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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Customary International Law: The Yesterday, Today, and Tomorrow of General International Law

Customary International Law: The Yesterday, Today, and Tomorrow of General International Law

(p.147) 12 Customary International Law: The Yesterday, Today, and Tomorrow of General International Law
Realizing Utopia

Luigi Condorelli

Oxford University Press

Three developments may be observed in current international relations. First of all, in fact courts, and in particular the International Court of Justice, tend to attach overriding importance to opinion juris over usus. Secondly, at present a broad correspondence can be found between general customary rules and those provisions written down in large international conventions of (basically) universal character. Thirdly, among customary rules of international law some have emerged that have a special legal force: they may not be derogated from by treaty law. There are three possible ways of improving upon the current role of customary law. First, the widely lamented fragmentation of international law in separate and self-contained legal regimes, in fact depends, in large measure, on the as it were ‘fragmented eye’ of the observer, rather than on the fragmentation of the observed object. Hence, the best way to counter this fragmentation would reside in training practitioners in general international law, rather than in (or in addition to) specialist areas. Secondly, it is necessary to promote compliance with jus cogens, by ensuring that all members of the international community have effective tools at their disposal for the removal of treaties affecting the fundamental rights of each and all. Thirdly, mechanisms should be put in place for monitoring compliance of Security Council decisions with the principles of the UN Charter including jus cogens.

Keywords:   international relations, International Court of Justice, customary law, jus cogens

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