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THE JUDGE AND INTERNATIONAL CUSTOM
The judge and international custom
Le juge et la coutume internationale
[Soudce a mezinárodní obyčej]
Council of Europe, Strasbourg 2013, 116 p.
This relatively concise publication deserves a review for several reasons. First,
it deals with the contributions of a conference organized on the occasion of the
44
th
meeting of the Committee of Legal Advisors on Public International Law
(CAHDI) of the Member States of the Council of Europe, which took place in
Paris in September 2012. Second, the topic of the conference, international custom
as one of the main sources of international law, its special character and process
of formation, continually draws the attention not only of international lawyers but
also of the judges of international and State-internal courts. Third, in the year 2012
the topic of the identification of internal customary law was put for the first time
on the programme of the United Nations International Law Commission (ILC); it
is not an accident that moderating of the conference in Paris was entrusted to Sir
Michael Wood, earlier a British legal advisor and the current Special Rapporteur
of the ILC for this topic. Fourth, the publication is interesting not only because of
its content but also because of the substantial representation of lawyers from the
former Czechoslovakia and from Central and Eastern Europe as a whole. Among
the main presentations are the contributions of Dr. Peter Tomka, president of the
International Court of Justice, Prof. Jiří Malenovský, judge of the Court of Justice of
the EU, Dr. Ineta Ziemele, Latvian judge of the European Court of Human Rights,
who was then followed by Prof. Andreas Paulus, judge of the Federal Constitutional
Court of Germany and Mr. Bernard Stirn, president of the senate of the French
Council of State. The contributions are published in English or French.
After the introductory contributions, made by B. Cazeneuve, French minister
for European Affairs, M. Lezertua, director of Legal Advice and Public International
Law of the Council of Europe, as well as the moderator, Sir Michael Wood, the main
texts follow.
Peter Tomka
deals in his paper with international custom in the practice of the
ICJ. Even though there has been a large increase in multilateral treaties in the last
decade, without custom general international law would not exist, or would be very
limited, because few multilateral treaties achieved universal participation. Moreover
secondary (responsibility) rules predominantly apply largely as custom. The ICJ never
abandoned the approach, solidly rooted in its Statute, that customary international
law is “general practice accepted as law”, therefore that “the existence of a rule of
customary international law requires that here should be steady work together with
opinio juris
”. In practice, however, the Court has never found it necessary to carry out
such an examination of every rule which was presented as custom in a specific case.