CYIL vol. 8 (2017)

SANDRA BROŽOVÁ CYIL 8 ȍ2017Ȏ existing states in the international community. In case we include international organizations into the sphere of international law subjects, 34 it would become practically impossible due to their significant and ever increasing number. 35 The codification is usually understood as a formulation of written legal norm extracted from originally unwritten rules and concurrently a logical arrangement of these rules into one coherent normative complex, which is connected to the need to establish new rules to cover unsolved questions, which is progressive development. There is also an opinion that the notion of codification is not clear and unambiguous, 36 but we can sum up at least for the purposes of this paper that the principal sense of codification in international law lies in the written expression of customary norms in a treaty and the precision of their content. To outline the relation between codification of custom in the narrow sense and progressive development in international law, we can use the well known judgment of the ICJ in the above cited North Sea Continental Shelf case 37 concerning the rule on the continental shelf and the question of whether it is binding. The Court examined the nature of the rules codified in the conventions on the law of the sea concluded in 1958. 38 The controversy arose in the Northern Sea. The Federal Republic of Germany signed the convention but did not ratify it. The Court concluded that Germany could not be bound by this rule because it did not show enough reasons to be perceived as customary. On the other hand, it was a new rule of progressive development. The Court further refused the idea that during a period of only ten years the codified rules could additionally become customary ones. The subsequent practice of states implementing a convention cannot be understood as a proof of custom, neither the practice of states who are not parties of this convention. In this well known and often cited judgment, the ICJ formulated three possible relations of treaty codification and custom: the codification in the narrow sense is purely declaratory towards the custom; the codification with a certain part of progressive development has crystallization and precision effects on the established customary norms; while the codification in its broadest sense, including progressive development as a prevailing part, can have only initiating effects on the emergence of new customary norms on the basis of the development of treaty regulation. If we apply this division of the codification of treaty law and interpretation, we can conclude that it is the second case in the middle: the rules that had been already known and widely used in practice get logically ordered. The VCLT declares in its preamble that the convention achieved codification and progressive development at the same time, and that the customary rules would continue to apply on conventionally unsolved questions in the future. In this context, it should be mentioned that the preamble was not subject to expert codification efforts of the UN ILC, because it was elaborated by the drafting committee at 34 The question about the prevailing character of the legal personality of international organizations (whether it is universal or particular) is not yet conclusively solved in the contemporary doctrine. 35 The overall number of international organizations can differ significantly according to various criteria. They can be as many as 68 000, but it is important to mention that not all of them are intergovernmental organizations endowed with full legal personality within the realm of international law. See e.g. the website of the Union of International Associations – Union des Associations Internationales . [on-line] [accessed 17 January 2017] < http:// www.uia.org/faq/intorgs1 >. 36 MAREK, Kristyna, Thoughts on Codification, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 31, 1971, p. 490.

37 North Sea Continental Shelf, Judgment , ICJ Reports 1969, p. 3. 38 See the Geneva Convention on the Continental Shelf (1958), Art. 6.

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