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

By Michael Byers | Go to book overview

11
Conclusions

An interdisciplinary approach to the study of customary international law may over many ideas and insights both to international lawyers and to international relations scholars. It may, for example, enable us better to understand the origins of the process of customary international law — and thus of obligation within the international legal system — by seeing that process as but one of many similar customary processes which have existed, and continue to exist, in many different societies, at various levels of social, political and legal development.1

More specifically, an interdisciplinary approach to customary international law may change the way we think about 'system consent', that is, the idea that States have consented to the entire process of customary international law rather than to each individual rule by which they are bound.2 The members of the various societies within which customary processes operate clearly have differing degrees of awareness as to their own participatory role in the development, maintenance and change of customary rules. In some societies such 'law-makers' may only become aware that a customary law process is operating once other law-makers begin to rely on some of the resulting rules in contentious situations. It is therefore possible that customary processes do not even need to be based on the consent of the law-maker to a pre-existing set of 'secondary' or 'constitutional' rules.3 Instead, a customary law process may be seen to evolve out of a social process, as a society creates a legal system and thereby recreates itself.4 If the process of customary international law developed in this way, the reliance by States on customary rules — and their acknofiledgment of the possible validity of other States' claims

____________________
1
For studies of customary legal processes other than the process of customary international law see, e.g., Reid (1980); Comaroff and Roberts (1981); Reisman (1983); and Weyrauch and Bell (1993).
2
See pp. 142–6 above.
3
See pp. 142–6 above. Lowe ((1983a) 209) has written, in respect of the international legal system, that '[t]he secondary rule of law-creation in question will itself be a rule of customary international law derived … from state practice'.
4
See generally: Allott (1990).

-204-

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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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