Chapter

From the "demands of humanity" : the formulation of opinio juris in decisions of international criminal tribunals and the need for a renewed emphasis on state practice

Noora Arajärvi

Reexamining customary international law

New York : Cambridge University Press, 2017

p. 189-229

English

This chapter explores the role of opinio juris in the process of identifying rules of customary international law. In particular, it focuses on examples of case law in the field of international criminal law to illustrate the fluidity of approaches by international criminal tribunals in identifying customary international law, as well as the indeterminacy of opinio juris within customary international law. It also argues that while some flexibility in the formulation of opinio juris is desirable, a rule of customary international law must be supported by actual state practice, as reaffirmed in the draft conclusions of the International Law Commission on identification of customary international law.

• Reexamining customary international law / ed. by Brian D. Lepard