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"Customary International Law" published on by Oxford University Press.

Introduction : why does customary International law need reexamining? / Brian D. Lepard -- Customary International law in historical context : the exercise of power without general acceptance / J. Patrick Kelly -- Fake custom / Fernando R. Teśon -- The role of consent and uncertainty in the formation of customary International law / Niels Petersen -- Customary International law and general principles : rethinking their relationahip / Thomas Kleinlein -- The ICRC and the clarification of customary International humanitarian law / Jean-Marie Henckaerts and Els Debuf -- 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 -- Toward a new theory of customary International human rights law / Brian D. Lepard -- Using customary International law to improve women's lives / Anna Williams Shavers - Customary International law in aviation : a hundred years of travel throught the competing norms of sovereignty and freedom of overflight / Sofia Michaelides-Mateou -- Customary International law and outer space / Frans G. von der Dunk -- Concluding reflections / Brian D. Lepard

Central to the World Court's mission is the determination of international custom "as evidence of a general practice accepted as law." Students of the Court's jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court's lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.

Customary international law (CIL) is under attack as behaviorally epiphenomenal and doctrinally incoherent. In this article, we reject both claims. To be sure, CIL is a feat of levitation; it rests not on a rock-solid natural law basis of divine principles, but on a fabric of rational acts, woven through a multiplicity of relations over time. And while there are limits on, and variations in, the effectiveness of CIL, we argue that there are circumstances where it may independently affect the behavior of states. There is no reason in theory, or in data adduced by others, to believe CIL to be generally epiphenomenal. Since certain components of CIL serve as the foundation of all international law, this article suggests the circumstances under which one would expect international law to affect state behavior.

My subject today is "International Organizations and Customary International Law"--that is, the role of international organizations in relation to the formation and determination of rules of customary international law. Charney devoted a good part of his well-known article on "Universal International Law" to what he termed "contemporary international law-making." By that, he meant chiefly law-making within "international forums"--that is, within organs of international organizations and at international conferences. He starts the discussion from the somewhat heretical position that "[w]hile customary law is still created in the traditional way, that process has increasingly given way in recent years to a more structured method, especially in the case of important normative developments. Rather than state practice and "opinio juris," multilateral forums often play a central role in the creation and shaping of contemporary international law." Charney's conclusions, however, are perhaps not as radical as his premise. He acknowledged that "[s]ome may question the authority to legislate universally, even in the face of some dissent, because it appears to be inconsistent with the sovereignty and autonomy of states. Such apprehension is not unreasonable. The international legal system, however, will invoke this authority sparingly."

Explores the relevance of customary rules of international humanitarian law & the mechanisms through which they are created. International humanitarian law adopted in Geneva in 1864 was based on customary rules generated by practices adopted in previous wars. In spite of extensive codification of humanitarian law by numerous treaties, treaty law does not adequately cover today's armed conflicts, especially those that are not international in scope. Customary international law is said to have the potential to fill existing holes in treaty law resulting from a lack of substantive coverage or ratification. Situations in which customary international law could be useful, & the methodology used to institute rules of customary international law, are described. Research on customary rules of international humanitarian law conducted by the International Conference of the Red Cross & Red Crescent identifies 200 basic rules found to be customary in today's noninternational armed conflicts. These rules will be included in a code of customary international law that will be binding upon parties in international & noninternational armed conflicts. J. Lindroth

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law. After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.