Formation-and-Evidence-of-Customary-International-Law -...

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182 International Law Commission UFRGSMUN | UFRGS Model United Nations Journal ISSN: 2318-3195 | v1, 2013| p.182-201 Formation and Evidence of Customary International Law André da Rocha Ferreira Cristieli Carvalho Fernanda Graeff Machry Pedro Barreto Vianna Rigon 1. Historical background Since the establishment of the international community, two were the mainly sources of law: treaties between States and custom. Scholars often sustain that international law emerged in Europe, specifically after the Peace of Westphalia in 1648. It is possible to identify a development of relations between different political actors already in the ancient times and, at that time, we can note the presence of the custom in this relations. In fact: “[t]o assume that international law has developed only during the last four or five centuries and only in Europe, or that Christian civilization has enjoyed a monopoly in regard to prescription of rules is to govern inter-state conduct. As Majid Khadduri points out: “in each civilization the population tended to develop within itself a community of political entities—a family of nations—whose interrelationships were regulated by a single authority and a single system of law. Several families of nations existed and coexisted in areas such as the ancient Near East, Greece and Rome, China, Islam and Western Christendom, where at least one distinct civilization had developed in each of them. Within each civilization a body of principles and rules developed for regulating the conduct of states with one another in peace and war” (Anad in Malanczuk 1997, 9). At that age, both sources had the same hierarchy as a rule, being equally treated in the law practice. Furthermore, it is important to state that both had one particular characteristic: they did not bind States to rules that they did not commit to obey; in other words, there was no interference of an outside legislator in the rules of States. At first sight, it could be reasonable to ponder that customary law was not a source formally ratified by the State, so bind it would be a kind of interference (Cassese 2001). Nevertheless, States had a pactum tacitum (tacit consent) in the matter of custom, an idea that were brought by medieval jurists from Roman tradition. Such consent is not attached to a contractual view, but to
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UFRGSMUN | UFRGS Model United Nations Journal 183 the tradition, something very similar with the present view of custom. An Italian medieval jurist, Bartolus de Sassoferrato (1313 – 1357), assumed that: “A statute obtains [its] consent expressly, and therefore does not require other conjectures [about its existence]. But custom requires tacit [consent]. Therefore a long passage of time is necessary, so that [the custom] may become apparent through the consent of the people and their perseverance [in the act]” (Kadens and Young 2013, 889-890).
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