Dr. Opinio Juris and Mr. State Practice: The Strange Case of Customary International Humanitarian Law

Annales Universitatis Scientiarium Budapestinensis de Rolando Eötvös Nominatae Sectio Iuridica, Vol. 46., pp. 373-394, 2006

12 Pages Posted: 5 Jan 2010 Last revised: 21 Feb 2015

See all articles by Tamás Hoffmann

Tamás Hoffmann

Corvinus University of Budapest; Hungarian Academy of Sciences CSS Institute for Legal Studies

Date Written: September 5, 2006

Abstract

The concept of international customary law is one of the most debated issues of international law. There is controversy regarding its constituent elements, the process of its formation, indeed, some authors even debate its very existence as a separate source of international law. On the other hand, as it was famously quipped by Hersch Lauterpacht “…if international law, in some ways, at the vanishing point of law, the law of war, perhaps even more conspicuously, at the vanishing point of international law.”

Putting together these constituent elements they form a potentially explosive mix – customary international humanitarian law. This paper attempts to decipher some of its riddles relying on a formalist methodology of the formation of customary international law. It first examines the major problems of customary international law – the problems of State practice and opinio juris and the weight that should be accorded to them and their relationship with treaties – then gives a brief overview of the practice of international judicial bodies. Finally, it analyses some parts of the recently published Customary International Humanitarian Law Study of the International Committee of the Red Cross.

Keywords: international humanitarian law, customary law, customary international humanitarian law, laws of war, laws of armed conflict, jus in bello

Suggested Citation

Hoffmann, Tamás, Dr. Opinio Juris and Mr. State Practice: The Strange Case of Customary International Humanitarian Law (September 5, 2006). Annales Universitatis Scientiarium Budapestinensis de Rolando Eötvös Nominatae Sectio Iuridica, Vol. 46., pp. 373-394, 2006, Available at SSRN: https://ssrn.com/abstract=1531678

Tamás Hoffmann (Contact Author)

Corvinus University of Budapest ( email )

Hungary

Hungarian Academy of Sciences CSS Institute for Legal Studies ( email )

Orszaghaz u 30.
Budapest, 1015
Hungary

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