Customary international law(CIL) is known as the mystery of the sources of international law. Compared to study abroad in China, research on this issue is still very weak, and current research is still fragmented, local and from legislative perspective. And the research from the perspective of international judicial method has just begun. In this paper, this perspective is the basic rationale for using logic and evidence, and to combine the theory and practice. Through a systematic review on the establishment fulfilled in CIL theory by western scholars in international law and international relations scholars, and focus on the International Court of Justice (ICJ) how to determine CIL from the perspective of legal method, It can be found that the determination of CIL has a high degree of uncertainty. There are a lot of theories and differences between them. International judicial policy varies in accordance with the international political situation and move. The ICJ's justice relied mainly on the legal methods of the law- making to draw judicial conclusions. The dissertation consists of four major sections: the first is Introduction; the second will tell about the various theories on how to determine CIL, which includes the first, second and third chapters; the third part, including the fourth, fifth, sixth, seven chapters, is the review to the ICJ's judicial policy and legal methods in how to determine CIL; The fourth part is attached words, which is a brief analysis of China's possible contribution to the CIL. The following are the main contents of each chapter:Introduction: This is an overview on the origin, background, status quo of the research, scope of the study, research ideas and research methods, etc.Chapter I: CIL serves as the core of the international sources. This chapter will discuss in two respects. On the one hand, I will discuss the status of custom in international law from the relationship between CIL t and other sources of international law. Through investigation the relationship between them, it is found that although the law of treaties is the leading source of international law in modern international law from the number, scope of application point of view, but only CIL can represent the nature of international law. On the other hand, from the perspective of the effectiveness of international law, the formation of custom has been explained by scholars of other disciplines such as sociology and economics. Here only from the legal positivism's stance on the history of the leading scholars which usually negated international law as law and question the view of positivism. I argue that the ultimate effectiveness of sources of international law can only actually be interpreted as from the custom.Chapter II: the component theory of the formation of CIL. This is the most active proposition of CIL theory. In this area, we can enjoy the colorful theoretical disputes, such as what is the practice of States? What is its nature and the performance of them? What is opinio juris and what is its essence? What role does the two elements play in the formation of customary rules? By studying the views of different scholars, I finally agree with the traditional view in favor of the two elements. Namely, although opinio juris is the key to the formation of customary law, it must be ascertained by inspection of state practice, and the scope of practice of modem CIL must also be expanded to include the country's oral and written acts, and this has become the main forms of modern state practice. In that with the development of today's technology and more and more international organizations, they provide a broad space and a liberal stage to the state to freely express their will.Chapter III: Beyond Hume's Law: a theoretical premise on how state practice transforms into rules of CIL. The theory of the formation of CIL is rooted in which how a fact (state practice) translates into a norm (customary law). This is an enigma in the history of philosophy which is difficult to resolve-Hume Proposition. In accordance with the rules, is is unlikely to become ought, but the explanation of the formation process of customary law rests precisely on this unanswerable question. In history, the philosophers had paid a hard effort to answer this question, there once appeared such as the explanation of naturalism, pragmatism, emotionalism, humanism, intuitionism and Marxism. Modern times witness many new interpretation, such as Putnam's theory of "fact tangling value", the purpose of McIntire, language analysis philosophy of Searle and others. However, the jurists did not intend to dwell on such an abstract empty speculative philosophy, but something of psychological factors - opino juris, to resolve this problem. Therefore, I eventually will give answer to the Hume question in psychology, which is cognitive psychology and the Gestalt psychology of explanation. I wish they can dissolve some doubt in theory of determination of CIL.Chapter IV: the empirical study of ICJ in determination of CIL. In theory, all the differences of CIL would seem to imply that there is no pattern of ascertaining customary law. However, in judicial practice, no matter how much controversy the court had, they would have certainly made arbitrary decisions, therefore, it is of paramount important to explore the practice of ICJ to find the law of justice. After the case study of ICJ justice, the author finds that the ICJ's (including former Permanent Court of International Justice) judicial policy in general has gone through a shift from the restraint to activism, and then pursues the path of compromise between the two. The ICJ' policy varies by the pattern of international relations, international political situation, the judge's background and prejudices, as well as other non-legal factors Because of the negative attitude of the great power, the future of international justice may be more to restore its judicial functions, as far as possible away from political issues, to some extent to meet the will of great powers, and may have return to restraint gesture.Chapter V: Judicial argument approach to determine a CIL norm. These non-legal factors mentioned in the previous chapter will not be directly reflected in the judgments and advisory opinions. Because, ICJ as the only judicial body under the United Nations, it can only be faithful to the law, only to make legal decision, in the framework of law. The ultimate role of above factors will only play through certain legal methods, thereby within the scope of the grounds of law. One of them is legal argumentation. Legal argument lies in the legal uncertainties arising in the plural explanation or legal loopholes to be exploited. The judge may decide by a stronger argument. The unwritten nature of CIL and thereof uncertainties precisely provide the argument with the room. The paper anatomizes customary law in Marty Koskenniemi's Critical Perspectives, and finds that CIL (in fact cover the whole of international law) is full of plural interpretation. The parties in these complex explanations can be found views in line with their arguments. In the many cases, the final court ruling will decide by the more persuasive views of the party. For example, in proving whether state practice constitutes opino juris or not, the court often assess whose evidences appeared more sufficient provided by the parties to determine whether the customary rule existed or not,.Chapter VI: Approach to determine CIL through interests balance. Generally speaking, balance method is still the basic legal method when a legal norm also faces multiple explanation and legal loopholes. As much, this method can be converted to apply to the context of international justice. In international litigation, as the meanings of the concepts and norms of international law have more ambiguous and more legal gaps than domestic law. When one party of litigants contends its action complying with certain customary norms of international law or constitute a new customary law, it will involve to the question of whether the norm has established, and the legal substance of the problem is to fill the legal gaps or by judge-made law. This provides space undoubtedly to the application of interests balance. Although the application of the method may represent many patters, and there are a variety of viewpoints, but by studying the specificity of the interests of international law, the paper examines the ICJ's the process of legal reasoning in some cases thereafter showing the application of this method in the context of international justice. The results-oriented approach held by a Japan scholar, Kato Ichiro's "first results then giving reasons," maybe has the most convincing, because the interests under the circumstances of international law are difficult to accurately calculate, and conflict of interest is mainly reflected the conflict of principles. Moreover, the various interests overlap and cross-cutting. The meaning of concepts and norms is of pluralism. All those determine the interest balance in the context of the international justice.Chapter VII: Approach to determine CIL through the integrated interpretation. Dworkin's theory of integral legal interpretation was guided by the integral concept of the law, pursuit of dynamic coherence between the fit dimensions (past practice) and substance dimension (moral and legal principles) and a example of his explanation of the theory is the habit formation - "etiquette rules". Therefore, in the face of many contradiction in the formation of CIL in theory, how to build a coherent interpretation to the unite relationship between the two constituent elements of CIL, i.e. State practice and opino juris, must be taken into account. Dworkin's legal holistic theory, based on coherent interpretation between the precise legal description (fit) and the norm seeking (substance) is no more than appropriate for the settlement of this issue. Therefore, The chapter will try to apply Dworkin's theory to analyze the formation of CIL (that is, the determination of CIL in justice). Conclusion of the study was that the determination of CIL should mixed the two demenstions coherently, rather than substitute one for the other. At last, the paper uses the theory to interpret whether the NATO military action against Iraq led by the US, so-called "preemptive defense" strategy can constitute a precedent of CIL of this kind.The final is some attached words: China and the creation of CIL. Although China has not accepted the jurisdiction of the ICJ, but because the formation of CIL is based on State practice, and the connotation of contemporary State practice has been greatly expanded, so that China can still take part in international relations through its various practical activities, such as express their views and recommendations, contracting practices, foreign policy and national statement in the United Nations and other international organizations to take part in the creation of CIL. Especially, as a big developing country, China can represent the vast number of developing countries for the establishment of new international political and economic order and wage a vigorous battle to contribute the creation of new CIL rules. But at the same time, China should remain vigilant and prudent to make speech of State practice so as to safeguard the Western powers from seeking for pretexts favor of them from our domestic policy, legislative or judicial decisions as the creation of CIL wherefrom. |