Igbani, Benneth Harrison (2018) In the light of Article 38(1)(B) of the ICJ's Statute; can normative value be attributed to resolutions of international organizations and soft law instruments as sources of customary international law? (PhD thesis), Kingston University, .

Abstract

The formation of customary international law (CIL) remains controversial attracting a plethora of literature from practitioners of international law, commentators, sociologists, political scientists. It is against this backdrop that the research question is couched; is the growth of activities of hybrid and international courts circulating newer sources of customary international law based on resolutions of the United Nations and other international organizations, non-binding treaties and courts' statutes provisions? The uncertainty in constructing rules of CIL is increasingly attracting scholarly research with diverse views among scholars and jurists, but the consolation is that recent international jurisprudence is gradually addressing these controversies by harmonising the different theoretical frameworks and circulating newer sources of CIL. It is thus argued that states are no longer the primary actors but some NGOs, international and transnational actors are increasingly participating in the formation of customary norms thereby giving credibility to the presupposition and theme of this study that CIL can be formulated from different sources contrary to the traditional method of formulating international custom from one single source; state practice supported by opinio juris. The trending practice is evinced from the activities of international organisations including international and hybrid courts whose recent practice go beyond mere interpretation and application of rules to circulation of newer customary sources, implying that they are playing fundamental roles in the progressive development of international law. The study would thus demonstrate the trending practice of evidencing customary norms from international organisations, can case-law of international and hybrid courts including decisions of national courts where necessary. It is also going to demonstrate that non-state actors are helping to reshape the understanding of many concepts of international law thereby blurring the distinction between hard and soft law on the one hand; and between state actors and non-state actors on the other hand.

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