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Rules In A Treaty Becoming Binding On Third States Through International Custom

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Chapter Summary

Article 38 indicates the process of generation, namely that a rule set forth in a treaty becomes binding on third States as a customary rule of international law. A new customary rule will arise with the same substance as the treaty rule. The process differs from codification, where the written rule is, already at the outset, declaratory of, and reflects, customary law. The term "generation" or "creation" by means of a treaty provision of a customary rule may neatly illustrate the formative process of customary law. Generation cannot be viewed as a "short cut" to customary law. Customary law, like any source of law, requires norms establishing the manner in which its rules evolve, change or fall into desuetude. Article 38 merely serves as a saving clause and reminder that the process is feasible, without entering into the matter in any detail.

Keywords: Article 38; customary law; third States; treaty



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