Posted by Howard S. Schiffman on June 20, 2002 at 20:59:58:
In Reply to: Warsaw Convention posted by Marie Botsis on June 19, 2002 at 22:25:08:
See my comments in the thread below addressing the status of the Chicago Convention. I think the question you raise is similar. I doubt any treaty, no matter how widely followed by non-signatories could be considered customary law with regard to every element of the treaty. However certain elements of the treaty may qualify. If you are referring to the damage limit set by the Warsaw Convention, I suggest you would need to approach this as any other question of customary international law. First, is there a general practice (i.e., a "widespread and representative practice" among states)? Second, is it accepted as law (opinio juris) by a large number of states? Third, what is the status of the state you are concerned with? Have they followed the practice? For how long? What statements have they made to that effect? Ultimately, even if you can demonstrate custom, the state you concerned with must not be a "persistent objector". To that end, the state's status as a non-signatory to the treaty is certainly relevant evidence that they are a persistent objector to the purported custom. Whether other factors are necessary as well can only be determined on a case-by-case basis.
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: Trying to determine whether the Warsaw Convention forms part of Customary International Law? Lawyers in several non-signatory countries (such as Australia)refer to the Convention as authority, but I wonder whether they are able to make such assertions when their country has not signed and ratified the Convention?
: Your help would be very much appreciated.