The Discourse on Customary International Law

Textual Space ◽

Ancient Law ◽

Traditional Societies ◽

Discursive Constructions ◽

Law Making ◽

Modern Thinking

This book argues that it does not suffice to simply invoke and demonstrate the two constitutive elements of customary international law, practice and opinion juris, to successfully and plausibly make a claim under the doctrine of customary international law. Behind what may look like a very crude dualist type of legal reasoning, a fine variety of discursive constructions are at work. By unpacking these discursive constructions, the book depicts the discursive splendour of customary international law. It reviews eight discursive performances at work in the discourse on customary international law and makes a number of original and provocative claims about this aspect of law. For example, the book claims that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, the splendour of customary international law is everything but ancient. In fact, there is hardly any doctrine of international law that contains so many of the features of modern thinking. The book also puts forward the idea that all discursive performances of customary international law are shaped by texts, are articulated around texts, echo and continue pre-existing texts, unfold in a textual space, or, more simply, originate in a text-constituted environment.

6 Self-destruction

The Discourse on Customary International Law ◽

10.1093/law/9780192843906.003.0006 ◽

2021 ◽

Author(s):

d'Aspremont Jean

Keyword(s):

International Law ◽

The Self ◽

Legal Thought ◽

Modern Thinking

This chapter claims that international legal thought and practice are replete with self-destructive claims about customary international law. It discusses the discursive performance that mirrors a very common feature of modern thinking and commonly nurtured rejuvenation through self-defeat, highlighting international legal thought and practice that contain plenty of manifestations of discursive self destruction. It also mentions the discursive performance found in the discourse on customary international law. The chapter reviews the multiple materializations of the self-destructive moves in the discourse on customary international law. It shows that a discursive performance constitutes a mode of administering the doctrine of customary international law and that the repeated findings of malfunctioning of customary international law carry elaborate and fine representations.

The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

International and Comparative Law Review ◽

10.1515/iclr-2016-0027 ◽

2015 ◽

Vol 15 (1) ◽

pp. 7-57 ◽

Cited By ~ 1

Author(s):

Marija Đorđeska

Keyword(s):

International Law ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

The Icj ◽

International Law Commission ◽

The Relationship ◽

Law Making ◽

Law Commission

Abstract Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

REFLECTIONS OF CUSTOMARY INTERNATIONAL LAW: THE AUTHORITY OF CODIFICATION CONVENTIONS AND ILC DRAFT ARTICLES IN INTERNATIONAL LAW

International and Comparative Law Quarterly ◽

10.1017/s0020589314000220 ◽

2014 ◽

Vol 63 (3) ◽

pp. 535-567 ◽

Cited By ~ 7

Author(s):

Fernando Lusa Bordin

Keyword(s):

International Law ◽

Rule Of Law ◽

International Organizations ◽

Legal Reasoning ◽

Progressive Development ◽

State Practice ◽

Political Ideal ◽

International Law Commission ◽

International Rule

AbstractCodification conventions and draft articles completed by the International Law Commission are often—and increasingly—invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’. This article discusses the factors explaining the authority that these ‘non-legislative codifications’ have come to enjoy in international legal reasoning. Moving beyond the traditional explanations of codification conventions as evidence of State practice and ILC draft articles as the teaching of publicists, it considers how, against the backdrop of the uncertainty of customary international law, institutional factors (relating to authorship, representation and procedure) and textual factors (including prescriptive form and the absence of a distinction between ‘codification’ and ‘progressive development’) converge to convey the image that the resulting texts constitute the most authoritative restatement of the existing law. It then assesses this phenomenon in light of the political ideal of the international rule of law. While non-legislative codifications contribute to enhancing the clarity, consistency and congruence of international law, the fact that they may portray novel rules as reflecting existing law inevitably raises legality concerns.

International Law, Informal Law-Making, and Global Governance in Times of Anti-Globalism and Populism

The International Rule of Law ◽

10.1093/oso/9780198843603.003.0016 ◽

2019 ◽

pp. 242-264

Author(s):

Jan Wouters

Keyword(s):

International Law ◽

Global Governance ◽

First Century ◽

Public International Law ◽

Twenty First Century ◽

The Impact ◽

The chapter focuses on the impact of globalization on public international law in times of anti-globalism and populism, where globalization itself has increasingly become contested. It submits that traditional public international law has been dangerously unreceptive in capturing new transnational regulatory actors and normative dynamics, which makes it more vulnerable to anti-globalist and populist attacks. It looks into the corresponding rise and certain features of ‘informal international law-making’ and ‘global governance’, as they may offer some responses to, or at least some defences against, anti-globalist and populist politics. It also addresses the current challenges which traditional forms of international law-making, like treaties and customary international law, are currently going through. It concludes that public international law will have to adapt to both the challenges of globalization and anti-globalism, if it is to remain relevant in regulating international life in the twenty-first century.

Part IV Normative Evolution, Ch.21 The Law-Making Process: From Declaration to Treaty to Custom to Prevention

The Oxford Handbook of International Human Rights Law ◽

10.1093/law/9780199640133.003.0022 ◽

2013 ◽

Author(s):

Ramcharan Bertrand G

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

International Human Rights ◽

Human Rights Movement ◽

International Human ◽

The Law ◽

Preventive Role ◽

This article examines the international human rights lawmaking process. It analyses the sources and methods for the creation of norms and the transition from declarations and treaties to customary international law. It describes the drafting process for human rights declarations and conventions and offers a number of suggestions on how to improve human rights law-making. These include adopting a greater preventive role in the future and leaving the law-making process in the hands of members of the human rights movement.

Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

AJIL Unbound ◽

10.1017/aju.2018.47 ◽

2018 ◽

Vol 112 ◽

pp. 123-128 ◽

Cited By ~ 3

Author(s):

Margaret A. Young ◽

Andrew Friedman

Keyword(s):

International Law ◽

Biological Diversity ◽

The South ◽

East Atlantic ◽

Adaptive Approach ◽

Marine Biological ◽

National Jurisdiction ◽

Fragmentation Of International Law ◽

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”2). States have agreed that they will not “undermine” these existing frameworks.3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes.4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.

Application of Hegemony to Customary International Law: An African Perspective

Global Journal of Comparative Law ◽

10.1163/2211906x-00702002 ◽

2018 ◽

Vol 7 (2) ◽

pp. 232-271

Author(s):

Joycelin Chinwe Okubuiro

Keyword(s):

International Law ◽

Traditional Approach ◽

International System ◽

Great Powers ◽

Legal Traditions ◽

State Practice ◽

Global North ◽

African Perspective ◽

The perpetual reliance on the traditional approach to customary international law based on state practice and opinio juris arguably serves the hegemonic purposes of the great powers in the Global North. Such a traditional approach is out of step with reality in that it fails to reflect the polarised nature of the international system, as well as the activities of diverse non-state actors that shape international law-making. These observations support a reassessment of the formation of custom to include the interests of diverse legal traditions and actors in customary international law-making. In view of the above, this paper explores hegemony through Gramsci’s ideology in relation to customary international law from an African perspective.

A Disaggregative View of Customary International Law-Making

Leiden Journal of International Law ◽

10.1017/s0922156516000066 ◽

2016 ◽

Vol 29 (2) ◽

pp. 365-388

Author(s):

EMMANUEL VOYIAKIS

Keyword(s):

International Law ◽

Practical Problem ◽

Customary Law ◽

Fair Play ◽

Normative Force ◽

The Impact ◽

Customary Practices ◽

AbstractThis article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis.

7 Self-confirmation

The Discourse on Customary International Law ◽

10.1093/law/9780192843906.003.0007 ◽

2021 ◽

Author(s):

d'Aspremont Jean

Keyword(s):

International Law ◽

The Self ◽

Legal Rules ◽

Modern Thinking

This chapter talks about the move into self-confirmation as one of the most central discursive performances witnessed in arguments about customary international law. It explains that self-confirmation refers to the fact that testing the customary character of a rule entails an identity-check whereby the 'outside' world is interrogated according to a predetermined standard. It also mentions ascertaining practice and opinio juris amounts to a process of verifying a pre-existing representation of practice and opinio juris that is postulated by the rule whose customary status is being tested, demonstrated, or contested. The chapter considers self-confirmation as a common feature of modern thinking. It elaborates on the concrete implications of the self-confirmation at the heart of any argument about the customary status of international legal rules.

3. Locating law in the international system

The Politics of International Law ◽

10.1093/hepl/9780198791201.003.0003 ◽

2021 ◽

pp. 48-68

Author(s):

Nicole Scicluna

Keyword(s):

International Law ◽

International System ◽

The Body ◽

Legal Rules ◽

System P ◽

The Relationship ◽

Domestic Law ◽

Domestic Level ◽

This chapter examines the sources of international law. International legal rules are not as easily located as their domestic law counterparts. Whereas at the domestic level, only a relatively small number of bodies are endowed with law-making powers, at the international level, all states have law-making capacity. Moreover, state acts are not the only source of international legal rules. The result is a mosaic of law-making processes, forums, and regimes. The chapter focuses on the two most significant sources of international law: treaties and customary international law. It then turns to the relationship between international law-making and the principle of state sovereignty. Finally, the chapter considers the body of non-binding norms, which increasingly permeates and regulates all facets of international life. This so-called soft law takes many forms; it is often highly influential in its own right and may harden into binding law over time.