The changing nature of customary international law : methods of interpreting the concept of custom in international criminal tribunals / Noora Arajärvi.
2014
KZ1277 .A73 2014 (Map It)
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Author
Title
The changing nature of customary international law : methods of interpreting the concept of custom in international criminal tribunals / Noora Arajärvi.
Published
Abingdon, Oxon ; New York, NY : Routledge, 2014.
Call Number
KZ1277 .A73 2014
ISBN
9780415827416 (hardback)
0415827418 (hardback)
9780203522868 (ebk)
0203522869 (ebk)
0415827418 (hardback)
9780203522868 (ebk)
0203522869 (ebk)
Description
xix, 194 pages : illustrations ; 24 cm.
System Control No.
(OCoLC)820119563
Summary
"This book examines the evolution of customary international law (CIL) as a source of international law analyzing the substantive definitions of state practice and opinio juris, the methods of their discovery and their increasing interlinked nature. It focuses on the importance of CIL in the development of international criminal law and in particular the ways in which international criminal courts and "hybrid" criminal tribunals can be said to be changing the ways in which CIL is determined. The book examines the role of international courts and tribunals in changing the nature of custom, analyzing the methodologies employed by the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda, Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. Through examination of the case-law and the reasoning of the courts Noora Aräjarvi demonstrates that the tribunals have on occasions tilted towards innovative approaches in their interpretation and methods of finding the applicable customary international law. She shows how and to what extent the court's chosen method of application of CIL affects the process of custom formation as the judges may have the function of both applying and forming rules of CIL. This raises the question as to what level of judicial activism that should be acceptable in international courts as regards CIL"-- Provided by publisher.
"This book examines the evolution of customary international law (CIL) as a source of international law. Using the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a key case study, the book explores the importance of CIL in the development of international criminal law and focuses on the ways in which international criminal courts and "hybrid" criminal tribunals can be said to change the ways in which CIL is determined. In doing so, the book surveys the process and substance of CIL, as well as the problematic distinction between the elements of state practice and opinio juris. By applying a positivist approach, Noora Araji analyses the methodologies employed by the ICTY, International Criminal Tribunal for Rwanda, Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. Through examination of the case-law and the reasoning of the courts, Aräjarvi demonstrates to what extent the court's chosen method of application of CIL affects the process of custom formation. The book will be of great value to researchers and scholars of international law, international relations, and practitioners with interests in customary international law"-- Provided by publisher.
"This book examines the evolution of customary international law (CIL) as a source of international law. Using the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a key case study, the book explores the importance of CIL in the development of international criminal law and focuses on the ways in which international criminal courts and "hybrid" criminal tribunals can be said to change the ways in which CIL is determined. In doing so, the book surveys the process and substance of CIL, as well as the problematic distinction between the elements of state practice and opinio juris. By applying a positivist approach, Noora Araji analyses the methodologies employed by the ICTY, International Criminal Tribunal for Rwanda, Special Tribunal for Lebanon, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. Through examination of the case-law and the reasoning of the courts, Aräjarvi demonstrates to what extent the court's chosen method of application of CIL affects the process of custom formation. The book will be of great value to researchers and scholars of international law, international relations, and practitioners with interests in customary international law"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages [166]-181) and index.
Record Appears in
Table of Contents
Preface
x
Acknowledgements
xi
Table of cases
xii
Table of statutes
xvi
Introduction
1
1.
Genesis of customary international law and international criminal law
8
1.1.
Introduction
8
1.2.
Development of customary international law and article 38(1)(b) of the Statute of the ICJ
9
1.3.
Developments in case-law
12
1.4.
Elements of customary international law
16
1.4.1.
Practice
18
1.4.2.
Opinio juris
23
1.5.
Interpretations of customary international law in human rights law
30
1.6.
Human rights law, humanitarian law and international criminal law
33
1.6.1.
Customary international law in the International Military Tribunal in Nuremberg
38
1.6.2.
Customary international criminal law from Nuremberg to The Hague
42
2.
New concept of customary international law - the role of the international criminal judge
49
2.1.
Introduction: the international judge and the formation of customary international law
49
2.2.
Judicial restraint versus judicial activism
53
2.3.
Application and formation of customary international law in the ICTY
56
2.3.1.
Developments in the case-law of the ICTY
58
2.3.2.
Application of human rights law in the ICTY
65
2.4.
Who makes international law? States and the formation of customary international law
70
2.5.
Concluding remarks
73
3.
Customary international law in the decisions of the ICTY
75
3.1.
The methods of discovering customary international law in the ICTY
75
3.2.
Traditional method: state practice and opinio juris
76
3.3.
Opinio juris as the bedrock of customary international law
84
3.4.
Customary international law arising from treaties and national legislation
89
3.5.
Case-law as evidence of customary international law
100
3.6.
Joint criminal enterprise, and `specific direction' in customary international law: some reflections
109
3.7.
Concluding remarks
117
4.
The principle of legality and customary international law
120
4.1.
Introduction
120
4.2.
Legal method - an overview
121
4.3.
Strict legality and inner morality - which way for international criminal law?
123
4.3.1.
Interplay of lex lata and lex ferenda
124
4.4.
Application of the principle of legality to international crimes
126
4.5.
The scope of nullum crimen sine lege
129
4.6.
Concluding remarks
142
5.
The need for a new conceptual framework for the sources in international law
143
5.1.
Introduction
143
5.2.
New source or modified methodology?
144
5.3.
Alternative categories of sources of international law
147
5.4.
Primary and secondary rules in customary international law
151
5.5.
The rule of recognition in international law
153
5.6.
Is there a need for a new sources theory in international law?
156
5.7.
Concluding remarks
160
General conclusion
162
Bibliography
166
Index
182