Em defesa de uma teoria discursiva do costume internacional

Abstract

The dissertation aims to develop a theoretical perspective that understands customary international law (CIL) as a discourse construct, seeking inspiration in the constructivist theory of International Relations, and also in Linguistics insights. Considering the limits of classical and contemporary theoretical frameworks about customary rules, the theory presented on this work aspires to solve four main problems identified on the orthodox doctrine about CIL: a) the plurality of understandings about the two constitutive elements of custom; b) the so-called chronological paradox, resulted from the majority view according to which the psychological requirement of CIL refers to a belief that a regularity of conduct is legally obligatory; c) the difficulty in explaining how new customary rules emerge or how the old ones change; and d) the fact that, contrary to what the traditional conception asserts, international practice is not an objective aspect, but in reality it is a subjective one, just like opinio juris sive necessitatis. In summary, the dissertation argues that through legal reasoning state officers constantly reinterpret the meaning and the extent of customary rules, and if these interpretations are not successfully challenged and, besides, if they are endorsed and replicated by other states, a new custom which actually would have already been contained in a latent manner in preexisting law may come into being.