Identification of Customary International Law.

Format:

Book

Author/Creator:

Wood, Michael.

Contributor:

Sender, Omri.

Series:

Oxford International Law Library

Language:

English

Physical Description:

1 online resource (433 pages)

Edition:

1st ed.

Place of Publication:

Oxford : Oxford University Press, Incorporated, 2024.

Summary:

Identification of Customary International Law elaborates on the methodology for the identification of rules of customary international law and examines a host of questions concerning the process and evidence at issue. It complements the authoritative work of the ILC on this issue and draws upon a wealth of additional practice and writings.

Contents:

Cover

Series

Identification of Customary International Law

Copyright

Contents

Table of Cases

Table of International Instruments

List of Abbreviations

1. Introduction

1.1 Preliminary remarks

1.2 The aim of this book

1.3 The need for a rigorous approach to identifying customary international law

1.4 Terminology

1.5 Structure of the book

2. Custom as a Source of International Law

2.1 Introduction

2.2 The long history of customary international law

2.3 Article 38.1(b) of the Statute of the International Court of Justice

2.4 The continuing importance of customary international law

2.5 The limits of analogy with custom in domestic law

2.6 Customary international law and 'the general principles of law'

2.7 Access to evidence of customary international law

3. The International Law Commission's work on Identification of Customary International Law

3.1 Introduction

3.2 Inclusion in the programme of work

3.3 The first reading stage (2012-​2016)

3.4 The second reading stage (2018)

3.5 Reception of the Conclusions

3.6 Assessment

4. The Two-​element Approach

4.1 Introduction

4.2 The two-​element approach in the practice of States

4.3 The two-​element approach in the case law of the International Court of Justice

4.4 A uniform approach

4.5 A flexible approach

4.6 Change in existing rules of customary international law

4.7 Novel theories proposed by individual writers

4.8 'Interpretation' of customary international law?

5. Assessment of Evidence for the Two Constituent Elements

5.1 Introduction

5.2 Overall context

5.3 Nature of the rule in question

5.4 Particular circumstances in which the evidence is to be found

5.5 Considering the available evidence

5.6 Each of the constituent elements is to be ascertained separately.

5.6.1 Which constituent element comes first?

5.6.2 May the same material be used to ascertain both elements?

5.7 The two-​element approach does not preclude a measure of 'deduction'

5.8 Burden of proof?

6. A General Practice: Whose Practice? What Practice?

6.1 Introduction

6.2 The primary role of the practice of States

6.3 Conduct of the State as State practice

6.4 The practice of international organizations

6.4.1 The development of Conclusion 4, paragraph 2

6.4.2 What practice of international organizations may be relevant?

6.5 Conduct by actors other than States and international organizations

6.6 Forms of practice

6.6.1 Operational conduct 'on the ground'

6.6.2 Verbal practice

6.6.3 Decisions of national courts

6.6.4 National legislation

6.6.5 Conduct in connection with treaties

6.6.6 Conduct in connection with resolutions

6.6.7 Inaction as practice

6.7 Confidential practice

6.8 Assessing practice as a whole

7. A General Practice: Assessing Generality

7.1 Introduction

7.2 'Sufficiently widespread and representative'

7.2.1 Specially affected States

7.3 Consistent practice

7.3.1 Complete consistency is not required

7.4 Duration of the practice

8. Acceptance as Law (Opinio Juris)

8.1 Introduction

8.2 Meaning of 'acceptance as law'

8.3 A sense of legal right or obligation

8.4 Role and significance of acceptance as law

8.5 Distinguishing acceptance as law from other motives

8.6 Whose acceptance as law?

8.7 Evidence of acceptance as law

8.7.1 Public statements made on behalf of States

8.7.2 Official publications

8.7.3 Government legal opinions

8.7.4 Diplomatic correspondence

8.7.5 Decisions of national courts

8.7.6 Treaty provisions

8.7.7 Conduct in connection with resolutions

8.7.8 Failure to react.

8.7.9 Other forms of evidence

8.8 A general practice as evidence of acceptance as law

8.9 Evidence of acceptance as law by international organizations

9. The Significance of Treaties for the Identification of Customary International Law

9.1 Introduction

9.2 Treaty rules reflecting customary international law

9.2.1 Treaties not yet in force

9.3 A tripartite inquiry: codifying, crystallizing, generating?

9.3.1 A treaty rule codifying an existing rule of customary international law

9.3.1.1 The terms of the treaty

9.3.1.2 Drafting history of the treaty

9.3.2 A treaty rule crystallizing a rule of customary international law

9.3.3 A treaty rule generating a rule of customary international law

9.3.3.1 A provision of a 'fundamentally norm-​creating character'

9.4 General considerations to guide the examination

9.4.1 The extent of participation in the treaty

9.4.2 Taking account of the position of non-​parties

9.4.3 Reservations to the treaty

9.4.4 Denunciation clauses

9.4.5 Statements made subsequent to the conclusion of the treaty

9.5 A series of similar treaty provisions as evidence of customary international law

10. Resolutions of International Organizations and Intergovernmental Conferences as Evidence of Customary International Law

10.1 Introduction

10.2 Resolutions of international organizations and intergovernmental conferences cannot, of themselves, create rules of customary international law

10.3 Resolutions may sometimes provide evidence of customary international law

10.4 Resolutions as evidence of acceptance as law

10.5 Criteria for establishing whether a resolution provides evidence of customary international law

10.5.1 Content of the resolution

10.5.2 Circumstances of adoption

10.6 Resolutions as State practice or evidence thereof?.

10.7 Resolutions may provide impetus for the development of customary international law

11. Judicial Decisions and Teachings as Subsidiary Means for the Determination of Rules of Customary International Law

11.1 Introduction

11.2 Judicial decisions as evidence of customary international law

11.2.1 Decisions of international courts and tribunals

11.2.2 Decisions of national courts

11.3 The teachings of the most highly qualified publicists (la doctrine)

11.3.1 Meaning of the term 'teachings of the most highly qualified publicists of the various nations'

11.3.2 Significance of teachings as a subsidiary means for the identification of customary international law

11.3.3 The need for caution when consulting teachings

11.4 The place and role of the ILC's own output

12. The Persistent Objector Rule

12.1 Introduction

12.2 Evolution of the rule

12.3 Endorsement of the rule by the ILC

12.4 The systemic significance of the rule

12.5 Stringent requirements

12.6 The persistent objector rule and the requirement of a general practice

12.7 The persistent objector rule and jus cogens

13. Particular Customary International Law

13.1 Introduction

13.2 Place and scope of particular customary international law

13.3 Some notable cases

13.4 Particular customary international law not based on a geographical relationship

13.5 Stricter application of the two-​element approach

13.6 Burden of proof of particular customary international law

14. Concluding Observations

Annex 1: UN General Assembly resolution 73/​203 (2018)

Annex 2: ILC Conclusions on identification of customary international law, with commentaries (2018)

Bibliography

Index.

Notes:

Description based on publisher supplied metadata and other sources.

ISBN:

9780191882784

019188278X

9780192587602

0192587609

OCLC:

1467874531