6 Self-destruction

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

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.

9 The Residual Receptacle

This chapter explores customary international law that is constantly approached as the residual receptacle for international legal obligations that cannot be grounded in treaty law. It highlights the discursive performance that presupposes a sort of fetishization of the treaty as the first go-to source of international law as well as the idea that customary international law is second-best. It also cites the discursive performance that led some observers to claim that customary international law has become the generic category for practically all binding non-treaty standards. The chapter draws on international human rights law and international criminal law and highlights the discursive performance that is witnessed by customary international law. It formulates some observations on the consequences for general principles of law of the common understanding of customary international law as a residual receptacle for non-treaty international legal obligations.

11 Concluding Remarks: The Splendid Textuality of Customary International Law

This chapter reviews the discourse on customary international law that is splendid thanks to the myriad of discursive performances that are achieved each time a claim is made about customary international law. It analyzes the anatomic account of the discourse on customary international law that contributed to an image of customary international law as a sophisticated doctrine whereby its users perform all kinds of discursive feats. It also demonstrates that textuality does not have the monopoly on discursive splendour in international law. The chapter argues that textuality is everywhere in customary international law notwithstanding as it is commonly understood as a source of unwritten law. It emphasizes that the discursive splendour of customary international law is neither a-textual nor pre-textual but rooted in the very textual materializations of customary international law.

5 The Practicians

This chapter reviews the dominant approach in which customary international law gets in validity, its legality, its consistency, and its factuality from practice and opinio juris. It investigates the presumptive character of the moment where practice and opinio juris coalesce and generate customary international law, which must be ascribed a genitor. It also emphasizes that as long as practice and opinio juris have a sufficient number of genitors, they can be conducive to the formation of customary international law. The chapter talks about practicians as the genitors of the practice which customary international law must emanate from, such as those that produce the actual behaviours (practice sensu stricto) and the beliefs (opinio juris) that are generative of customary international law. It outlines the determination of the practicians of customary international law as a discursive performance that is commonly and repeatedly witnessed in debates about customary international law.

3 The Third Element

This chapter focuses on the norm-creating character of the standard whose customary status is tested as another possible constitutive element of customary international law. It examines the third constitutive element of customary international law, which is the common recognition by international law of the enormous definitional powers to the International Court of Justice when it comes to the custom-identification criteria. It also explores the discursive performance that consists of the constant turning of a blind eye to a specific claim made by the Court in the 1969 North Sea Continental Shelve. The chapter highlights the 1969 North Sea Continental Shelf wherein the Court confirmed the dualistic approach and the consciousness of having a duty may be in order to offer an articulate definition of opinio juris for the first time. It argues that the requirement that the standard whose customary status is tested must be norm-creating as it was prescribed by the Court in the North Sea Continental Shelfcase.

2 The Enabling Constraint

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.

7 Self-confirmation

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.

4 The Custom-making Moment

This chapter zeroes in on the postulation of a moment in the past where the social reality actually engendered the norm as the discursive performance that is required for customary international law to be grounded in social reality. It discusses the grounding of customary international law in a social reality captured through practice and opinio juris that can only be upheld if there was a moment in the past where the practice and opinio juris of states have coalesced in a way that generates customary international law. It also argues that the actual moment where social reality has engendered a customary norm is never established or traced but is always presupposed. The chapter points out that the moment customary international law is made is located neither in time nor in space. It elaborates how customary international law is presupposed to have been made through actors' behaviours at some given point in the past and in a given place.

1 Introduction: The Modern Splendour of Customary International Law

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.