Talk:Customary international law

Basis for removal

I have deleted the folowing from the page:

---

"sources"

Sources for claim US government accepts customary international law:

1. State Department has publicly stated they accept the VCLT as customary international law, even though the United States has not ratified it
2. State Department has publicly stated they agree with most of the UNCLOS provisions as binding on US under customary international law, even though the US has not ratified it
3. US has ratified the UN charter, which endorses the existence of customary international law

Sources for (2): US State dept. cable states that: "WHILE THE UNITED STATES IS NOT YET A PARTY TO UNCLOS, AS ANNOUNCED IN THE PRESIDENT'S UNITED STATES OCEANS POLICY STATEMENT OF MARCH 10, 1983, THE UNITED STATES WILL EXERCISE AND ASSERT ITS NAVIGATION AND OVERFLIGHT RIGHTS IN A MANNER THAT IS CONSISTENT WITH THE BALANCE OF INTERESTS REFLECTED IN UNCLOSE AND ACCEPTS THE CONVENTION AS DECLARATIVE OF CUSTOMARY INTERNATIONAL LAW THE GOS IS A PARTY TO UNCLOS" (http://www.state.gov/documents/organization/6844.doc)

See also numerous other state dept. statements

---

Is there any source suggesting customary international law is not a valid source of law or that the USA ever questioned it as such? Need one look further than Article 38, Statute of the International Court of Justice, which the USA has ratified?

--Lucifer(sc) 12:29, 26 March 2006 (UTC)

"Simple" definition

Is there a way to give more prominence to the third paragraph, where the most enlightening text about what the laws are about is? --Atavi 18:17, 27 September 2006 (UTC)

I have expertise in this subject and have it on my list of articles to contribute to. There isn't a lot more to say, but better organization would improve it. Lagringa 18:46, 27 September 2006 (UTC)

Humanitarian intervention

unilateral humanitarian intervention can hardly be considered a rule of customary international law. For one thing it is not accepted by most states as custom -see statements of G77 stating their opposition to the bombing of Kosovo. Moreover article 2 (4)of the UN Charter prohibits the use of force. This is recognised as a customary norm of jus cogens and therefore new exceptions such as humanitarian intervention would need to reach a much higher threshold of acceptance before they could become recognised as custom

Custom found more in positivist systems, not under a natural law philosophy

I believe the following statement is incorrect:

• Customary international law is based on a natural law, in the belief that the principles contained therein are (or can be traced back to principles which are) universal and indisputable.

Although the existence of opinio juris must be coupled with practice, that is not the same as belief that the duty comes from natural law. Keep in mind that custom in domestic systems is found predominantly in civil law tradition systems, most of which stem in some way from the French (Napoleonic Code) or the German systems, or at least claim to. These are positivist systems, or at least the jurists in those systems largely rely upon legal positivism as the basis for their sources of domestic law. See John Henry Merryman, The Civil Law Tradition, p. 23 (Stanford University Press, 2d Ed. 1986) or toward the end of the chapter on Sources of Law if a different edition. Sorry, forgot to log in before signing InMyHumbleOpinion (talk) 02:29, 30 May 2008 (UTC)

I agree with you, don't recall ever seeing that, and have removed the statement. If you see something dmub, just WP:Be bold and get rid ot it.John Z (talk) 05:25, 30 May 2008 (UTC)

To Do: Both Sources of international law and Customary international law Sections

This is both a personal to do list, as well as a proposal list, so if it looks like any of this is off, please say. But I do feel there are glaring holes between these two articles.

• Explain that custom can be bilateral and any range of multilateral from three states to regional to general. Currently, the articles only discuss general customary international as if that's all there is or can be. Though that may be what's discussed in the more well known cases, international custom is not all or nothing with regard to how many states are bound by it.

• Explain how treaties can create or recognize existing custom better, and distinguish between the two. This may be just how I'm looking at it now, but it seems as if the Sources of international law article is suggesting that treaties can create a customary norm oustide of the normal mechanism rather than as a part of the normal mechanism. That is the signing and ratifying the right sort of treay is a practice that reflects the ratifying state believes there is a legal obligation to follow certain or all terms even without the treaty. Treaties do not create customary norm except in so far as they constitute evidence of practice and opinio juris.

• Discuss silence as practice/opinio juris. For the Customary International Law article, expand discussion of practice and opinio juris generally. The section on custom in the Sources of international law seems to have more than the Customary international law.

• Note origin in domestic practice of Civil law (legal system) jurisdictions.

More coming when I have access to a charged computer and the time. InMyHumbleOpinion (talk) 02:37, 30 May 2008 (UTC)

See also

With regard to removing universal jurisdiction from the see also section (and this article's link from that article's see also section), I did that because universal jurisdiction is premised upon something more than custom, it is usually reserved for jus cogens/peremptory norms. That is already linked in the introduction of this page. Certainly custom alone is not a basis for universal jurisdiction and so really doesn't belong in the see also section.

Also, I specified public international law instead of just international law in the link, as the customary international law really only plays part in the former. IMHO (talk) 19:23, 13 August 2008 (UTC)

James Patrick Kelly reference removed

I did that, because a quick check of a summary of the listed reference here shows that the nature of the article is advocative against the legitimacy of CIL. While it may be appropriate to work in criticism from the article into the body, assuming they're not fringe, and assuming we can get a main body about CIL before it's criticisms, a blanket inclusion as "Further reference" is misleading. IMHO (talk) 21:09, 27 February 2009 (UTC)

Nuremberg trials

The page is really good, considering that the subject matter is so tricky! But shouldn't the Nuremberg trials be references in the article? It is the first time (that I know of) that a court recognized customary international law to be binding on non-signatories. ImTheIP (talk) 18:27, 4 August 2017 (UTC)

Persistent objectors

I have found this article suggesting that ICJ no longer recognizes persistent objectors as not being bound by customary international law. If somebody is familiar with the nuances involved, I think it would be worth updating the article. 72.95.255.28 (talk) 11:06, 6 March 2023 (UTC)

I'm not a lawyer and I have not read hrough the article you linked in detail, but I see that it cites this source, titled Anglo Norwegian Fisheries Case (Summary on Customary International Law). That includes a section headed 2.5. Who is a Persistent Objector? (Updated) that goes on to present some details re that. That cited source appears to be dated April 22, 2011. Some googling led me to [https://www.icj-cij.org/public/files/press-releases/0/000-20191101-STA-01-00-EN.pdf this, dated 1 November 2019 and titled STATEMENT OF H.E. MR. ABDULQAWI AHMED YUSUF, PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE BEFORE THE SIXTH COMMITTEE OF THE GENERAL ASSEMBLY that discusses this a bit. Paragraph 11 there introduces "the persistent objector doctrine, Para 23 says, "even if General Assembly resolutions are not formally binding, they can, in certain circumstances, provide important evidence of the existence of a rule or the emergence of an opinio juris." Para 30 includes a statement saying, "Thanks to the jurisprudence of the Court, unilateral acts of States are now well-established sources of international law. In the same vein, the Court has established the important role that multilateral conventions and the resolutions adopted by the General Assembly can play in the emergence of customary rules of international law." Other paras there discuss how actions of a State regarding General Assembly resolutions which bear on matters where that State is a persistent objector may bear on that State's status in that regard. -- or that's how I read it, but Ican't say that I really understand it. I hope this comment is of some use. Wtmitchell (talk) (earlier Boracay Bill) 22:22, 6 March 2023 (UTC)