CYIL 2013

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