Identification of Customary International Law in the Works of the United Nations International Law Commission

Genowefa Grabowska

doi:10.1515/wrlae-2018-0033

Abstract

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Highlights

The custom and customary law enjoy a very special place both in the theory and practice of international law that can hardly be compared to their place in any other legal system
Because of that the custom and customary law play a dual role in the international law system
1 Article 38 International Court of Justice (ICJ): 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

Summary

INTRODUCTION

The custom and customary law enjoy a very special place both in the theory and practice of international law that can hardly be compared to their place in any other legal system. That is why the importance of article 38 of the ICJ Statute goes beyond the purely procedural aspect - it has a substantive meaning and constitutes a commonly recognized basis for the catalogue of the sources of international law This leads to the fundamental question, i.e. are the types of legal norms quoted in article 38 listed in the hierarchical order? The reference to international custom as a proof of a "practice commonly accepted as law" has become a clear guideline on how to interpret "common practice" and when such common practice will be "accepted (recognized) as the law" Both academics and the courts, when relating to article 38, have examined the elements of the custom, looking for. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2 See famous works of Professor Karol Wolfke: ‘L’Elément subjectif dans la coutume international’, in Zeszyty Naukowe Uniwersytetu Wrocławskiego, Seria A, No 27, Prawo (1960) 161-170; “Some Persistent Controversies Regarding Customary International Law”, (1993) Netherlands Yearbook of International Law 24; Custom in Present International Law” (2nd edition 1993); ‘Treaties and Custom: Aspects of Interrelation’, in J Klabbers, R Lefeber (eds), Essays on the Law of Treaties: A Collection of Essays In Honour of Bert Vierdag (1998)

LAW IN THE WORKS OF THE UNITED NATIONS

FINAL REMARKS