Although the Special Rapporteur Manley Hudson identified instruments for proving custom quite a while ago,  there is no unified position or objective rules that would undoubtedly determine if a custom is created or from which moment and for which States it may be considered as an unquestionable source of law. The work before the Commission should result in the adoption of a practical guide  that would include rules relating to the procedure of proving customs, confirm instruments that are to be used as evidence and assist judges of both international and national courts in the course of their work.
From the methodological point of view, working on such a guide implies a long and comprehensive analysis of the jurisprudence of different international bodies, the ICJ in particular. The very manner in which the analysis is posited implicates an extremely wide field of research, since instruments that constitute evidence of customary law are varied and numerous and are to be found in both international and national law.
The publication of the International Committee of the Red Cross entitled "Customary International Humanitarian Law" serves as an indicator as to how long and serious the venture of evidencing customary law may be. The process of creating customary law is a specific legal construction in many respects.
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On the one hand, it represents a spontaneous undertaking due to the fact that States voluntarily subject themselves to a particular practice that is in accordance with their interests. On the other hand, it is an entirely atypical procedure if compared to the process of creating rules in national law since it implies an unwritten rule. The very moment in which the custom obtains the written form is usually after the act of crystallization. Thus in the case of custom, an organic process appears which is highly specific and difficult to incorporate into clear and objective rules.
That is why the decision of the Commission to work on the adoption of a guide for the practice of States rather than on the text of the convention should be considered as justified. At the Commission's sixty-fifth session the Special Rapporteur presented his first report on elements for proving custom. The Commission thus selected the following elements: general overview, State practice, subjective element of custom opinio j uris sive necessitatis , relevant practice of international organizations, relevant judgments and opinions of the doctrine.
In addition to these core areas, other important questions are also identified, such as the issue of the obligatory character of custom and its features in modern international law, the question of the creation of erga omnes rules, rules of jus cogens and their relationship with customary rules, as well as the relationship between universal customs and universal treaties. An important matter to be examined in the course of the examination of evidence in customary process is the issue of fragmentation of international law both ratione materiae and ratione loci.
Regarding the material aspect, views are expressed by various authors that autonomous legal regimes have started to appear such as international humanitarian law, human rights law and international criminal law. This would lead to the disintegration of the entire international legal regime, an exemption of peremptory rules and eventually it may undermine the general international legal order. Such a process would be dangerous and harmful in every respect. On the other hand, the process of making custom may be perceived through the emergence of comprehensive regional regimes, such as the European Union, where rules are established through special legal techniques and are applied in a manner which is not accepted in general international law.
There are views that rules of universal international law are unenforceable within ordre communautaire. As in the previous case, an exemption for such a regional legal order from the general international law would certainly be detrimental for the international community as a whole. The aim of the Commission's work is therefore justifiably reduced to creating clear indicators in the customary process, rather than giving the final judgment as to whether a particular rule has been established as a custom or not.
The ILC was particularly interested in the relationship between customary and imperative rules. As these rules mainly arose out of customary law, views were expressed that they should also be included in the guide. Even though their definition is contained in the Convention on the Law of Treaties,  jus cogens rules still provoke various controversies not only in practice but also and mainly in the doctrine of international law. There is no agreement as to which norms fulfilled the necessary conditions in order to be considered as peremptory norms.
However, there seems to be no doubt as regards their legal effect. On the other hand, if we observe positive international law, cogent norms are inevitable in the process of creating customs since they represent formal restrictions regarding trends in State practice and the very process of formation of new customary rules.
Some authors tend to interpret contemporary cogent norms as general customary law. Clearly, general customary law may, over time, lead to the creation of cogent norms.
Nevertheless, it is also apparent that not all general customary rules have so far reached the required level of imperativeness in order to be considered as jus cogens. The theoretical discord regarding rules of cogent character has led the members of the Commission to avoid including the issue of jus cogens in the scope of the present topic. As one of the unavoidable issues related to customary law, a question arises regarding its relationship with treaties. On the one hand, there is formal equality between them  , on the other hand there is a reverse relation in the sense that customary law often acquires written form through codification while treaties become part of general customary law.
The importance of custom in modern international law is perceived through ensuring the implementation of legal obligation in situations when certain rules of the treaty may apply to States which are not parties. The Convention on the Law of Treaties may serve as an example. During the Special Rapporteur's work on his first report it was suggested that the title of the topic was only provisional. Based on the discussions led in the Commission it was finally decided that the topic in the second report would be entitled "Identification of customary international law".
This is a welcome change since it better reflects the very essence of the Commission's work on the present topic, i. Due to the fact that States are the primary creators of customary process, comments provided by certain among them have already been received during the work on the second report. The subsequent work of the Commission is designed to adopt basic guidelines relating to fundamental elements of custom - practice and opinio j uris. As far as practice is concerned, it needs to meet certain requirements in order to qualify as a relevant constituent of custom.
Above all, it must emanate from the State. Such acts of the State need not necessarily be identical. In certain cases they may take the form of a legislative act, in other cases they might consist in press releases or be derived from a decision of the national court. Though it undoubtedly represents the position of the State in question, it can hardly be claimed that such acts also constitute practice suitable for creating custom since the animus of the State is missing.
The will of the State expressed by voting within an organ of an international organization reflects the adoption of the resolution, not the creation of a custom. This objection may be classified as material, even though from a formal point of view the State's will could be considered as suitable for the creation of practice attributed to it. It is also essential to distinguish between acts of State representatives performed in their official capacity when there are stronger grounds for attribution, and situations in which they act in a personal or professional capacity such as, for example, members of the ILC and expert groups, when their actions can in no way be treated as acts of States and therefore are of no relevance for the process of creating practice.
Since it is apparent that manifestations of practice may be quite different, there are situations in which a State, through its acts, expresses disparate or not quite identical positions. All of these different manifestations should be taken into account in a balanced way. Thus the ILC itself held that there is no hierarchy among elements of practice of the subject in question.
Universal or general customs require an additional criterion to be met which relates to the general character of practice. This is a specific condition which is interpreted in a relative manner by the organ that applies law, the ICJ in particular. The practice is required to bewidespread, which means that it encompasses States belonging to different regions, representative States and States whose interests are particularly affected.
Repetitive actions are thus essential for the formation of customary law. Naturally, actions can never be absolutely identical, nor are they always performed by the same actors. Circumstances also vary. However, the purpose of the action in question should in no way be changed. Nevertheless, a clear distinction should be made between consistent practice of States where minor deviations may be tolerated, and practice which is inconsistent enough to consider it an indication of the creation of a novel, different custom.
State practice as the first element of custom raises no major disagreements since it may be considered a measurable category. The second element, opinio j uris , is far more difficult to prove. It is often referred to as the subjective or qualitative element of custom. It actually points to a voluntary subordination to a particular rule of law, thus providing international law with a new evaluative dimension.
It is particularly difficult to distinguish between practice that creates custom and practice which is not eligible to form a rule of customary law. An effort is visible in the second report of the Special Rapporteur to detect tangible criteria that could serve as grounds for recognizing the existence of the subjective element in the process of formation of customary law. The report tends to suggest that opinio j uris is formed according to the interests of individual States. When national interests of a number of States match and they accordingly take identical or similar actions during an extended period of time, the subjective element of customary law is constituted.
Although this is a highly delicate issue, it seems that conclusions relating to the second element of custom ought to have been more specific in explaining how the subjective element should be recognized in practice. There is an expectation that the future work of the Commission will improve rules that have already been accepted and further shape the framework for the objective identification of customs in international law.
For the moment, however, the impression remains that the Special Rapporteur could have offered more through his reports, especially if we take into account the rich jurisprudence of the ICJ on this issue, but also abundant theoretical studies. Framework rules that have so far emerged from the report are not of much assistance for clarifying ambiguities which are inherent in the identification of customary international law. The principal judicial organ of the United Nations and its case law will surely be of particular significance for the present topic since members of the Commission expressed the view that the jurisprudence of the ICJ "may be considered the primary source of material on the formation and evidence of rules of customary international law".
Secondly, it will be argued that there is coherence in the jurisprudence of the Court as regards certain general issues relating to the identification of customs. The analysis has, however, shown an inconsistent approach of the Court regarding evidence of particular rules of customary international law. The last part of the paper will therefore review different approaches used by the Court in particular cases in order to prove the existence of a customary rule. First of all, the very wording of the topic to be discussed by the ILC seems to be tailored according to the Court's role in dealing with customary law.
The choice of the ILC regarding the title of the topic must have been heavily influenced by the Court and its contribution to the topic, since the Court only identifies customs, it does not create them. Secondly, the most accurate and widely accepted definition of international custom is contained in the Statute of the ICJ. Article 38 1 b defines custom as "evidence of a general practice accepted as law".
This observation relates to both the formal and material aspect of the definition contained in the ICJ's Statute. Namely, the two-element approach is well established in the case law of the Court and may be considered as a part of its "settled jurisprudence". The Commission itself obviously has no intention of departing from such an understanding of international custom.
Thirdly, the ILC insists on analyzing the influence that other sources of law may have in relation to evidence of customary international law. Weight to be accorded to particular acts, including acts qualified as soft law, is best perceived through the jurisprudence of the Court. Finally, in addition to the previous reasons which all relate, in one way or another, to the Court itself or its personal approach to identifying customary international law and may therefore be qualified as intrinsic in their nature, the last remark relating to the importance of the Court's case-law could be referred to as extrinsic.
The ILC clearly noted that State practice as an element of customary international law may, inter alia , be evidenced by States' arguments before international courts, ICJ in particular. Certain general aspects of customary international law have constantly been invoked by the ICJ in its judgments and must therefore be regarded as indisputable. As early as the PCIJ stated that international law emanates from, inter alia , "usages generally accepted as expressing principles of law". It is indicative to cite two quite recent judgments delivered by the Court. They may be taken as proof that perception of international customary law in the twenty-first century differs in no way from its conception adopted almost a century earlier.
In its judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite , the Court expressed the opinion that the prohibition of torture is a part of customary international law since it "is grounded in a widespread international practice and on the opinio juris of States". In the North Sea Continental Shelf cases the Court has not only insisted upon both "settled practice" and opinio juris , it has further elaborated on specific features that the two elements need to possess in order to be considered as candidates for the objective and subjective elements of custom.
Attention should, according to the Court, be devoted to the frequency and habitual character of acts, as well as the level of their excessiveness and virtual uniformity. It held that "in order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule".
The issue of opinio juris as the second necessary element of custom, has not, as opposed to State practice, received that much elaboration in the case-law of the Court. In the Nicaragua case the ICJ simply indicated that the existence in the opinio juris of States of the principle of non-intervention should be backed by established and substantial practice. Since it is implied in State practice and, therefore, needs to be deduced from it, the opinio juris element is, according to some authors, at the very root of all problems relating to the identification of customary international law.
The ICJ does not apply a single, uniform approach to the identification of rules of customary international law. The Special Rapporteur has so far made a distinction between two basic approaches, taking presence of a detailed analysis as the relevant criterion. Wood's differentiation neither reveals nuances in these two approaches which may be identified through a close examination of its case law, nor focuses on the very essence of the problem.
The relevant criterion should be qualitative, not quantitative. In general, the Court considers it crucial to "satisfy itself that the existence of the rule in the opinio juris of States is confirmed by the practice". It is quite often that the Court chooses not to enter into the complex and cumbersome process of investigating and evaluating State practice, but instead simply declares that a rule is to be considered as customary international law. Such a flexible or liberal approach, which will be referred to as "identification without evidence", may also vary from case to case and therefore, different categories of the first approach may be identified depending on the level of flexibility in the Court's approach.
In certain cases, the Court simply ascertains that a rule in question "reflects customary international law" without any additional reference to its previous case-law, State practice or other arguments. This approach, however, differs from the excessively flexible one by the Court's tendency to find some kind of support for its position, although this "support" can in no way be considered as evidence of either State practice or opinio juris.
For example, the Court has the habit of simply pointing to the position taken by the ILC as regards the customary character of a rule in question. It may be presumed that often the ILC has put in several decades of long work on a certain topic and can offer a research of State practice on a particular subject that the Court would never be able to either collect or examine during the course of proceedings in a case at hand. Another variation of the "identification without evidence" approach is reflected in the Court's reasoning that the fundamental character of a rule in question is in itself enough to identify it as customary law.
In the Advisory Opinion delivered by the Court in Legality of the Threat or Use of Nuclear Weapons , the ICJ claimed that "it is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity'" that they "are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law".
It seems to suggest that no particular State practice is necessary to be proven with regard to basic legal principles as customary international law.
In the case concerning Pulp Mills on the River Uruguay , the Court not only pointed out that "the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory" but also considered "that this obligation 'is now part of the corpus of international law relating to the environment'". First of all, the Court's approach to identifying rules of customary international law does not vary depending on the specificities of a particular field of law.
The Court will most probably use the flexible approach in certain areas of international law in which State practice has not so far reached the necessary level of coherence, but in relation to which there is common understanding in the international community as regards the importance of such basic principles.
However, the reason should be traced to the general and abstract nature of the rule, not the fact that it belongs to a specific area of international law. Secondly, the Court extended the customary effect of a rule in question to a new area of international law by simply invoking its previous statement on the subject.
It does not consider it necessary to conduct a novel procedure for identification of the customary nature of a rule in question with regard to the specific sphere of relations between States. As a leading scholar on humanitarian law, and President of the International Criminal Tribunal for the former Yugoslavia, Theodor Meron has observed and influenced the development of international criminal law as it has evolved from a mostly academic exercise to a cornerstone of the new international legal order. In this collection of speeches delivered during his first decade on the bench, he offers an insightful overview of the foundations of international criminal law as well as a unique insider's perspective on the challenges faced by international criminal tribunals, their creation of a corpus of substantive and procedural law, and the responsibilities of international jurists.
Judge Meron's experience in international criminal justice makes this volume as rewarding for experts as it is for the general public. All in all, this volume of speeches presents a rich and fascinating cornucopia for any reviewer, and it would be impossible to comment on all the important issues presented. Michael J. Matheson, American Journal of International Law. Convert currency. Add to Basket. Soft cover. Condition: New.
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Book Description Condition: New. US edition. Perfect condition. Customer satisfaction our priority. New Book. Shipped from UK. Established seller since Seller Inventory FU Customer Satisfaction guaranteed!!. Language: English. Brand new Book. Until recently, and with a few notable exceptions in the wake of World War II, violations of the laws of war and international humanitarian law were addressed primarily as claims between states. The International Criminal Tribunals for the formerYugoslavia and Rwanda have played a key role in this transformation and, as the trailblazers for a growing number of new international or hybrid criminal courts, in establishing the field of international criminal justice and encouraging the national prosecution of war crimes.
Understanding theTribunals' origins, their ground-breaking jurisprudence, and how they have addressed critical legal and practical challenges is essential to understanding both the revolution that has occurred over the past twenty years and how international criminal law will change and grow in the years ahead.
Related The Making of International Criminal Justice: A View from the Bench: Selected Speeches
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