Lesson 5 Flashcards
What is International Custom?
a practice followed by international subjects and generally accepted by them as law.
Custom is fundamentally the result of an informal, unregulated, spontanous and decentralized process.
What is the Theory of Two Elements?
general practice (objective element) & accepted law (subjective element)
What is the Objective element?
what is usually done.
What are the 4 criteria for state practice?
(1) Practice needs to be recurrent, both
in time and over space
(2) Practice needs to be uniform and repeated (the factual or legal behaviour can be said to be the behaviour of States)
(3) Practice needs to be general (nº of States participating is more important than the frequency; plurality of States)
(4) Practice needs to be regular
and consistent over time (inconsistencies in State practice prevent the creation of a customary rule)
What is the Subjective Element?
the belief that practice is obligatory (“accepted as law”).
What is Opinio iuris?
it ethimologically means “an opinion
of law or necessity”. Second element necessary to establish a legally binding intl.
custom. It denotes a subjective obligation, in that a state perceives itself to be
bound by the law in question.
Example of Theory of Two Elements
North Continental Shelf Case, 1969
What is a General Customs?
universal in scope and, in principle, binding on all States, unless they have unequivocally and expressly objected to them during their period of formation (persistent objector rule). A litigant who objects to the application of a general custom must prove that he has rejected it in the period of formation (the burden of proof - onus probandi - rests on him).
What are Particular Customs?
they arise among a group of States withtheir own characteristics; will bind only a group of States. In the event of internationallitigation, they will have to be proved by the party alleging them (“
The party which relieson a custom of this kind must prove that it has been established in such a manner that ithas become binding on the other Party
“~Asylum case).
ICL, Text of the draft, A/CN.4/L.908*
Conclusion 16
Particular customary international law
Two parts of Particular customary international law
- A rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States
- To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a
general practice among the States concerned that is accepted by them as law (opinio iuris) among themselves.
Example of Customary Law
Asylum Case - Colombia v Peru [1950] ICJ 6
Two Types of Custom
General custom: the tribunal determines the existence of the custom. “Jura novit curia”
Regional or Local Customs: the State invoking the custom has to prove its existence
Establishment of Custom is done by virtue of (3 Steps)
- A pattern of claim
- Absence of Protest by States particularly interested
- and acquiescence by the other sates (reluctant acceptance of something without protest.)
What Is a Persistent Objector? What Concl. of the ICL Draft Text on International Customary Law?
a State has objected to a rule of customary international law while that rule was in the process of formation, the rule will not be opposable to such State for so long as it maintains its objection. Such State will be called
“Persistent Objector”. Conclusion 16.
