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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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Legitimacy Deficit in Custom

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Ben ChigaraLecturer in Law, University of Leeds

ISBN13: 9780754620778
ISBN: 0754620778
Published: November 2001
Publisher: Ashgate Publishing Ltd
Format: Hardback
Price: Out of print

A discussion of customary international law (CIL). Throughout the study particular values are examined for their potential effect on the legitimacy of the process of custom. The writer argues that, in order to achieve legitimacy enhancing transparency in the process of custom, it must be acknowledged first that the power applied by international tribunals when they inaugurate new norms of customary international law always creates categories of ""dominance"" and ""subservience"", ""inclusion"" and ""exclusion"". Such an acknowledgement would foster a situation where both the power applied by tribunals and the manner in which it is applied, can legally be scrutinized for excesses that limit first the transparency of the process of custom, and second the legitimacy of norms of customary international law.

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Juridification of custom; international organization and custom; legitimacy deficit in Article 38(1)(b)'s jurisprudence; deconstructionism, normative theory and custom; inauguration of norms in CIL in the Corfu Channel Case; custom and state objection to nascent norms of CIL; twining custom with treaty in the North Sea continental shelf cases; conclusions.