Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Talmon, Stefan

doi:10.1093/ejil/chv020

Cited by 128 publications

(18 citation statements)

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“…The ongoing debates about CIL as described in Ref. [9][10][11][12] was actually having its core as depicted in Fig. 4 in which this paper called as LWT-CL.…”

Section: Customary Law Associated With Five Integrated Aspects In Devmentioning

confidence: 95%

“…Conducting a breakthrough research work in social sciences associated with interdisciplinary fields [1][2][3][4] was very tough due to the compulsory needs of many different types of scientists to sit down together discussing a novel idea for improving social, customary, economy, and politics (SCEP) status of ordinary society [5] especially those who leave in complex small islands areas like Indonesia country in general with about 14,480 islands, and Maluku province in a particular as a prototype of it with ~1340 small physical beauty islands associated obviously with realism, idealism, dualism, and logical positivism in natural conservation laws [6][7][8]. In addition, a serious critics of the implementation of customary law (CL) in society, for example in the south part of Africa [9], as well as a complex debate of the understanding related to conceptual confusion and methodological deficiencies into CL in the international knowledge currently has received attentions among social scientists [10][11][12], for instance between J.L.…”

Section: Introductionmentioning

confidence: 99%

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Customary Law Associated with Five Integrated Aspects in Developing Traditional Coastal and Marine Protections for Improving Social People Life and Natural Products in Aru Islands Region of Maluku Province, Indonesia

et al. 2019

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“…The ongoing debates about CIL as described in Ref. [9][10][11][12] was actually having its core as depicted in Fig. 4 in which this paper called as LWT-CL.…”

Section: Customary Law Associated With Five Integrated Aspects In Devmentioning

confidence: 95%

Section: Introductionmentioning

confidence: 99%

Customary Law Associated with Five Integrated Aspects in Developing Traditional Coastal and Marine Protections for Improving Social People Life and Natural Products in Aru Islands Region of Maluku Province, Indonesia

et al. 2019

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“…For an overview of relevant issues, representing a range of opinion, see e.g. Cannizzaro and Palchetti (2005);; Corten (2010) 4-49;; Ruys (2010) 29-52;; Van Steenberghe (2015);; Talmon (2015);; Gray (2018) 9-26. See further the work of the ILC on the identification of customary international law, <http://legal.un.org/ilc/guide/1_13.shtml>.…”

Section: Methodology and Doctrinementioning

confidence: 99%

Necessity and Proportionality and the Right of Self-Defence in International Law

O'Meara¹

2021

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States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.

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“…For example, Birgit Schlütter claims that "various writings divided the bulk of theories produced on the formation of customary international law merely according to whether theoretical approaches favour either the element of opinio juris or the requirement of state practice, or both or neither". 31 Mendelson and Mullerson, and Byers are among the authors who underline the importance of practice in the formation of CIL. 32 Anthea Roberts, Bin Cheng and Michael Scharf are some of the many authors that could be labelled as representatives of those who emphasise the importance of opinio juris.…”

Section:  Customary International Law As a Formal Source Of International Lawmentioning

confidence: 99%

Nature of Customary international law: All we need is practice

Hrnjaz¹

2021

Pravni zapisi

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The main objective of this paper is to critically assess the dominant additive theory of the formation of Customary International Law by using the concept of discursive normative practice and the work of Gerald Postema. My central conclusion is that the use of this concept provides an explanation of the process of formation of Customary International Law that is superior to the additive theory which consists of two elements - practice and opinio juris. On the other hand, Postema's theory also has its own weaknesses, and this paper explores ways to improve it.

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Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Cited by 128 publications

References 0 publications

Customary Law Associated with Five Integrated Aspects in Developing Traditional Coastal and Marine Protections for Improving Social People Life and Natural Products in Aru Islands Region of Maluku Province, Indonesia

Customary Law Associated with Five Integrated Aspects in Developing Traditional Coastal and Marine Protections for Improving Social People Life and Natural Products in Aru Islands Region of Maluku Province, Indonesia

Necessity and Proportionality and the Right of Self-Defence in International Law

Nature of Customary international law: All we need is practice

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