customary IL

Question 1

elements for emergence of customary law

Answer 1

1. the conduct of subjects of IL
2. a sense of legal obligation that this conduct is allowed or required

Question 2

relevant state practice

Answer 2

• conduct of organs attributable to a subject of IL: national law, executive acts, national courts decisions
• dealing with inter-state facts (questions of IL)
• widespread and representative (don’t have to be universal)
• constant and uniform
• practice of specially affected subjects
• regional or even bilateral customary law possible!

Question 3

persistent objector

Answer 3

a state can exempt itself from applying a new customary rule by persistent objection during the norm formation - clearly expressed and maintained opinion

Question 4

required duration for customary law

Answer 4

temporary duration not required!!
but WIDESPREAD and VIRTUALLY UNIFORM practice

Question 5

opinio iuris

Answer 5

the general practice has to be accepted as law, the subject engages or refrains from a conduct because it considers IL requires this
Lotus case - difficult to prove a sense of legal obligation when the conduct is an ommission

Question 6

customary IL in austrian domestic system

Answer 6

• whether CIL has legal effect is determined in the constitution
• generally recognized rules of IL (also CIL and general principles of law) are part of austrian law

Question 7

general principles of law

Answer 7

principles common to the main legal systems of all states, mainly filling gaps in IL that arise when a situation isn’t regulated anywhere else

Question 8

unilateral legal acts

Answer 8

• can create legal effects if there is an intention
• basis: good faith and reciprocity

Question 9

judicial decisions

Answer 9

• subsidiary sources
• only help identify rules of IL
• judgements binding only between the parties
• they however still enjoy considerable authority which leads to de facto precedent