The Discourse on Customary International Law

ISBN : 9780192843913

Jean d' Aspremont
192 Pages
139 x 216 mm
Pub date
Jun 2021
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Along with treaties, custom is one of the sources of international law. It is known to consist of two elements: state practice and opinio juris. While many studies have looked at traditional questions of how to identify customary law, this book takes a new and original approach. It looks instead at the structure of thought that lies beneath the arguments about customary international law. By examining these structures, the book uncovers surprising conclusions, and demonstrates what the author describes as the 'discursive splendour' of customary international law. The book guides the reader through an analysis of eight distinct performances at work in the discourse on customary international law. One of its key claims is that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, customary international law is anything but ancient, and there is hardly any doctrine of international law that contains so many of the features of modern thinking. It is also argued that, contrary to mainstream opinion, customary international law is in fact shaped by texts, and originates from a textual environment. This book provides an engaging account of customary international law, whilst challenging readers to rethink their understanding of this fundamental part of the discipline.


1 Introduction: The Modern Splendour of Customary International Law
2 The Enabling Constraint
3 The Third Element
4 The Custom-Making Moment
5 The Practicians
6 Self-Destruction
7 Self-Confirmation
8 System-Support
9 The Residual Receptacle
10 The Empire of Rules
11 Concluding Remarks: The Splendid Textuality of Customary International Law

About the author: 

Jean d'Aspremont is Professor of International Law at Sciences Po School of Law. He also holds a chair of Public International Law at the University of Manchester where he founded the Manchester International Law Centre (MILC). He is General Editor of the Cambridge Studies in International and Comparative Law and of Oxford International Organizations (OXIO), and the series editor of the Melland Schill Studies in International Law. He has published extensively on international law and international legal theory. Some of his articles and books have been translated in several languages including Spanish, Portuguese, Russian, Hindi, Japanese and Persian.

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