Impact on the Process of the Formation of Customary International Law

Jan Wouters and Cedric Ryngaert

in The Impact of Human Rights Law on General International Law

Published in print February 2009 | ISBN: 9780199565221
Published online May 2009 | e-ISBN: 9780191705281 | DOI:
 Impact on the Process of the Formation of Customary International Law

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This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is primarily a doctrinal construct, it actually draws support from the International Court of Justice's 1986 Nicaragua judgment. Section 2, drawing in particular on a study by the International Committee of the Red Cross, shows how this method works in practice in the field of international humanitarian law. Section 3 attempts to conceptualize the specific character of human rights and humanitarian customary law formation as opposed to classical positivist customary law formation. The final section focuses on the applicability of modern positivism beyond the strict human rights and humanitarian law fields. It argues that the more important the common interests of states or humanity are, the greater the weight that may be attached to opinio juris as opposed to state practice. If the stakes are high, inconsistent state practice may be glossed over, and a high premium may be put on states' statements and declarations, inter alia in multilateral fora, in identifying customary law combined with general principles of law.

Keywords: Nicaragua judgment; customary international humanitarian law; human rights method; opinion juris; positivism

Chapter.  11722 words. 

Subjects: Human Rights and Immigration

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