CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE IMPORTANCE OF CUSTOMARY LAW FOR THE CODIFICATION OF THE LAW … the diplomatic conference in Vienna where the whole Convention was adopted including the preamble. 39 The law of treaties builds on the extensive experience of states with negotiation and later interpretation of agreements. In the 1960s when the codification convention was drafted, the doctrine tended to emphasise the declaratory aspect of codification. 40 There are other branches in international law where, on the other hand, progressive development is the only possible way to comprehensive codified legal regulation, e.g. space law or the responsibility of international organizations under international law, which was a topic elaborated by the ILC and finished by issuing Draft articles on the responsibility of international organizations 41 in 2011. In the Commentary of the ILC to this draft, as well as in the subsequent doctrinal discussions, there was not infrequently mentioned that certain codified rules on international organizations’ responsibility represent purely progressive development without any settled custom. Nevertheless, the legal regulation of international responsibility is built on general principles valid for states – such as in the case of key elements, e.g. attributability or the concept of responsibility as a legal consequence of internationally wrongful act without regard to the existence of pecuniary damage. Generally, customs are closer to state practice than the treaty texts because they actually originate from practice, although practice cannot create custom itself without the expression of the legally binding nature of the rule concerned. It is not surprising that time plays an important and sometimes a decisive role in the forming of opinio iuris indispensable for a customary rule. While in the above mentioned North Sea Continental Shelf the ICJ preferred an interpretation that the Convention on the Continental Shelf concluded in 1958 could not during a period of only ten years acquire the effect of forming new custom, the decision of the Court was different in 2001 in the case Bahrain vs. Qatar. 42 The parties to this dispute were not state parties of the United Nations Convention on the Law of the Sea (UNCLOS, concluded in 1982) but the ICJ found that they were bound by the rules enshrined in the convention on the basis of custom. It is to be distinguished whether states abide by rules provided for in the convention for the reason of carrying their treaty obligation or for the reason of respecting a custom reflected in the treaty text, or a custom emerging on the basis of the treaty text, respectively. It is a well-known fact that the codification conventions confirm the binding character of former customary rules. This can be commented on through a famous sentence said by a French diplomat, Talleyrand, who lived in the 18th and 19th century: „ Cela va sans dire, cela va encore mieux en le disant …“, 43 which we can translate into English for the purpose of 39 ŠTURMA, Pavel, ČEPELKA, Čestmír, BALAŠ, Vladimír, Právo mezinárodních smluv (The Law of Treaties) , Aleš Čeněk, Pilsen, 2011, p. 19. 40 MAREK, Kristyna, Thoughts on Codification , Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 31, 1971, p. 491. 41 Draft Articles on Responsibility of International Organizations , UN Doc. A/66/10, [on-line] [accessed 15 January 2017] . 42 See the Judgment of ICJ in the case Maritime Delimitation and Territorial Questions between Qatar and Bahrain , ICJ Reports , 2001, p. 40 et seq., at p. 97: “ In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law [emphasis added] , islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory .” 43 TALLEYRAND-PÉRIGORD, Charles Maurice, prince de, Le Monde. Le dictionnaire des citations . [on-line] [accessed 15 January 2017] < http://dicocitations.lemonde.fr/citations/citation-11472.php >.

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