The making of custom through sanctions of international organisations
in International organisations, non-State actors, and the formation of customary international law
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This chapter argues that international organisations can be conducive to the emergence or consolidation of the customary status of those primary rules of international law which their sanctions are meant to vindicate. It shows that the contribution of sanctions to the formation of custom varies significantly depending on the concrete situation. In cases where international organisations react to breaches of obligations that already have an erga omnes status and their standing to adopt sanctions is uncontested under the law of countermeasures, international organisations contribute to consolidation and clarification of custom. Ironically, however, the potential for customary law-making is greater when the erga omnes status of an obligation towards which an international organisation is reacting to is not yet confirmed. The illegality or legal uncertainty shrouding such sanctions under the law of responsibility does not preclude their potential in customary law-making – in fact, it may maximise their contribution. In discussing these situations, the present chapter makes an important distinction between the act of sanction and the act of protest. This makes it possible to argue that it is protests accompanying the act of sanction that have a role to play in custom-making, rather than the act of sanction itself.

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