Distinguishing the Legal Bindingness and Normative Content of Customary International Law

This Reflection argues that the distinction between legal bindingness and normative content can also be of great relevance with respect to the identification and functioning of customary international law. Drawing on a new approach to customary international law, it is specifically submitted here that opinio juris confers legal bindingness to custom while state practice provides normative content thereto. According to this understanding, the two constitutive elements of custom come to be seen as a reflection of the abovementioned distinction between legal bindingness and normative content that is commonly reserved to treaties. It is argued that such an account of customary law has the potential to provide a new understanding of the way in which the two constitutive elements of customary international law are theorized while simultaneously showing the irrelevance of whole debate on the so-called “chronological paradox” of customary international law. In making such an argument, this Reflection intends to contribute to the work conducted by the International Law Commission (hereafter the ILC) on the identification of customary international law.