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Summary Issue 2

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  • June 30, 2023
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Probleem 2 – The use of cluster munition in armed conflict

Leerdoelen:

Leerdoel 1: What is customary international law?

Leerdoel 2: What is the relationship between treaty and custom (or what if a treaty norm collides with a
customary international law rule? What if they coexist?)

Leerdoel 3: How should a treaty be interpreted?

Boek 1: International Law, hoofdstuk 2.4 en 3.9

Leerdoel 1: What is customary international law?

 Customary international law: binds all states and arises when the objective and subjective conditions are
fulfilled.
 Objective condition: a general practice among states.
 There has to be a consistent repetition of a particular behaviour. This means that for a
considerable period of time states have acted in a certain manner when confronted with the same
facts.
 Act of a state: three elements:
 Consistency: requires that practice is reasonably uniform.
 Duration: practice generally evolves slowly and gradually over time, often through years
of repeated behaviour.
 Generality: practice should include the majority of states. The practice by states whose
interests are specially affected is particularly relevant.
 Subjective condition: the belief that the practice is legally binding. Opinion juris sive necessitatis.
 Purpose: differentiate between acts motivated by a desire to honour, a legal obligation and other
acts.
 Evidence of the opinion juris is only looked for if there is reason to believe that particular
behaviour stems from non-legal motivations.
 There is a distinction(=onderscheiding) between behaviour at a time when a particular rule begins
to be formed and behaviour at a time when it has already been established.
 Relevant when a state acts contrary to an existing customary rule.
 Exception: not binding when a state persistently(=aanhoudend) objects.
 Also binding when a state has not taken part in the formation of the practice.
 Don’t need to be universal.

Leerdoel 2: What is the relationship between treaty and custom (or what if a treaty norm collides with a
customary international law rule? What if they coexist?)

 When a treaty codifies customary international law, the parties to the treaty are bound by both the treaty
and customary international law, while non parties are only bound by customary international law.
 Crystallizing effect: treaty-based obligations are identical to obligations in customary law when the content
of the treaty develops into customary law. They then complement and reinforce each other.
 When a treaty contains elements of codification of existing customary law and progressive developments,
non-parties are bound by the former.
 When state practices develops along the lines of the progressive parts of the treaty, then it may also
become binding as customary international law on the non-parties.

Leerdoel 3: How should a treaty be interpreted?

 When the obligations in a treaty and customary law are not identical, a conflict can be avoided through
interpretation.
 When a treaty is a deliberate(=beraadslagen) act of law-creation, it normally prevails(=heerst) over the
custom between the parties to the treaty.
 Lex posterior: which is later in time prevails.
 Lex specialis: when there is a conflict between a norm of a general and one of a more detailed
character.

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