1 Introduction: The Modern Splendour of Customary International Law

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Creative Process ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Thought ◽  
Formal Requirement

This chapter depicts the discursive splendour of customary international law, which is portrayed as a splendid mechanism by virtue of the sophisticated discursive performances it enables and demands. It introduces the success and plausibility of any argument about customary international law in international legal thought and practice that commonly hinge on a myriad of discursive performances. It also sheds light on the discursive splendour of a legal doctrine that is too often perceived as miserably simple, plain, or malfunctioning doctrine. The chapter provides an overview of the discursive performances of customary international law, which are construed as responses to the formal requirement of ascertaining the constitutive elements of customary international law. It elaborates how the customary international law provides international law with a law-creative process that is not dependent of the adoption of a formal written instrument.

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

6 Self-destruction

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
The Self ◽  
Customary International Law ◽  
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.

10 The Empire of Rules

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Customary International Law ◽  
Legal Thought ◽  
The Law ◽  
Rule Making

This chapter considers the constant deference to the idea of rule as the most ordinary discursive performance witnessed in the discourse on customary international law. It examines how the idea of rule dominates most arguments about customary international law, be them pertaining to the identification of customary international law or to the law that has been identified as having a customary status. It also cites the custom-formative process and the product of that process that are understood in terms of rules in international legal thought and practice. The chapter describes customary international law as a rule-governed rule-making process wherein there are rules on the identification of customary international law as well as rules of customary international law. It formulates some observations on the pull of the ruleness witnessed in the discourse on customary international law.

2 The Enabling Constraint

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
20Th Century ◽  
Customary International Law ◽  
Legal Thought

This chapter recounts the rise, consolidation, and fluctuation of the enabling constraint of the discourse on customary international law. It sets the stage for the discussion of the discursive performances that enabling constraint has prompted in international legal thought and practice. It also talks about the distinction between the two elements of customary international law: practice and opinio juris, which corresponds to a form of dualist thinking that came to thrive with modernity. The chapter describes dualist thinking about customary international law as a constraint that was formalized in the middle of the 20th century and that does not necessarily correspond to any ancient mode of thinking about customary international law. It shows that the dualist approach to the identification of customary international law has undergone a few variations over the last hundred years but uncontested in international legal thought and practice.

scholarly journals Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law

2019 ◽  
Vol 19 (2) ◽  
pp. 97-115 ◽  
Author(s):  
Agata Kleczkowska
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Current State ◽  
Protection Of Human Rights ◽  
State Actors

Summary The paper explores the problem of the formation of the ‘(quasi-) customary law’, as a source of law created by, or contributed to by armed non-state actors (ANSAs). It argues that, despite some views presented in the doctrine of international law, claims of a quasi-customary international law are without foundation in the current state of international law. The paper is divided into three parts. The first part presents the views of legal doctrine concerning the customary law as contributed/created by non-state actors. The second section argues that ANSAs do not form practice and opinio juris which would allow them to create their ‘own’ customary law. The final part presents the possible challenges and consequences of including ANSAs in the process of formation of customary international law as created by States. In summary the conclusions posit that it could be potentially very harmful for international humanitarian law and the protection of human rights.

Constitutional policy of law of modern Russia: ideas, priorities, values, directions

2018 ◽  
Author(s):  
Павел Баранов ◽  
Pavel Baranov ◽  
Алексей Овчинников ◽  
Aleksey Ovchinnikov ◽  
Алексей Мамычев ◽  
...  
Keyword(s):  
International Law ◽  
Public Administration ◽  
Public Life ◽  
Political Extremism ◽  
Legal Doctrine ◽  
Legal Policy ◽  
Russian State ◽  
The Russian Federation ◽  
Political Economic ◽  
Comprehensive Study

The monograph is a comprehensive study of the nature, content and priorities of the constitutional and legal policy of the Russian state. The authors identify and analyze various elements of the constitutional legal doctrine (value-normative, socio-political, economic, international law, spiritual and moral, etc.), as well as the directions of its development in Russia in the XXI century. Constitutional and legal policy is considered in the context of modern problems of national and religious security, in the sphere of combating political extremism, corruption, network wars, etc.the analysis of practical issues related to the implementation of constitutional and legal policy in various spheres of state and public life is Carried out. The publication is aimed at specialists in the field of law, political science, public administration. The book can also be used in the study of such disciplines as "Constitutional law of the Russian Federation", "Legal policy of the modern state", " Fundamentals of national security»

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