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

By Michael Byers | Go to book overview

10
Related issues

The previous chapter has explained opinio juris as being those shared understandings which enable States to distinguish between legally relevant and legally irrelevant State practice. This explanation of opinio juris was then developed in terms of its implications for several other, fundamental problems associated with the process of customary international law. This chapter extends the analysis yet further by exploring the insights that might be derived, on the basis of such an explanation, in respect of four other, related issues of importance: (i) the relationship between customary international law and treaties; (ii) the concept of persistent objection; (iii) jus cogens; and (iv) the relationship between jus cogens and erga omnes rules.


Customary international law and treaties

It is generally accepted that there are three primary sources of international law, namely, treaties, customary international law and general principles of law.1 Of these three sources, the first two — treaties and customary international law — are considered much the more important.

Like the process of customary international law, treaties are a kind of regime or institution.2 Consequently, to study the relationship between treaties and customary international law is to study the relationship between two different kinds of regimes or institutions. This is something which most international relations scholars have yet to do, having instead focused their attention on the relationship between particular regimes or institutions and States.3 In contrast, international lawyers have deffoted a great deal of attention to the relationship between treaties, rules of customary international law and certain other kinds of institutions, such as, the United Nations and other international organisations.4 However, rel-

____________________
1
See Art. 38 (1) of the Statute of the International Court of Justice; Brownlie (1990) 1–31; Danilenko (1993); and Dinh et al. (1994) 111–390.
2
See pp. 24–31 above.
3
See note 19, p. 25 above.
4
See, e.g., Kelsen (1951); Bowett (1982b); Charpentier (1991); and Simma (1994).

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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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