Dr. Opinio Juris and Mr. State Practice : the strange case of customary international humanitarian law
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Annales universitatis scientiarium Budapestinensis de Rolando Eötvös nominatae sectio iuridica, Vol. 46, 2006, p. 373-394
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.