Summary Extensive elaboration problem 2 Introduction to International and European Law
9 views 1 purchase
Course
Introduction To International And European Law
Institution
Erasmus Universiteit Rotterdam (EUR)
Here you will find the extensive elaborations of the learning objectives of problem 2 of Introduction to International and European Law.
Books used:
- A. Henriksen, International Law (third edition)
- Cases and Materials International and European Union Law
relation between customary international law and treaties
customary international law
Written for
Erasmus Universiteit Rotterdam (EUR)
Rechtsgeleerdheid
Introduction To International And European Law
All documents for this subject (35)
Seller
Follow
Marco05
Reviews received
Content preview
Problem 2
What is customary international law?
The absence of an international ‘law-maker’ has made custom an important source of
international law and many well-known legal principles and rules are derived from custom.
International customary law arises when a particular way of behaving is:
1. Followed as a general practice among states (objective element)
2. Accepted by those states as legally binding (subjective element)
A customary rule binds all states, even the ones that did not take part in the formation of the
practice, unless a state persistently objects to such rule. Customarily international law can
also develop regionally between a particular group of states.
The objective element
Before a specific pattern of state behaviour becomes legally binding, it must be ‘the way
things are done’. This requires a consistent repetition of a particular behaviour or act.
What counts as an act? Both physical acts (e.g., conduct of a military operation) and verbal
acts (e.g., diplomatic statement, press release etc.) count as acts, but verbal acts must be
public. Internal documents for example do not count as an act.
State practice can be divided into three elements:
1. Consistency
2. Duration
3. Generality
Consistency requires a practice to be reasonably uniform and constant. In Nicaragua is
stated that it is not expected that states act with complete consistence. As long as the
practice is generally consistent with the rule and inconsistency is by and large treated as a
breach of the rule, rather than recognition of the rule, the conduct may suffice.
For duration, practice generally evolves slowly and gradually over time, often through years
of repeated behaviour. The ICJ stated in the North Sea Continental Shelf Cases, the passage
of only a short period in time is not necessarily, in itself, a bar to the formation of a new rule
of customary law.
In situations of rapid change, state practice may be formed in a very short time potentially
paving the way for the creation of so-called ‘instant custom’, for instance after the 9/11
attacks.
Generality means that the majority of states should participate in practice of the custom,
but unanimity is not required. In the North Sea Continental Shelf Cases was determined that
the practice by states whose interests are specially affected is most relevant.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller Marco05. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $4.88. You're not tied to anything after your purchase.
