CYIL 2013

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.