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4 The Custom-making Moment

From: The Discourse on Customary International Law

Jean d'Aspremont

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 March 2024

Subject(s):
Customary international law — General principles of international law — Opinio juris

This chapter zeroes in on the postulation of a moment in the past where the social reality actually engendered the norm as the discursive performance that is required for customary international law to be grounded in social reality. It discusses the grounding of customary international law in a social reality captured through practice and opinio juris that can only be upheld if there was a moment in the past where the practice and opinio juris of states have coalesced in a way that generates customary international law. It also argues that the actual moment where social reality has engendered a customary norm is never established or traced but is always presupposed. The chapter points out that the moment customary international law is made is located neither in time nor in space. It elaborates how customary international law is presupposed to have been made through actors' behaviours at some given point in the past and in a given place.

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