Customary International Law: A New Theory with Practical Applications
Customary international law, although long recognized as a primary sources of international law, remains replete with enigmas, both conceptual and practical. These include how to determine the existence of opinion juris, the function of the state practice requirement, the definition of jus cogens customary norms, and the relationship between customary international law and ethics. In part because of these enigmas, the subject has generated a wide-ranging literature. However, no recent...
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Customary international law, although long recognized as a primary sources of international law, remains replete with enigmas, both conceptual and practical. These include how to determine the existence of opinion juris, the function of the state practice requirement, the definition of jus cogens customary norms, and the relationship between customary international law and ethics. In part because of these enigmas, the subject has generated a wide-ranging literature. However, no recent book-length work has attempted to articulate a comprehensive theory of customary international law that can effectively resolve these questions.This book sets out to accomplish this goal. Its approach is unique in a number of ways. For example, it is multidisciplinary and draws insights from fields such as legal theory, philosophy, political science, and game theory. In addition, it is anchored in a sophisticated ethical framework and explores at length the interconnections between customary international law and ethics.
Figures xiAcknowledgments xiiiCases xvpart 1 The Enigmas of Customary International Law1 The Need for a New Theory 32 Some Conceptual Enigmas 143 Some Practical Enigmas 30part 2 Foundations of A New Theory of Customary International Law4 Clarifying the Concept of Authoritative International Legal Norms 475 Fundamental Ethical Principles and Customary International Law 77Part 3 Resolving The Conceptual Enigmas of Customary International Law6 Toward a New Normative Theory of Customary International Law 977 A New Understanding of Opinio Juris 1128 The Function of the State Practice Requirement 1229 Ethics and Customary International Law 14010 Democratic Principles and Customary International Law 15111 The Relationship Between Customary International Law and General Principles of Law 162Part 4 Resolving The Practical Enigmas of Customary International Law12 General Sources of Evidence of Opinio Juris 17113 The Role of Treaties as Evidence of Opinio Juris 19114 The Role of United Nations General Assembly Resolutions as Evidence of Opinio Juris 20815 The Role of Consistent State Practice 21816 The Persistent Objector Exception 22917 Defining Jus Cogens Customary Norms 24318 Defining Erga Omnes Customary Norms 26119 Resolving Conflicts with Treaties 27020 Changing Customary International Law and the Role of International Organizations 277Part 5 Some Applications of The Theory21 International Rules on Allocating Income for Tax Purposes 28522 International Human Rights Law in General 30623 Determining the Customary Law Status of Specific Human Rights 33124 The Right to Change One's Religion or Belief346Part 6 The Future Of Customary International Law25 Customary International Law as a Dynamic Process 371Bibliography 381Index 397
