Book contents
- Frontmatter
- Contents
- Figures
- Acknowledgments
- Cases
- PART ONE THE ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- PART TWO FOUNDATIONS OF A NEW THEORY OF CUSTOMARY INTERNATIONAL LAW
- PART THREE RESOLVING THE CONCEPTUAL ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- 6 Toward a New Normative Theory of Customary International Law
- 7 A New Understanding of Opinio Juris
- 8 The Function of the State Practice Requirement
- 9 Ethics and Customary International Law
- 10 Democratic Principles and Customary International Law
- 11 The Relationship Between Customary International Law and General Principles of Law
- PART FOUR RESOLVING THE PRACTICAL ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- PART FIVE SOME APPLICATIONS OF THE THEORY
- PART SIX THE FUTURE OF CUSTOMARY INTERNATIONAL LAW
- Bibliography
- Index
9 - Ethics and Customary International Law
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Figures
- Acknowledgments
- Cases
- PART ONE THE ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- PART TWO FOUNDATIONS OF A NEW THEORY OF CUSTOMARY INTERNATIONAL LAW
- PART THREE RESOLVING THE CONCEPTUAL ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- 6 Toward a New Normative Theory of Customary International Law
- 7 A New Understanding of Opinio Juris
- 8 The Function of the State Practice Requirement
- 9 Ethics and Customary International Law
- 10 Democratic Principles and Customary International Law
- 11 The Relationship Between Customary International Law and General Principles of Law
- PART FOUR RESOLVING THE PRACTICAL ENIGMAS OF CUSTOMARY INTERNATIONAL LAW
- PART FIVE SOME APPLICATIONS OF THE THEORY
- PART SIX THE FUTURE OF CUSTOMARY INTERNATIONAL LAW
- Bibliography
- Index
Summary
A PROPOSED ROLE FOR FUNDAMENTAL ETHICAL PRINCIPLES IN DETERMINING OPINIO JURIS
In Chapter 6 I sketched a role for fundamental ethical principles as a basis of obligation of customary international law. I now explore the role of these principles in identifying customary international legal norms, and especially opinio juris. The role of fundamental ethical principles in ascertaining opinio juris may be specified as follows. First, we should look for evidence about states' own perspectives on the role of fundamental ethical principles in supporting a particular rule. If this evidence is clear, then we should defer to states' own evaluation of this role for ethical principles so long as it is reasonable.
If the evidence is unclear about whether states believe a particular norm is desirable to implement immediately or in the near future as an authoritative legal rule and is also ambiguous concerning their evaluation of the relationship between the rule and fundamental ethical principles, then certain presumptions should come into play. If the norm objectively has a direct and significant impact on fundamental ethical principles, either positive or negative, this impact is a reason to presume that states either favor or disfavor implementation of the norm as a legal rule.
Moreover, if a norm directly helps to fulfill these principles, then it should be presumed that states desire that it have at least persuasive authority. This presumption is warranted by states' widespread rhetorical endorsement of fundamental ethical principles.
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- Information
- Customary International LawA New Theory with Practical Applications, pp. 140 - 150Publisher: Cambridge University PressPrint publication year: 2010