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PAVEL ŠTURMA
CYIL 4 ȍ2013Ȏ
Instead of this it uses the best and most expedient evidence available for determining
whether a customary rule exists. Sometimes this means to directly examine the
material elements of custom but, more often, to look at the opinions expressed by
states and bodies, like the International Law Commission, to see whether a rule of
customary law exists and what its content is.
Tomka then reviewed the judicature of the Permanent Court of International
Justice and the ICJ with respect to the identification of custom. In this sense the
Court today uses four methods: 1) reference to multilateral treaties and their
travaux
préparatoires
, 2) reference to resolutions of the UN and other non-binding documents
which are drafted in normative language, 3) considering whether an established rule
applies to current circumstances as a matter of deduction, and 4) resorting to an analogy.
Each of these methods of course depends on the existence of specific situations.
Jiří Malenovský
dealt with customary international law from the point of
view of the Court of Justice of the EU. He started with a statement of the dual
nature of the European Union as an international organization which has both an
integrative character (member states transfer to it several of their competences) and
also a regional character. From this it results that its contribution to the creation of
customary rules of general international law is, on the one hand, more significant
than a simple inter-governmental organization and, on the other hand, necessarily
limited by its regional focus. The practice of ordinary organizations is to be able to
only create rules of their internal institutional law. Their non-binding resolutions
can only indirectly contribute to the formation or completion of a future
opinio juris
or to declare an already existing
opinio juris
. The EU, on the other hand, by the fact
that in the sphere of transferred competences it substitutes the practice of its member
states and enters into direct relationships with third states, becomes an actual and
influential actor who directly shares in the creation of customary rules. It is able to
also act both in an active manner and also in a negative form or of protest against
the formation of a new rule. The EU of course does not have full competences like
a state, but only those entrusted by founding treaties; therefore it shares less than
states in the forming of custom.
Malenovský then concisely described the development stages of the jurisprudence
of the Court of Justice in relation to general international law. At the beginning
(in the 1950s) it perceived rules issuing from founding treaties as an autonomous
regime in the framework of international law. Dissention appeared at the beginning
of the 1960s with two famous judgements (
van Gend & Loos
, 1963,
Costa
, 1964),
when the Court of Justice pronounced Community law (today the law of the EU)
as “a new legal order” independent in relation to international law. A further stage
arose at the beginning of the 1990s, when the meaning of internal EC/EU relations
gained importance. The Community (eventually the EU) accepted some multilateral
treaties and became a member of some international organizations, especially the
World Trade Organization (WTO). The Court of Justice began to recognize that the
EC/EU must carry out its competences in harmony with international law. In the