Custom, Power, and the Power of Rules: International Relations and Customary International Law

By Michael Byers | Go to book overview

9
International relations and the process of
customary international law

In thinking about the chronological paradox, the problem of State practice, the epistemological circle and the problem of inferred consent, it may help to consider the customary process from the perspective of international relations theory. Before doing so, it bears repeating that this book does not set out a new normative theory of customary international law.1 Instead, it seeks to cast light on traditional, theoretical problems of customary international law by considering factors which are not strictly legal in character.

On the basis of the definitions provided by Keohane and Young, the process of customary international law is clearly an institution. In Keohane's terms, it is a persistent and connected set of informal rules which prescribe behavioural roles, constrain activity and shape expectations.2 In Young's terms, it is an identifiable social convention which results from the convergence of patterned behaviour and actor expectations, and to which States conform without making elaborate calculations on a case-by-case basis.3 The similarities between Young's definition of institutions and traditional definitions of customary international law, namely the convergence of State practice and opinio juris, are striking.4

The process of customary international law would also seem to fit within the scope of the well-known definition of international regimes provided by Krasner et al., namely, 'sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors' expectations converge in a given area of international relations'.5 Perhaps most importantly, it seems to fit comfortably within that strand of institutionalist writing which has explored the concept of epistemic communities.6 As Wendt has explained:

____________________
1
See pp. 15–18 above.
2
See pp. 27–9 above.
3
See pp. 29–30 above.
4
See p. 130 above. Yet Young has been somewhat inconsistent in his definition of institutions. He has also defined them as 'behaviorally recognizable practices consisting of roles linked together by clusters of rules or conventions governing relations among the occupants of these roles' (Young (1989) 196). Actor expectations are not a part of this latter definition.
5
Krasner (1983) 2. See p. 24 above.
6
See p. 141 above.

-147-

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Custom, Power, and the Power of Rules: International Relations and Customary International Law
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Foreword ix
  • Preface xi
  • Acknowledgments xiv
  • Table of Cases xvi
  • Table of Treaties xix
  • Abbreviations xxi
  • Part 1 - An Interdisciplinary Perspective *
  • 1 - Law and Power 3
  • 2 - Law and International Relations 21
  • 3 - Power and International Law 35
  • Part 2 - International Law and the Application of Power *
  • 4 - The Principle of Jurisdiction 53
  • 5 - The Principle of Personality 75
  • 6 - The Principle of Reciprocity 88
  • 7 - The Principle of Legitimate Expectation 106
  • Part 3 - The Process of Customary International Law *
  • 8 - Fundamental Problems of Customary International Law 129
  • 9 - International Relations and the Process of Customary International Law 147
  • 10 - Related Issues 166
  • 11 - Conclusions 204
  • Bibliography 222
  • Index 247
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