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Customary International Law & the Protection of Minorities

Customary International Law & the Protection of Minorities. Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, UK. What is ‘Customary International Law?’. Source of Public International Law

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Customary International Law & the Protection of Minorities

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  1. Customary International Law & the Protection of Minorities Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, UK

  2. What is ‘Customary International Law?’ • Source of Public International Law • Article 38, Statute of the International Court of Justice, United Nations Charter, 1945 • Other sources: • Treaties • General principles • Academic Writings & Judicial Decisions

  3. Problems with ‘Customary International Law’, Minorities & Indigenous Peoples • State Centric • ‘Consistent Practice’ • Verifiability & Consistency • In Written Format • Not subject to Change • Slow evolution

  4. ‘International Custom’, Minorities, Indigenous Peoples & Courts of Law • ‘Custom’ v ‘Usage’ • Evidence of Custom • Elements of Custom • Uniformity and Consistency of Practice • Duration • Generality of practice • Opinio juris et necessitates

  5. Emerging Difficulties with ‘International Custom’ in Courts • Burden of proof • Bilateral relations and local customs • Opinio juris • State practice

  6. Codification of Custom • The Role of Institutions: • United Nations • International Law Commission • World Trade Organisation • Council of Europe • International Labour Organisation • World Intellectual Property Organisation • Bilateral Treaties & Agreements • Courts (International, Regional, National) • Domestic Statues • Contributions from jurists

  7. Relationship between Custom & Culture • Culture is the manifestation of practice dictated by custom. It is the primary source for normative systems. (An-Na’im) • ‘Culture is a network of perspectives in which different groups hold different values and views, and in which some groups have more power to present their vision as the true culture…’ (Ibawoh) • ‘Since culture needs to respond to different & competing individual and collective needs and aspirations, it tends to combine stability and continuous change, offering its adherents a range of options and seeking to accommodate varying responses to its norms…’ (An-Na’im)

  8. Evolving Battle between ‘Formal Law’ & ‘Traditional Law’ • Evidence: Land rights cases • Decisions concerning the codification of intellectual property rights • Decisions concerning unitary legal systems • Antagonism towards legal pluralism

  9. Formal Law: Some Generalisations • Based on Western legal principles • Monopoly of Law • Focused on individual liberty • Imposed by colonialism • Codified in Writing • Attempts to create egalitarian society

  10. ‘Traditional law’: Some Generalisations • Community oriented value system • Developed over time • ‘Indigenous’ • Based on cultural practices • Oral • Patriarchal

  11. Perception of the Clash • West: • Process of civilisation • Universality of rights • Protection of the individual • East: • Interference • Hurts of colonialism • Neo-colonialism • Different agenda viz. community basis

  12. Maintenance of the Formal over the Traditional • The role of ‘western’ elites • The impact of Multinational Corporations • The role of the State • The Human Rights Agenda

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