International law customary

See L. Tabassi, Impact of the CWC Progressive Development of Customary International Law and Evolution of the Customary Norm against Chemical Weapons , CBW... 

Customary international law which defines how states have behaved over a period of... 

As to the situations covered, it has already been pointed out that the Geneva Protocol only applies to international armed conflicts. In contrast, it is debatable whether the parallel prohibition of chemical warfare in customary international law was and is applicable to non-intemational armed conflicts. Today, States Parties to the CWC clearly state that they will never under any circumstances use chemical weapons. This not only includes international and non-intemational armed conflicts, but it goes far beyond these situations. Rather, the only situations excluded from the prohibition are situations of law enforcement including domestic riot control purposes , as mentioned in Article II, para 9, CWC. This provision only applies to riot control agents, which— as can be taken from Article I, para 5, CWC— are explicitly outlawed as a method of warfare . Thus, the prohibition of use is comprehensive in terms of situations covered, with the only exception of the use of riot control agents for purposes of law enforcement (including riot control). 

The principle of distinction applies to naval warfare qua customary international law. " Accordingly, belligerents are under an obligation to only apply those methods and means of naval warfare, which are in compliance with that cardinal principle of the law of armed conflict. However, naval warfare is characterized by some special features that have had an impact on the rules specifically applying to the conduct of hostilities at sea. Despite their considerable age, many of those rules continue to be valid today or they are indicative of general principles that also govern methods and means of naval warfare that were not envisaged more than a century ago. 

This rule has become part of customary international law. See rule 55, Henckaerts and Doswald-Beck 2005, p. 193. 

The 1954 Hague Convention needs to be seen in the context of the historical background. The 1949 Geneva Conventions, in particular the Fourth Convention relative to the protection of civihan persons in time of war reinforced existing provisions of customary international law, in particular. Article 53 of the Fourth Convention prohibited the destruction by an Occupying Power of private property, property belonging to the State, or to other pubhc authorities, or to social or cooperative organisations, except where such destruction is rendered absolutely necessary by military operations. 

The commentary on this rule observes that state practice establishes this rule as a norm of customary international law applicable in international armed conflicts. ... 

The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope.. .. 

Recalling the provisions of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 Jime 1925, and other relevant rules of customary international law. 

Some of the instruments 1 classify as non-binding in Chap. 5 are taken to reflect customary international law. Amongst others, this is true for GA Resolution 1514 on the end of colonialism. While the content of this resolution may have been accepted as custom, the resolution itself remains outside the sources of art. 38 (1) ICJ-S. Therefore, the resolution is found in the category of non-binding instruments. It is no more than the point of departure one the main points along the way of this project is to argue that this strict categorization as 1 put forward in Chap. 5 is not adequate and needs to be reconsidered. 

As accepted international law today stands it remains true that black letter treaty law does not explicitly link minorities or minority rights to self-determination. There seems to be reluctance among states to recognize a right to internal self-determination for minorities. If this is all there is to be found in treaties, it is time to turn to the second source of international law which is customary international law. 

Customary international law causes problems wherever it is referenced. With this dubious appraisal in mind, let us start a journey into the world of customary international law. The discussion distinguishes between classic and modem customary international law. Modern custom is offered as an alternative to classic custom when classic custom is found problematic on a number of points. Also modem customary international law is debatable. As a consequence, customary international law is not a reliable source. 

State practice raises a number of issues. The first one starts with the most basic question of what constitutes state practice. In 1950, the International Law Commission reported on the scope of customary international law. The report lists a number of materials as evidence of custom though making it clear that perhaps the differentiation between customary international law and conventional international... 

The terms custom and customary international law are used interchangeably in this chapter. 

According to the popular idea that international law is made by consent, " customary international law could only be made by universal practice of all states. 

Looking for a solution, the issue becomes still more problematic. Universal practice is impossible and majority practice challenges the doctrine of sovereignty. In this relation, another problematic feature of customary international law is introduced CIL is relative. Customary international law has never been absolute rules. While few instances of non-following may constitute a breach of a rule under CIL, the rule itself can be overturned if the contradictory rule has more state support in word and action. It is also important to notice the Id s statement that the practice of those states interested is of special importance to the formation of a rule of CIL. Because of geographic, economic, pohtical and military might, some states simply have more interests than others and contribute more to the formation and hardening of customary international law. 

Menon (1989), p. 120. The ICJ has held that the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law. See para 74 International Court of Justice (1969) North Sea Continental Shelf Judgement North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark Federal Republic of Germany/ Netherlands), 20 February 1969 I.C.J. Reports 1969, p. 3. 

A number of the same problems arise for opinio iuris as for state practice. These are questions regarding the consistency of the same opinio iuris, the quantity of states that support it and its relativity concerning the establishment of new rules. There are simply too many open questions or unsatisfactory answers in order to use classic customary international law in the exercise of finding a right to internal... 

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