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

By Michael Byers | Go to book overview

8
Fundamental problems of customary
international law

Numerous attempts have been made to provide compelling answers to the many theoretical problems associated with customary international law. The number and differsity of these attempts and growing interest in the subject are indications of how the discipline of international law requires a more convincing rationalisation of the customary process as a whole.

Earlier in this book it was suggested that the process of customary international law involves the transformation of power into obligation in the form of customary rules. Power, by definition, is relational in character, and at least two aspects of this relational character are involved in the customary process. First, there are the relative abilities of different States to control or influence directly how other States behave, and, secondly, there are the relative abilities of power and legal obligation to affect each other.

It will become clear during the next three chapters of this book that many of the theoretical problems associated with the customary process are linked to the relational character of power. It is therefore somewhat surprising that so few international lawyers have considered directly the role played by power in the process of customary international law. As has already been explained, most of them have skirted the issue, sometimes acknofiledging the importance of power but rarely examining how power affects the development, maintenance and change of different customary rules.1

The discipline of international relations is an obvious source of ideas and insights for a study of power in the process of customary international law. International relations scholars are accustomed to questions of power, even if most of them have yet to appreciate fully the crucial difference between non-legal factors, such as power, and normative structures based on legal obligation, such as the process of customary

____________________
1
See pp. 15–18 and 46–50 above.

-129-

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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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