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Customary Law: From Development to Application

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  1. Customary law – basic issues • Basic features of customary law • No procedure or formalities related to adoption • Lack of clarity regarding conditions for existence • Lack of clarity regarding the content of rules • Recent developments in the ways states communicate • Natural law and positivist perspectives on customary law • Positivist: Consent: State practice, opinio juris and persistent objector • Natural law: Jus cogens, general principles, universality

  2. Elements of customary law I • ICJ Statute art. 38: “as evidence of a general practice accepted as law” • When does “custom” attain the status of “customary law”? • Practice – objective element • How long-lasting? ICJ Fisheries case, Reports 1951, North Sea continental shelf case, Reports 1969 • How uniform? ICJ Nicaragua case, Reports 1986 • How wide-spread? ICJ Asylum case, Reports 1950 • Minimum requirements or overall assessment? ICJ North Sea continental shelf case, Reports 1969 • What constitutes evidence of State practice?

  3. Elements of customary law II • Opinio juris – subjective element • Is this a mandatory requirement? • Exclude the relevance of certain kinds of practice? ICJ Asylum case • What constitutes evidence of opinio juris? • Emphasis on practice or opinio juris? • Practice: slow and grounded development • Opinio juris: faster and more politically oriented development • Persistent objector

  4. Substantive rules of customary int’l law • Jus cogens • Illegality of genocide, torture, ethnic cleansing, … • Fundamental principles of int’l law • Art. 2 of UN Charter • Declaration on Friendly Relations • Declaration on Human Rights • Rio Declaration on Environment and Development • “Secondary rules” • The law of treaties • State responsibility for unlawful acts, ILC Draft Articles • Other examples • Rules on expropriation • The obligation to prevent harmful activities

  5. Customary law and treaties • To what extent are treaties codification of customary law? • The role of the International Law Commission and the UN General Assembly • To what extent can treaties exempt from rules of customary law? • To what extent can customary law exempt from treaties? • To what extent does customary law contribute to the interpretation of treaties?

  6. Customary law and general principles • The issue of ”non liquet” • Rejection of ”non liquet” as an option for the ICJ • But: Obligation to negotiate: ICJ North Sea continental shelf case, Reports 1969 • The issue of formal requirements for customary law • Not the same requirements for general principles? • The relationship between international law and domestic law • Borrowing from the domestic systems – ICJ Barcelona Traction, Reports 1970

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