Abstract

The concept and application of customary international law in modem
international law are often controversial. Much debate exists on the
definition of this law and its consistent application. Many questions
arise such as what do we ask of international law? What does it need to
be? What constitutes 'good' international law or does it even exist?
Should there be just one source of international law or are several
sources better? How does one determine whether international law has
failed or that it is a myth or fiction instead?

This article will argue that the definition debate is poorly defined. For
example, it misses the point on the true value of customary
international law by assuming that a clear definition is advantageous
and therefore needed. In some of the debates on its consistent
application this has focused mainly on a limited number of cases and
fails to convert into a serious question. The article will argue that it is
wrong to assume that inconsistency in the approach to the substance of
customary international law is an issue. Instead, the issue concerns the
person making the assumption more than the assumption itself. Finally,
it will be shown that customary international law influences and
regulates state behaviour, a fact that gives this law its legitimacy. As a
result, customary international law is far from being a fiction or myth.
On the other hand, it is a valuable source of international law due
particularly to its flexible nature.