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The Impact of Human Rights Law on General International Law$
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Menno T. Kamminga and Martin Scheinin

Print publication date: 2009

Print ISBN-13: 9780199565221

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199565221.001.0001

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Impact on the Process of the Formation of Customary International Law

Impact on the Process of the Formation of Customary International Law

Chapter:
(p.111) 6 Impact on the Process of the Formation of Customary International Law
Source:
The Impact of Human Rights Law on General International Law
Author(s):

Jan Wouters

Cedric Ryngaert

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199565221.003.0006

This chapter looks at the ‘human rights method’ of ascertaining customary international law, with its emphasis on opinio juris over state practice, with a favourable eye. It argues that while it is primarily a doctrinal construct, it actually draws support from the International Court of Justice's 1986 Nicaragua judgment. Section 2, drawing in particular on a study by the International Committee of the Red Cross, shows how this method works in practice in the field of international humanitarian law. Section 3 attempts to conceptualize the specific character of human rights and humanitarian customary law formation as opposed to classical positivist customary law formation. The final section focuses on the applicability of modern positivism beyond the strict human rights and humanitarian law fields. It argues that the more important the common interests of states or humanity are, the greater the weight that may be attached to opinio juris as opposed to state practice. If the stakes are high, inconsistent state practice may be glossed over, and a high premium may be put on states' statements and declarations, inter alia in multilateral fora, in identifying customary law combined with general principles of law.

Keywords:   Nicaragua judgment, customary international humanitarian law, human rights method, opinion juris, positivism

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