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The Global Community Yearbook of International Law and Jurisprudence 2015$
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Giuliana Ziccardi Capaldo

Print publication date: 2016

Print ISBN-13: 9780190647759

Published to Oxford Scholarship Online: November 2016

DOI: 10.1093/acprof:oso/9780190647759.001.0001

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The Decay of Modern Customary International Law in Spite of Scholarly Heroism

The Decay of Modern Customary International Law in Spite of Scholarly Heroism

Chapter:
(p.9) The Decay of Modern Customary International Law in Spite of Scholarly Heroism
Source:
The Global Community Yearbook of International Law and Jurisprudence 2015
Author(s):

Jean d’Aspremont

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190647759.003.0002

This article examines the conceptual artifices that made international custom—and behaviorally generated normativity—possible in international law and shows how international lawyers’ repeated fixes and sophistications have come to precipitate the decay of the modern way of organizing the behavioral generation of legal normativity in international law. After a few introductory considerations on the notion of custom and behaviorally generated normativity from a jurisprudential perspective, this article describes how the two-element doctrine of custom—that is what is called here ‘modern custom’—was articulated by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. It also demonstrates that the problems of this modern two-element doctrine did not undermine the popularity of custom among international lawyers.

Keywords:   Article 38, sources of international law, customary international law, modern custom, normativity, secondary rules, practice, sliding scale, substantive custom

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