Customary International Law
According to Article 38 of its Statute, the International Court of Justice 'whose function is to decide in accordance with international law such disputes as are submitted to it,' has to apply, inter alia, 'international custom.' This source of public international law is described, in the same Article, as 'evidence of a general practice accepted as law.' This description of international custom, even though it has been criticized for its exact formulation, at least makes clear that international custom generally refers to a description State practice, but only such practice as is accepted by the States themselves as legally required. Once a certain practice is understood to be customary law, States are obliged to act as the rule of customary international law prescribes. International customary law is probably the most disputed and discussed source of international law. For example, it is not clear when a particular State practice becomes a legally binding State practice. It is also unclear how one can identify a rule of international custom, or how one can prove its existence.
This Research Guide is intended as a starting point for research on Customary International Law. It provides the basic legal materials available in the Peace Palace Library, both in print and electronic format. Handbooks, leading articles, bibliographies, periodicals, serial publications and documents of interest are presented in the Selective Bibliography section. Links to the PPL Catalogue are inserted. The Library’s classification index code 30. Sources and subject heading (keyword) Customary International Law are instrumental for searching through the Catalogue. Special attention is given to our subscriptions on databases, e-journals, e-books and other electronic resources. Finally, this Research Guide features links to relevant websites and other online resources of particular interest.
- Bederman, D.J., Custom as a Source of Law, New York, NY, Cambridge University Press, 2010.
- Lepard, B.D., Customary International Law: A New Theory with Practical Applications, Cambridge, Cambridge University Press, 2010.
- Shaw, M.N., International Law, 7th ed., Cambridge, Cambridge University Press, 2014.
- Wolfke, K., Custom in Present International Law, Dordrecht, Nijhoff, 1993.
- D'Amato, A., The Concept of Custom in International Law, Ithaca, NY, Cornell University Press, 1971.
- Arajärvi, N., The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals, London; New York, Routledge, Taylor and Francis Group, 2014.
- Byers, M., Custom, power and the power of rules: international relations and customary international law, Cambridge, Cambridge University Press, 1999, XXII.
- Henckaerts, J.-M., and Doswald-Beck, L., Customary international humanitarian law / International Committee of the Red Cross (ICRC), Cambridge, Cambridge University Press, 2005, 2 volumes.
- Kolb, R., Peremptory International Law - Jus Cogens: a General Inventory, Oxford, Hart Publishing, Bloomsbury Publishing plc, 2015.
- Pedretti, R., Immunity of Heads of State and State Officials for International Crimes, Leiden, Boston, Brill Nijhoff, 2015.
- Thirlway, H., International customary law and codification : an examination of the continuing role of custom in the present period of codification of international law, Leiden, Sĳthoff, 1972, XII.
- Weatherall, T., Jus Cogens: International Law and Social Contract, Cambridge, Cambridge University Press, 2015.
- Ambos, K., Terrorism and Customary International law, in Saul, B., Research Handbook on International Law and Terrorism, Cheltenham, UK, Northampton, MA, USA, Edward Elger, 2014, pp. 20-38.
- Bufalini, A., The Principle of Legality and the Role of Customary International Law in the Interpretation of the ICC Statute, in The Law and Practice of International Courts and Tribunals, vol. 14, issue 2, 2015, pp. 233-254.
- Cannizzaro, E. (eds.), The Present and Future of Jus Cogens, Roma, Sapienza Università Editrice, Gaetano Morelli Lectures series, 2015.
- Goldsmith, J., & Posner, E., A Theory of Customary International Law, in Simmons, B., International law, Los Angeles: SAGE, 2008, pp. 135-150.
- Mejia-Lemos, D.G., Some considerations Regarding "Instant "International Customary Law", Fifty Years Later, in Indian Journal of International Law, vol. 55, issue 1, 2015, pp. 85-108.
- Orrego Vicuna, F., Customary International Law in Action: from the International Minimum Standard to Fair and Equitable Treatment, in H.Hestermeyer, Coexistence, Cooperation and Solidarity : liber amicorum Rüdiger Wolfrum, Leiden [etc.], Nijhoff, 2012, pp. 181-197.
- Roberts, A., Traditional and Modern Approaches to Customary International Law, in Ku, Ch., & Diehl, P., International law : classic and contemporary readings, Boulder, CO, Lynne Rienner, 2009, pp. 49-75.
- Scharf, M. P., Accelerated Formation of Customary International Law, in ILSA Journal of International and Comparative Law, vol. 20, issue. 2, 2014, pp. 305-341.
- Taki, H., Opinio Juris and the Formation of Customary International Law : a Theoretical Analysis, in German yearbook of international law, vol. 51, 2008, pp. 447-466.
- Talmon, S., Determining Customary International Law: the ICJ's Methodology between Induction, Deduction and Assertion, in European Journal of International Law, volume 26, issue 2, 2015, pp. 417-443.
- Verdier, P-H., Voeten, E., Precedent Compliance, and Change in Customary International Law: an Explanatory Theory, in American Journal of International law, vol. 108 issue 3, 2014, pp. 389-434.
- Yee, S., Report on the ILC Project on "Identification of Customary International Law, in Chinese Journal of International Law, vol. 14 issue 2, 2015, pp. 375-398.
- Wood, M., Do International Organizations Enjoy Immunity Under Customary International Law?, in International Organizations Law Review, vol. 10, issue 2, 2013, pp. 287-318.
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Kolb, R., Peremptory International Law - Jus Cogens: a General Inventory, Oxford, Hart Publishing, Bloomsbury Publishing plc, 2015. Showcase itemView this title in our link resolver Plinklet
Given the literature in the field of jus cogens one might ask what could possibly be added to the body of literature already existing in field? Robert Kolb, one of the leading international scholars of his generation, offers a seminal survey of the question of peremptory international law. The book analyses and systemises courts’ diverging approaches, and draws a typology of techniques for judicial protection afforded to individuals affected by UNSC measures. On the basis of this analysis, the book identifies the discrepancies with the international human rights law standards and proposes solutions. The study pays special attention to the persisting problem with the targeted sanctions regime, which is that the grounds and evidence on the basis of which individuals are designated remain largely confidential. The book suggests an amendment to the present UNSC procedure, which would mitigate this problem. This important book is essential reading for all scholars of the subject.
Weatherall, T., Jus Cogens: International Law and Social Contract, Cambridge, Cambridge University Press, 2015.View this title in our link resolver Plinklet
One of the most complex doctrines in contemporary international law, jus cogens is the immediate product of the socialization of the international community following the Second World War. However, the doctrine resonates in a centuries-old legal tradition which constrains the dynamics of voluntarism that characterize conventional international law. To reconcile this modern iteration of individual-oriented public order norms with the traditionally State-based form of international law, Thomas Weatherall applies the idea of a social contract to structure the analysis of jus cogens into four areas: authority, sources, content and enforcement. The legal and political implications of this analysis give form to jus cogens as the product of interrelation across an individual-oriented normative framework, a State-based legal order, and values common to the international community as a whole.
Pedretti, R., Immunity of Heads of State and State Officials for International Crimes, Leiden, Boston, Brill Nijhoff, 2015.View this title in our link resolver Plinklet
Ramona Pedretti offers, for the first time, a comprehensive assessment of the rules of customary international law relating to immunity of Heads of State and other State officials in the context of crimes pursuant to international law and their relationship with core principles of international law. The book gives the reader a full picture of this topical issue which is located at the heart of today's development of international law. It contains an in-depth evaluation of a vast amount of relevant material, ranging from domestic laws to judicial decisions of domestic and international courts. The fact that the International Law Commission is deliberating the issue with a view to drafting an international treaty underscores the book's importance and timeliness.
Bernstein, L., Parisi, F. (eds.), Customary Law and Economics, Cheltenham, UK, Northampton, MA, USA, Edward Elgar, 2014.View this title in our link resolver Plinklet
Customary law has been the subject of intense debate and the issues arising from the intersection of customs and the law are far from settled. This volume, separated into three parts brings together seminal work from scholars in law, economics and history. The first section analyses various perspectives on the history of customary law. Part two focuses on the commercial customary law and includes a number of case studies covering the role and limits of customary systems in a variety of commercial settings. The final section explores the role of custom in international law from a variety of legal and economic perspectives.
Barrat, C., Status of NGOs in International Humanitarian Law, Leiden, Boston, Brill Nijhoff, 2014.View this title in our link resolver Plinklet
In Status of NGOs in International Humanitarian Law, Claudie Barrat examines the legal framework applicable to NGOs in situations of armed conflict. The author convincingly demonstrates, contrary to convention, that in addition to the ICRC, the National Societies and the IFRC, numerous other NGOs referenced in humanitarian law treaties have a legal status in IHL and therefore legitimate claim to employ IHL provisions to respond to current challenges. On the basis of clear and thorough definitions of these entities, Barrat argues that existing NGOs meeting stringent definition can benefit from customary rights and obligations in both international and non-international armed conflict.
Arajärvi, N., The Changing Nature of Customary International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals, London; New York, Routledge, Taylor and Francis Group, 2014.View this title in our link resolver Plinklet
This book examines the evolution of customary international law (CIL) as a source of international law. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) as a key case study, the book explores the importance of CIL in the development of international criminal law and focuses on the ways in which international criminal tribunals can be said to change the ways in which CIL is formed and identified. In doing so, the book surveys the process and substance of CIL, as well as the problematic distinction between the elements of state practice and opinio juris. By applying an inclusive positivist approach, Noora Arajärvi analyses the methodologies of identification of CIL in selected cases of the ICTY, and their normative foundations. Through examination of the case-law and the reasoning of courts and tribunals, Arajärvi demonstrates to what extent the court's chosen method of identification of CIL affects the process of custom formation and the resulting system of norms in general. The book will be of great value to researchers and scholars of international law, international relations, and practitioners with interests in customary international law.
Happy Retirement Ingrid!
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