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5 The Practicians

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: 20 April 2024

Individuals and non-state actors — International organizations — Customary international law — General principles of international law — International responsibility — Opinio juris

This chapter reviews the dominant approach in which customary international law gets in validity, its legality, its consistency, and its factuality from practice and opinio juris. It investigates the presumptive character of the moment where practice and opinio juris coalesce and generate customary international law, which must be ascribed a genitor. It also emphasizes that as long as practice and opinio juris have a sufficient number of genitors, they can be conducive to the formation of customary international law. The chapter talks about practicians as the genitors of the practice which customary international law must emanate from, such as those that produce the actual behaviours (practice sensu stricto) and the beliefs (opinio juris) that are generative of customary international law. It outlines the determination of the practicians of customary international law as a discursive performance that is commonly and repeatedly witnessed in debates about customary international law.

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