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 of 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.
The International Law Commission appointed Sir Micheal Wood as Special Rapporteur concerning the issue of Customary International Law. One can read about his reports and his recommendations at this website.
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 systematic classification → Customary international law 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.
- Dumberry, P., The Formation and Identification of Rules of Customary International Law in International Investment Law, Cambridge, United Kingdom, Cambridge University Press, 2016.
- Green, J.A., The persistent objector rule in international law, Oxford, United Kingdom, Oxford University Press, 2016.
- 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.
- Peters, C., Praxis internationaler Organisationen - Vertragswandel und völkerrechtlicher Ordnungsrahmen, Berlin, Springer, 2016.
- 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.
- Chan, L., "The Dominance of the International Court of Justice in the Creation of Customary International Law", Southampton student law review, 6 (2016), No. 1, pp. 44-71.
- Dellapenna, J.W., "Customary International Law as the Rule of Decision in Human Rights Litigation in the US Courts", in Linton, S. (et al.)(eds.), For the sake of present and future generations: essays on international law, crime and justice in honour of Roger S. Clark, Leiden : Boston, Brill Nijhoff, 2015, pp. 473-506.
- Fry, J.D., "Formation of Customary International Law Through Consensus in International Organizations", Austrian review of international and European law, 17 (2015), pp. 49-82.
- Goldsmith, J., & Posner, E., A Theory of Customary International Law, in Simmons, B., International law, Los Angeles: SAGE, 2008, pp. 135-150.
- Kyriakopoulos, G.D., "Formation of International Custom and the Role of Non-State Actors", in Pazartzis, P. (et al.)(eds.), Reconceptualising the rule of law in global governance, resources, investment and trade, Oxford : Portland, Oregon, Hart Publishing, 2016, pp. 43-58.
- 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.
- Murphy, S.D., "Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission", American journal of international law, 109 (2015), No. 4, pp. 822-844.
- 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.
- Reinisch, A. and Bachmayer, P., "The Identification of Customary International Law by Austrian Courts", Austrian review of international and European law, 17 (2015), pp. 1-48.
- 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.
- Yee, S., "L' article 38 du Statut de la Cour internationale de Justice et le régime de droit applicable: Questions choisies et affaires récentes", Journal of international dispute settlement, 7 (2016), No. 2, pp. 499-529.
- Wood, M., Do International Organizations Enjoy Immunity Under Customary International Law?, in International Organizations Law Review, vol. 10, issue 2, 2013, pp. 287-318.
- Buisman, H.P.C.Customary international law: selective bibliography for the 70th session of the International Law Commission, The Hague, Peace Palace Library, 2017.
- Buisman, H.P.C., Selective Bibliography "Customary International Law & State Practice of France, Germany and the Netherlands", The Hague, Peace Palace Library, 2017.
Systematic classification → Customary international law
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Green, J.A., The Persistent Objector Rule in International Law, Oxford, United Kingdom, Oxford University Press, 2016.View this title in our link resolver Plinklet
The persistent objector rule is said to provide states with an 'escape hatch' from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallizes into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this monograph provides a detailed understanding of how the rule emerged and operates, how it should be conceptualized, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.
Cannizzaro, E., The Present and Future of Jus Cogens, Roma, Sapienza Università Editrice, 2015.View this title in our link resolver Plinklet
- The Security Council and Jus Cogens / Christian Tomuschat
- Le jus cogens, les mots et les choses : où en est le droit impératif devant la CIJ près d'un demi-siècle après s proclamation? / Pierre-Marie Dupuy
- On the Special Consequences of a Serious Breach of Obligations Arising out of Peremptory Rules of International Law / Enzo Cannizzaro
- La violation d'obligations envers la communauté internationale dans son ensemble et la compétence juridictionnelle de la Cour internationale de Justice / Béatrice I. Bonafé
Dumberry,P., The Formation and Identification of Rules of Customary International Law in International Investment Law, Cambridge, United Kingdom, Cambridge University Press, 2016.View this title in our link resolver Plinklet
Rules of customary international law provide basic legal protections to foreign investors doing business abroad. These rules remain of fundamental importance today despite the growing number of investment treaties containing substantive investment protection. In this book, Patrick Dumberry provides a comprehensive analysis of the phenomenon of custom in the field of international investment law. He analyses two fundamental questions: how customary rules are created in this field and how they can be identified. The book examines the types of manifestation of State practice which should be considered as relevant evidence for the formation of customary rules, and to what extent they are different from those existing under general international law. The book also analyses the concept of States' opinio juris in investment arbitration. Offering guidance to actors called upon to apply customary rules in concrete cases, this book will be of significant importance to those involved in investment arbitration.
Kolb, R., Peremptory International Law - Jus Cogens: a General Inventory, Oxford, Hart Publishing, Bloomsbury Publishing plc, 2015.View 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.
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