Customary International Law Continued

As we continue our examination of customary international law, we will focus on the  North Sea Continental Shelf case, Nicaragua v. U.S.A., and the various pieces on jus cogens norms and normative hierarchies within custom. Finally, by the end of the week we will be looking at the relationship between treaty and custom, in Section 3 of Chapter 2. Review the Schachter piece briefly, but focus on part C and the notes thereto.

Some questions to consider as you go through the material, are:

- to what extent does the court's position in the Nuclear Weapons case depart from and overturn the presumptions in the SS Lotus case?

- How is the element of time dealt with by the court in North Sea Continental Shelf? How would that support or negate the more recent arguments for "instant custom" (see note 8 on p.89 and note 3 on p.95)?

- We will return to look at Nicaragua v. U.S.A. several times during the course. What you have here is only a very short excerpt. You may want to familiarize yourself with the context of this excerpt by looking at the summary of the case, which you can find at the ICJ website, a link for which is in the right margin.

- Why is it that the court in Nicaragua spends less time examining evidence of widespread state practice?

- How can a state resist the obligations of customary international law that might emerge from the widespread adherence to a treaty that the state specifically decided not to agree to? How does that impact on the issue of consent? Conversely, should we permit states to opt out of norms that are becoming increasingly universal? Should South Africa, for instance, have been permitted to opt out of norms prohibiting racial discrimination?