Despite claims to the contrary, and to paraphrase Mark Twain’s famous quip, the rumours of customary law’s death have been greatly exaggerated – customary international law remains alive and well. Nowadays, international law seems to be going through a similar process as mathematics did in the 19th century. In order for international legal scholarship to progress, we need to go back to its theoretical foundations. We need to identify, critique and discuss the axioms on which the system is based, as well as the rules under which these building-blocks of the international legal system function.
There is still much to do before we can understand customary international law in all its complexity. One reason is that most analysis tends to focus on the process of emergence and identification of a rule of customary international law, through the dichotomous requirements of state practice and opinio iuris, with all the shortcomings and pitfalls that it entails. Yet, customary international law as a source raises other questions, too. Can we speak of ‘rules’ in this context (what is the nature of customary law)? What is the foundation for the sources of international law in general and customary law, in particular? Do we conflate the determination of a rule of customary international law with the determination of its content?
The First ECTPIL and TRICI-Law Conference will draw on these and other under-researched questions, such as:
- What are the rules, if we can talk about rules, that regulate the functioning of sources of international law and of customary international law in particular?
- Is the classical paradigm of state practice and opinio iuris still valid today?
- Are there alternative approaches that can offer a better model describing the emergence and functioning of rules of customary international law?
- Can customary international law be interpreted? Are rules of customary international law open to interpretation in the same way as treaty rules?
- Do domestic approaches to customary law differ from those in international legal scholarship? What lessons can be learned (or tools adopted) from domestic approaches to customary law?
- Is hermeneutics relevant to customary international law?
- Is there a difference between the interpretation of state practice compared to the interpretation of a rule of customary international law?
- Where do the lines between identification, interpretation, application and modification of a rule of customary international law lie?
