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Customary law – basic issues

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

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Customary law – basic issues

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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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