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

By Michael Byers | Go to book overview

1
Law and power

The International Court of Justice has observed that international law is not a static set of rules, that it undergoes 'continuous evolution'.1 The evolution of international law is a subject that has absorbed international lawyers for centuries, for, among other things, the way in which law develops and changes clearly determines the rules that are applicable today.2 This book addresses one particular characteristic of the evolution of international law, namely that it does not occur in a legal vacuum, but is instead circumscribed and regulated by fundamental rules, principles and processes of international law. One such process is the process of customary international law, which is also referred to here as the 'customary process'. This process governs how one particular kind of rules — rules of customary international law — is developed, maintained and changed.3

Unlike treaty rules, which result from formal negotiation and explicit acceptance, rules of customary international law arise out of frequently ambiguous combinations of behavioural regularity and expressed or inferred acknofiledgments of legality. Despite (or perhaps because of) their informal origins, rules of customary international law provide substantive content to many areas of international law, as well as the

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1
Barcelona Traction Case (Second Phase) (1970) ICJ Reports 3, 33.
2
For an historical overview, see Wilhelm Grewe, The Epochs of International Law (trans. Michael Byers) (Berlin: Walter de Gruyter, 1999).
3
On the distinction between custom as process and custom as rules, see, e.g., Sur (1990) 1er cahier, 8; and pp. 46–50 below. This book focuses on the customary process as it operates in respect of generally applicable rules. The process may operate in a similar but more restricted manner in respect of rules of special customary international law. Special customary international law involves rules which apply among limited numbers of States, often as exceptions to rules of general customary international law. States within such a limited group remain governed by any generally applicable rule in their relations with any States outside that group. Special customary international law is sometimes referred to as 'regional customary international law' because it often develops among States which are in geographical proximity to one another. However, issues which are particular to limited numbers of States and therefore likely to attract special customary rules are not always confined to single regions. For explanations of special customary international law, see Cohen-Jonathan (1961); Guggenheim (1961); D'Amato (1969); Akehurst (1974–75a) 28–31; and Sur (1990) 2e cahier, 3 and 12–13.

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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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