CUSTOMARY INTERNATIONAL LAW – A CURRENT CONCERN OF THE INTERNATIONAL SOCIETY
CUSTOMARY INTERNATIONAL LAW – A CURRENT CONCERN OF THE INTERNATIONAL SOCIETY

Summary/Abstract: The increase in the number of states, as well as the number of international organizations, the setting up of new entities in international realm, the multiplication and diversification of the rapports between these entities make us focus on customary law against the background of current conditions of the international society. It is a well-known fact that customary law is one of the main sources of public international law, a source ranking second, after the treaty, if we consider the appreciations of the doctrine. Still, there are also contrary opinions, according to which customary law and the treaties are equivalent and any relation between the two is obtained according to the criterion of each particular case. Recognizing the importance of customary law and noting the discrepancies existing in international practice and case law, the International Law Commission decided to include this topic in its agenda as early as 2012. The main goal is to prepare a practice guide for judges and practitioners in all fields, especially for those operating in the field of public international law. Thus, the International Law Commission has established that customary international law or the rules of the customary international law mean those rules of international law that regard the provisions of art.38, para.1(b) of the Bylaws of the International Court of Justice. The analysis of the objective element of customary law, namely the evidence of a general practice determines the identification of a considerable number of specific aspects. Thus, in order to be relevant in the process of forming a rule by means of customary law, practice needs to be general, representative, uniformly and frequently applied in a certain timeframe. The existence of the objective element is necessary but not sufficient. The evidence of the existence of a rule by appeared by means of customary law is complete if both elements, namely the objective element and also the subjective one, are identified.

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