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INTERNATIONAL LAW
Brian D. Lepard
Law Alumni Professor of Law
University of Nebraska College of Law
Discussion Paper for Panel on Does Customary International Law Need Opinio Juris?
Does customary international law need opinio juris? One might suppose the answer is,
of course. After all, the well-accepted doctrine of customary international law holds that a
customary international legal norm can only be formed from the combination of state practice
consistent with the norm and opinio juris sive necessitatis, abbreviated as opinio juris a belief
by states that their practice is legally required by the norm. They must follow the practice
because of this belief rather than because of the demands of courtesy, reciprocity, comity,
For example, in the 1985 Continental Shelf Case (Libya v. Malta), the International Court
of Justice (ICJ) declared that the substance of customary international law must be looked for
primarily in the actual practice and opinio juris of States.1 Furthermore, in the 1969 North Sea
Continental Shelf Cases, the ICJ stated that not only must the acts concerned [constituting state
practice] amount to a settled practice, but they must also be such, or be carried out in such a way,
as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel
1
Continental Shelf Case (Libya v. Malta), 1985 I.C.J. Rep. 13, 29, para. 27. See also Nicaragua Case, 1986 I.C.J.
Rep. 14, 97, para. 183 (stating that the Court had to direct its attention to the practice and opinio juris of States).
2
North Sea Continental Shelf Cases, 1969 I.C.J. Rep. 3, 44, para. 77 (emphasis added).
In this paper, I will defend the view, manifest in these ICJ opinions, that opinio juris is
required and even go a step further than the traditional doctrine in doing so. But first, let me
A number of scholars have argued that customary international law does not, in fact,
require opinio juris. They have done so based both on the way in which courts have actually
applied customary international law and on certain theoretical grounds. For example, my co-
panelist Dr. Maurice Mendelson has pointed out that the ICJ in much of its jurisprudence and
notwithstanding its doctrinal formulation in the above-mentioned decisions - does not trouble
itself to look for proof of opinio juris where there is a well-established practice. Dr.
Mendelson has accordingly taken the position that in standard cases . . . the subjective element
[i.e., opinio juris] is superfluous.3 It is not, he has said, an invariable requirement that opinio
juris be present for a practice to constitute customary law.4 There is no doubt that as an empirical
matter many decisions of the Court and its predecessor, the Permanent Court of International
Justice, have tended either not to mention opinio juris at all or to give it short shrift. The
A theory of customary international law that minimizes the importance of opinio juris, or
at least its proof, might also gain support from the literal language of Article 38(1)(b) of the
Statute of the ICJ, which affirms that the court shall apply, in addition to conventions,
international custom, as evidence of a general practice accepted as law. The literal focus here
3
Maurice Mendelson, The Subjective Element in Customary International Law, British Yearbook of International
Law 66 (1995), 177, 206-207.
4
Ibid., 183-84.
2
is on custom. Of course, many commentators have suggested that this wording is infelicitous
Yet another reason to discount the importance of opinio juris might be that it is very
difficult to prove. After all, states are conglomerations of multiple political and governmental
actors, so how can they have objectively ascertainable beliefs in the same way that individuals
can? These various actors often speak with different voices, again creating problems with
determining a particular belief by the state as a whole. And in any event, states are often not
very forthcoming about their views concerning whether particular behaviors in which they
engage are motivated by a belief that they are legally required. That is, there are serious
problems with proving opinio juris relating to any particular practice or norm, which is one
reason that courts often avoid the issue. A related doctrinal difficulty with the opinio juris
requirement is that when applied to new norms it results in a well-known paradox: in order for
a new customary norm to form, states must believe they are already bound by the norm, but their
recognized as customary law because widespread state practice can create legitimate
expectations by other states that the practice will continue. A moral principle of fulfillment of
legitimate expectations thus may provide more theoretical support for a position that sees
customary law as consisting essentially of state practice. Dr. Mendelson has affirmed in this
connection that where there is a constant and uniform practice of sufficient generality, in a legal
context, it seems legitimate for members of the community to expect all others to continue to
5
On this paradox, see, e.g., Jrg Kammerhofer, Uncertainty in the Formal Sources of International Law:
Customary International Law and Some of Its Problems, European Journal of International Law 15 (2004), 523,
534.
3
observe that practice.6 His argument has been accepted by the International Law Association
(ILA) in its 2000 report on the formation of customary international law, which appears to
promote this rationale to the status of general justification for recognition of customary norms.
The ILA has indeed formulated a general definition of customary law that omits an explicit
mention of opinio juris. The report declared that a rule of customary law is one which is
created and sustained by the constant and uniform practice of States and other subjects of
international law in or impinging upon their international legal relations, in circumstances which
Finally, a view that consistent state practice forms the essence of customary
international law, without the need for opinio juris, arguably has the merit of avoiding some
perceived problems with giving too much weight to opinio juris. In particular, it grounds
customary norms and prevents recognition of norms that are purely aspirational that states
endorse rhetorically, but that they manifestly fail to put into practice. Scholars have persuasively
argued that great harm is inflicted on the effectiveness of the international legal order when
every aspirational norm, regardless of practice, is elevated to the rank of customary law.
Towards a New Theory of Opinio Juris: Why Opinio Juris is Necessary and Why It Is the
Despite these arguments in favor of reducing the theoretical and practical importance of
opinio juris, I will argue that opinio juris is essential to the formation of customary international
6
Mendelson, The Subjective Element, 208.
7
International Law Association, Statement of Principles Applicable to the Formation of General Customary
International Law, adopted by Resolution No. 16/2000, London Conference (2000), section 1(i) (emphasis added).
See also ibid., section 1, Commentary, para. (b)(4) (stating that it is not usually necessary to demonstrate the
existence of the subjective element [i.e., opinio juris] before a customary rule can be said to have come into being)
(emphasis in original); section 16 (similar).
4
law, and indeed, is its central element. I have elaborated a new theory of customary international
law that incorporates this view in my book Customary International Law: A New Theory with
Practical Applications.8 Moreover, I have suggested a new understanding of opinio juris that
Of course, I have already noted that the traditional doctrinal definition of customary
international law requires opinio juris, and this is an obstacle that any theory minimizing or
eliminating it must overcome. Article 38(1)(b) of the ICJ Statute, however ambiguous and open
to interpretation, does require that a general practice be accepted as law thus incorporating a
subjective requirement for customary law. The ICJ has now adopted it as a formal requirement
in such cases as the 1985 Continental Shelf Case (Libya v. Malta), and it has been the subject of
extensive application and discussion in many national judicial decisions applying customary law,
such as those in the U.S. applying the Alien Tort Statute. Moreover, as a number of scholars
have pointed out, modern-day formulations of the definition of customary international law
borrow consciously from civil code provisions in civil law systems that recognize customary law
as a source of law, and these generally require, explicitly or implicitly, that a custom be accepted
as law in order for it to be applied by a court. For example, the Louisiana Civil Code affirms in
Article 3 that custom results from practice repeated for a long time and generally accepted as
having acquired the force of law. Custom may not abrogate legislation.9 The 1987 Revision
Comments on this article state: According to civilian theory, the two elements of custom are a
long practice (longa consuetudo) and the conviction that the practice has the force of law
(opinion necessitatis or opinio juris). The definition of custom in Article 3 reflects these two
8
Brian D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge:
Cambridge University Press, 2010).
9
Louisiana Civil Code, art. 3. Acts 1987, No. 124, 1, available at http://www.legis.state.la.us/
lss/lss.asp?doc=110037.
5
elements.10 To give another illustration, Article 1 of the Swiss Civil Code of 1907 allows for
reference to customary law in the absence of a statutory provision, although it does not explicitly
be dispositive of the question of how necessary is opinio juris from the perspective of how
customary law is actually identified and applied by courts or the alternative, normative issue of
how it should be identified and applied by courts. With respect to the jurisprudential record,
there is as much evidence that courts focus on opinio juris as there is evidence that they ignore it.
To give one well-known example, in the 1986 Nicaragua Case, the ICJ, while repeating the
familiar two-fold definition requiring both state practice and opinio juris, went on to emphasize
the latter in finding that norms on the nonuse of force and nonintervention had achieved
customary law status despite contrary state practice. It said: In order to deduce the existence of
customary rules, the Court deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that rule, not as indications of the recognition
of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained within the rule itself,
then whether or not the States conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule.12 Indeed, the ICJs decision was widely
criticized for having ignored or given insufficient attention to state practice.13 More generally, in
10
Quoted in Rudolph B. Schlesinger et al., Comparative Law: Cases-Text-Materials (New York: Foundation Press,
6th ed.1998), 723 n.8.
11
Available at http://www.admin.ch/ch/e/rs/2/210.en.pdf. For examples of other civil code provisions referring to
customary law, see the provisions quoted in Schlesinger, Comparative Law, 721-25.
12
Nicaragua Case, 1986 I.C.J. Rep. 14, 98, para. 186.
13
See Lepard, Customary International Law, 133.
6
the human rights field, courts have often examined human rights declarations and treaties, and
statements of governments in favor of human rights, in finding that a norm is one of customary
law, and have paid less attention to state practice contrary to the putative human rights norm.
There are good normative reasons for courts to be looking for opinio juris. Courts are,
after all, applying a legal norm, not practice itself. That is, there must be some mediating
process by which state practice is transformed into a legal norm. In a world of sovereign states,
that process is opinio juris. In essence, states make law for themselves by determining that a
particular practice should give rise to an appropriate legal norm. Indeed, some theorists
emphasizing sovereignty and voluntarism have taken the position that a state can never be
bound by a customary norm without that states consent a kind of individual opinio juris.14
However, most theorists believe, and in my view appropriately, that opinio juris is based on the
Moreover, I have argued that opinio juris is best conceived as a collective judgment on
the part of a majority of relevant states that a particular norm ought to be or ought to remain the
law, which may be evidenced by practice consistent with the norm. This is in keeping with a
normative viewpoint that views states as members of a community of states that has adopted
certain forms of legislation for itself as a community. Customary law can be viewed as
At this point several important objections may be raised. One is that under traditional
doctrine, opinio juris requires a belief by states that a practice is already required, not that it
should be required. This definition works well enough for existing norms, but creates the
paradox described above in relation to emerging norms. The conception here avoids that
14
On this theory, see Mendelson, The Subjective Element, 184-94.
7
paradox. A number of legal scholars have reinterpreted opinio juris similarly.15 Indeed, my co-
panelist Dr. Jrg Kammerhofer has affirmed that states behavior is . . . our only guide as to
what they want, or believe, to be the law (i.e., opinio juris).16 Furthermore, there is substantial
evidence, as I demonstrate in my book, that courts often interpret opinio juris in this forward-
looking way.17
A more fundamental objection is that this conception of opinio juris and customary law
more generally dispenses with or at least minimizes the requirement of general state practice,
by viewing state practice as evidence of opinio juris. Indeed, just to be clear, in my general
theory of customary international law I have taken the position that state practice is not in fact an
independent requirement for a customary legal norm, but rather serves as evidence of opinio
juris, which is the essence of customary law. This view appears to represent almost the polar
opposite of the opinio juris-minimizing theory I described at the outset of my paper. I have
already summarized there the many arguments in favor of the state practice requirement. So let
us consider why state practice, after all, is best viewed as evidence of opinio juris.
The most important problem is that states in the international community engage in all
kinds of practices in multifaceted situations. It is inevitable that certain patterns of practices will
emerge, some of them involving a majority of states in the interstate system. According to a
state practice-focused theory, this should be enough to create a customary norm, at least, in the
words of the ILA report, if the practice occurs in circumstances which give rise to a legitimate
expectation of similar conduct in the future. There is nothing in this theory to limit practice-
creating norms to those that states believe ought to be the law unless one views the legitimate
15
For examples of such scholars, see Lepard, Customary International Law, 112, 118.
16
Jrg Kammerhofer, Uncertainty in the Formal Sources of International Law, 525 (emphasis added).
17
See Lepard, Customary International Law, 118-19.
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expectations caveat to serve this limiting function. To take one obvious example, there is
evidence that most states in the world have used torture under some circumstances. They may
even have a legitimate expectation that other states will do so. Does this create a customary
norm permitting torture? Those who argue no would point to simultaneous practices by states
of denying they use torture and of adopting laws prohibiting it.18 How, then, can we sort out
what customary legal norms, if any, are created by these contradictory practices? We need some
method of interpreting practice to establish a norm. The belief of states about the desirability of
such a norm serves this interpretative and mediating function. As my co-panelist Dr. Jrg
Kammerhofer has stated, Only the subjective element [i.e., opinio juris] lets us know which [of
However, if this approach is pushed to its logical conclusion, we must ask: Can a
customary norm be created alone by opinio juris (as redefined), without any state practice?20 In
theory, that is possible, but highly unlikely. The absence of any corroborating state practice
would in fact be evidence that states do not believe the norm ought to be the law. In my book, I
elaborate upon criteria for determining the weight to give state practice as evidence of opinio
juris in the case of different types of norms. The traditional doctrine of customary law fails to
distinguish among different types of norms governing different issue areas, but rather adopts a
one size fits all approach. It is important, instead, for the jurist or government lawyer to
evaluate state beliefs in the context of the type of problem states potentially are seeking to solve
through a legal norm. For example, international trade issues involving coordination norms
18
Some scholars, such as Bruno Simma and Philip Alston, view this reinterpretation of the relevant state practice
regarding torture as disingenuous. See Bruno Simma and Philip Alston, The Sources of Human Rights Law:
Custom, Jus Cogens, and General Principles, Australian Yearbook of International Law 12 (1988-1989): 82-107.
19
Kammerhofer, Uncertainty in the Formal Sources of International Law, 528.
20
Bin Cheng, among others, has advocated such a view, which is similar but not identical to mine. See, e.g., Bin
Cheng, United Nations Resolutions on Outer Space: Instant International Customary Law?, in International
Law: Teaching and Practice, ed. Bin Cheng, 237-62 (London: Stevens & Sons, 1982), 251 (affirming that
international customary law has in reality only one constitutive element, the opinio juris).
9
ought to be evaluated differently in this regard from human rights norms. We might legitimately
demand more evidence of uniform state practice to establish opinio juris in the case of the former
than the latter because the absence of consistent state practice would defeat the coordinating
purpose of the norm, whereas in the case of human rights norms any observance of the norm,
despite widespread contrary practice, would further the purpose of the norm.
The example of torture highlights another problem with the traditional definition of
opinio juris: that is does not incorporate an ethical analysis. In evaluating the legal significance
of state practice, states must determine whether the practice is desirable, and in turn (at least to
some degree) whether it is ethical. At the very least, if states have not expressed clearly their
views about the desirability of recognizing a norm as law, we ought to presume that they do not
wish to recognize a blatantly immoral one, and demand strong proof otherwise. I have worked
out in my book a detailed system for evaluating the ethical desirability of particular norms based
1948 Universal Declaration of Human Rights,21 of unity in diversity. Unity in diversity asserts
that morally all states and peoples should be united, respectively, as members of a community of
states and a community of individuals. It is thus grounded in a concept, quite familiar to the
great natural law theorists, such as Hugo Grotius, of the unity of the human family.22 At the
same time, it insists on respect for national and other affiliations, as well as individual freedom
and diversity of thought, conscience, belief, religion, and expression. I have shown, moreover,
that in ascertaining customary law courts have in practice taken into account the ethical impact
of the putative customary norm. This was certainly true in the ICJs decision in the 1986
21
See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 1.
22
See, e.g., Hugo Grotius, De Jure Belli ac Pacis Libri Tres, translated by Francis W. Kelsey (New York: Oceana;
London: Wildy and Son, 1964), book 2, chap. 25, sect. 6, 582 (referring to the mutual tie of kinship among men).
10
Nicaragua Case, for example, as well as its 1951 Reservations to the Genocide Convention
Advisory Opinion.23
In short, I suggest that opinio juris not only is necessary to the formation of customary
law, but is its central element. Moreover, it should be reinterpreted to focus on the beliefs of
states about the desirability of implementing a legal norm. In particular, I have argued that a
norm ought to be considered customary law if states generally believe that is desirable, now or in
the near future, to institute the norm as legally binding on the global community of states, and if
anchored in the principle of unity in diversity. State practice may be important evidence of this
belief, particularly in certain contexts, such as coordination problems, but it is not an essential
independent requirement for recognition of a norm as customary law. This is especially true for
norms, like human rights standards, that have a potent ethical content.24
The theory emphasizes opinio juris as opposed to state practice, but also redefines the
conception of opinio juris as a belief by states that a norm should be or remain law, rather than
that it is already law. It furthermore introduces an analysis of the impact of a norm on the
realization of fundamental ethical principles, which can assist in making inferences about what
states believe if their views are not clear. The theory thereby solves some of the serious
problems with treating any generality of state practice as customary law, as well as with the
traditional bipartite definition of customary law as consistent practice and opinio juris,
understood as a belief that a norm is already law. At the same time, the theory insists on a
rigorous inquiry into the views of states using many sources of evidence of those views,
including but not limited to state practice, thereby distinguishing lex lata from lex ferenda.
23
See 1951 I.C.J. Rep. 15, 23 (referring to the legal prohibition of genocide in the Genocide Convention as
confirming the most elementary principles of morality).
24
See, e.g., Lepard, Customary International Law, 8.
11