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

Global Community: Yearbook of International Law and Jurisprudence (2015)

Amsterdam Center for International Law No. 2016-08

Amsterdam Law School Research Paper No. 2016-18

42 Pages Posted: 5 Apr 2016

See all articles by Jean d'Aspremont

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School

Date Written: 2015

Abstract

This article sheds light on those 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 built by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. On that occasion, this study demonstrates that the traditional derivation of the two-element doctrine of customary law from the Statute of the Court rests on a false genealogy. This article goes on to show how this modern two-element doctrine proved deficient from the start, generating huge argumentative problems. Such problems – and the general inoperability of the two-element doctrine – did not, however, undermine the popularity of custom among international lawyers thanks to a wide array of virtues traditionally associated with customary international law. These virtues explain the impressive resolve and determination of international lawyers to vindicate or patch up the modern two-element doctrine of customary international law. Yet, as the last part of this article argues, the rescue of customary international law by international lawyers may prove counter-productive as it currently is accelerating the decay of the modern two-element doctrine of customary international law. The article ends with a few observations on the life and death of doctrines.

Keywords: custom, international law, customary international law, sources, practice, behavior, normativity, sliding scale, article 38, secondary rules, Bentham, modern custom, substantive custom, systemic custom

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, The Decay of Modern Customary International Law in Spite of Scholarly Heroism (2015). Global Community: Yearbook of International Law and Jurisprudence (2015) ; Amsterdam Center for International Law No. 2016-08; Amsterdam Law School Research Paper No. 2016-18. Available at SSRN: https://ssrn.com/abstract=2756904 or http://dx.doi.org/10.2139/ssrn.2756904

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

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