over the decades with regard to several long-standing questions associated with customary international law, not least those surroundingopinio juris. Accumulated practice and constructive scholarship have supplied insights into, and indeed answers to several of the controversies that have bedevilled the theory of this central source of international law. While it may inherently defy exact formulations, and some theoretical questions remain, customary international law is thus today not only as present in the international legal system as it has always been but is also better understood.

Customary International Law and the General Principles of Law Recognized by Civilized Nations

2019 ◽  
Vol 21 (3-4) ◽  
pp. 307-324
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Recent Work ◽  
Legal System ◽  
Customary International Law ◽  
General Principles Of Law ◽  
International Legal System ◽  
International Law Commission ◽  
The Relationship ◽  
Law Commission

Abstract This article looks beyond customary international law and asks whether the source of international law listed in Article 38, paragraph 1(c) of the ICJ Statute (‘the general principles of law recognized by civilized nations’) might join the dance. Is there a risk that general principles of law may be too easily invoked where no applicable treaty or rule of customary international law can be identified? In emphasizing the distinction between customary international law and general principles of law, the article first recalls relevant recent work of the International Law Commission. It then addresses the term ‘general international law’ and certain problems related to it, and raises questions concerning the relationship between customary international law and general principles of law. Before drawing some conclusions, reference is also made to the place of general principles of law within the international legal system.

Adjudicatory Jurisdiction and Public International Law

2020 ◽  
pp. 303-318
Author(s):  
Austen Parrish
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Foreign Relations ◽  
The United States ◽  
Public International Law ◽  
Customary International Law ◽  
Illegal Activity ◽  
International Legal System ◽  
Personal Jurisdiction

This chapter explores how the Fourth Restatement of the Foreign Relations Law of the United States charts a new, unexpected path in the area of adjudicatory jurisdiction. The Fourth Restatement breaks with common understandings to find that personal jurisdiction is not a concern of international law. It indicates that “with the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” The Fourth Restatement’s discussion of adjudicatory jurisdiction also appears to premise its conclusion on two unorthodox approaches to international law. First, it implies that fundamental structural limits of the international legal system can disappear unless states are vigilant in protesting illegal activity of other states. However, states are not required to persistently protest illegal activity, and it is far from clear that the absence of protests can nullify long-standing principles of sovereignty. Second, the Restatement appears to assume that states have unfettered authority absent a limiting customary rule. Yet international legal practice has not traditionally addressed jurisdictional questions that way.

A Glass Half Full?

2019 ◽  
Vol 21 (3-4) ◽  
pp. 283-306
Author(s):  
Fernando Lusa Bordin
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Reasoning ◽  
Customary International Law ◽  
Element Approach ◽  
International Legal System

Abstract Much has been said about the shortcomings of the two-element test for customary international law, the traditional methodology on which the ILC has focused in its recently completed study on the identification of custom. But custom as a source of law is notoriously elusive and slippery, and the deficiencies of the traditional methodology, for which there is no easy fix, are a reflection of a decentralised international legal system lacking a legislature and a system of courts with compulsory jurisdiction. The article offers some thoughts on the character of the two-element approach as an evaluative test, and the functions that it performs in structuring and constraining international legal reasoning in a way that safeguards the equality of States. By reflecting on the methodology’s constructive role, the article cautions against overly alarmist predictions that customary international law is a dancefloor.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

Introduction The customary law of human rights is hiding in plain sight

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International Law ◽  
Regional Systems ◽  
Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

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