CYIL vol. 8 (2017)

SANDRA BROŽOVÁ CYIL 8 ȍ2017Ȏ the present paper in the sense that customary rules are binding as such and when they get embodied in a codification convention, they are still binding. Conclusion – some common features of Customs and Treaties The differences between treaties and customs are diminishing in the process of codification, while both these sources are getting closer. Both a treaty and a treaty which is an expression of a former custom are adopted in the same process and are drafted in written form. Treaties and customs share the reason of their binding nature: it lies in the consensus of international law subjects, in the mutual manifestation of will demonstrating shared conviction about the content of a particular rule. It is a consensus about the rights and duties of the involved subjects, while this consensus can be interpreted more broadly as a formation of a general framework for the realization of these rights and duties by means of multilateral law-making treaties. Consensus differs in the form and in the way in which it has been expressed. Up to the 19th century, customs prevailed quantitatively, while international law norms were altogether not numerous. Traditionally, it is stated that custom has an advantage in greater flexibility and adaptability to changes in the international community because it does not require complicated and time consuming processes of negotiation and conclusion of new treaties or their amendments. 44 The greater the number of state parties is, the longer the time and higher transaction costs can be expected for negotiation or re-negotiation of a treaty. When deciding about the binding character of customary norms, we can rely on the expertise of the ICJ which refers (often automatically and without further explanation) to the codifications elaborated by the UN ILC which gave rise to the binding conventions (e.g. the codification of diplomatic and consular law or the law of the sea) or conventions not yet in force (e.g. succession of states in respect of state property, archives and debts) or any convention so far (e.g. international responsibility). The frequent reference is a proof of the conviction of Judges of the ICJ about the customary character of the codified rules. 45 The whole complex of secondary norms of international responsibility is a prime example of purely customary regulation with extraordinary importance in international law. The codification activity of the ILC on this topic was finished by publishing the Draft Articles on Responsibility of States for Internationally Wrongful Acts 46 in 2001 and no multilateral convention has been adopted on the topic so far. The international community respects the Draft Articles as a codified binding custom and international courts frequently cite them notwithstanding the absence of a formally binding written treaty. The relation of codification conventions and earlier customary rules is intensively discussed in the doctrine and it is obvious that the opinions are far from unanimous. Sometimes custom is preferred and states that do not accede to the codification convention are supposed to be further bound by the customary equivalent of the codified rules in the wording of the codified convention. There is also an opposite view that states who vote against the 3.

44 BAXTER, Richard, Treaties and Custom. Recueil des Cours , 1970, p. 40. 45 TOMKA, Peter , op. cit. , p. 35. 46 Draft articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission , 2001, vol. II, Part Two.

148