Customary International Law Essay

1743 words - 7 pages

According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.

The first element of international law is state practice. There are certain behaviors that are regarded as customs once they are practiced by a substantial amount of states over a prolonged period of time. However, it is important to note that this standard is not rigidly followed. The significance of duration and uniformity of practice is determined on a case-by-case basis. For example, in the Nicaragua v. United States case, the International Court of Justice held that consistency of a state practice was far more important than pervasiveness of state practice: “It is not to be expected that in the practice of states that applications of the rules in question should have been perfect…the Court does not consider that (Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26))”. However, this decision is contested by cases such as the Anglo-Norwegian case and the North Sea Continental Shelf case in which the International Court of Justice argued that pervasive behavior took precedence over consistency of state practice (Shaw 77). Although there is some uncertainty surrounding whether state practice is more important than ubiquity or vice versa, the International Court of Justice (and its predecessor, the Permanent Court of Justice) seldom mentions the importance of duration of state practice. This factor is largely dependent on the circumstances and type of practice.

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