The Theory, Practice and Interpretation of Customary International Law

International Law

The Theory, Practice and Interpretation of Customary International Law

Edited by Panos Merkouris · Jörg Kammerhofer, Noora Arajärvi
Cambridge University Press April 2022

Specifications

ISBN-13
9781316516898
Publisher
Cambridge University Press
Publication
April 2022
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

Although customary international law (CIL) has been central to international law from its inception, it is often misunderstood. This edited volume remedies that problem by tracing the history of CIL and provides an in-depth study of its theory, practice, and interpretation. Its chapters tackle the big questions which surround this source of international law such as: what are the rules that regulate the functioning of CIL as a source of international law? Can CIL be interpreted? Where do lines between identification, interpretation, application, and modification of a rule of CIL lie? Using recent developments, this volume revisits old debates and resolves them by proffering new and innovative solutions. With detailed examples from international and national courts, it places CIL in a range of settings to explain, explore and reflect upon this developing and highly significant field.

Table of Contents

Part I. The Theory of Customary International Law: Fault Lines and the Need for New Approaches:
1. Between pragmatism and disenchantment: The theory of customary international law after the ILC Project
Jörg Kammerhofer
2. The custom-making moment in customary international law
Jean d'Aspremont
3. Misinterpreting customary international law: Corrupt pedigree or self-fulfilling prophecy?
Noora Arajärvi
4. The logic of absence in customary international law: An open-system approach
Anna Irene Baka
5. Schrödinger's custom: Implications of identification on the interpretation of customary international law Markus P. Beham
Part II. Customary International Law as a Source of International Law: Doctrine and History:
6. The significance of state consent for the legitimate authority of customary international law Andreas Føllesdal
7. Custom and the regulation of 'the sources of international law'
Diego Mejía-Lemos
8. The ILC's new way of codifying international law, the motives behind it, and the interpretive approach best suited to it
Luigi Crema
9. Beyond formalism: Reviving the legacy of Sir Henry Maine for customary international law
Andreas Hadjigeorgiou
10. Enkapsis and the development of customary international law: An encyclopedic approach to inter-legality
Romel Regalado Bagares
Part III. The Practice of Customary International Law Across Various Fora: Diversity of Approaches and Actors:
11. Customary international law in the reasoning of international courts and tribunals
Vladyslav Lanovoy
12. Eureka! On courts' discretion in 'ascertaining' rules of customary international law
Letizia Lo Giacco
13. Identification of and resort to customary international law by the WTO Appellate Body
Mariana Clara De Andrade
14. The practice of non-state armed groups and the formation of customary international humanitarian law: Towards direct relevance?
Zhuo Liang
15. Identifying custom in universal periodic review recommendations
Frederick Cowell
Part IV. Interpretation of Customary International Law: Delineating the Stages in its Life Cycle:
16. Interpreting customary international law: you'll never walk alone
Panos Merkouris
17. Practical reasoning and interpretation of customary international law
Kostiantyn Gorobets
18. Different strings of the same harp: interpretation of rules of customary international law, their identification and treaty interpretation
Marina Fortuna
19. Customary international law: identification versus interpretation
Riccardo Di Marco
20. 'And in the darkness bind them': hand-waving, bootstrapping, and the interpretation of customary international law after Chagos
John R. Morss and Emily Forbes
Part V. Customary International Law in the Practice of Domestic Courts: What Lessons for International Law?:
21. The role of domestic courts in the interpretation of customary international law: how can we learn from domestic interpretive practices?
Nina Mileva
22. Customary international law interpretation: the role of domestic courts
Cedric Ryngaert
23. The relevance of customary international law in the domestic legal order of a federal state
Gerhard Hoogers
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