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The nature of customary international humanitarian law revisited

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Chapter Summary

This chapter deals with the process of identifying customary international law in general. It presents an overarching methodology (inductive or deductive) of ascertaining customary international law. The chapter focuses on the relationship between treaty-based rules and customary international law. It outlines the discourse on modern customs and traditional customs. International humanitarian law (IHL) and international human rights law are considered to reflect moral values. The chapter explores Koskenniemis critique of the legal argumentative structure based on the fluctuation between apology and utopia. Analyses then turn to theoretical answers to his critique. For the purpose of better understanding the nature of the dynamic tension between demand for consistency with empirical data, and normative demand of the contents of customs, Anthea Roberts consider it of special import to examine Dworkins interpretive theory.

Keywords: customary international humanitarian law (IHL); Dworkins interpretive theory; international human rights law; Koskenniemis critique; modern customs; traditional customs



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