THE NECESSITY OF OPINIO JURIS IN THE FORMATION OF CUSTOMARY

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,

morality, or simple political expediency.

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

that they are conforming to what amounts to a legal obligation.2

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

examine a compelling alternative perspective.

Arguments Against the Need for Opinio Juris in the Formation of

Customary International Law

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

existence of opinio juris is often assumed or implied.

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.

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is on custom. Of course, many commentators have suggested that this wording is infelicitous

because, in fact, it is a general practice accepted as law that binds states.

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

belief is necessarily erroneous before the norm is actually created.5

Moreover, a compelling argument can be made that many norms deserve to be

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.

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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

give rise to a legitimate expectation of similar conduct in the future.7

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

Central Element of Customary International Law

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).

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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

eliminates some of the problematic aspects of the traditional definition.

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.

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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

state an opinio juris requirement.11

Naturally, doctrinal formulations of the elements of customary international law cannot

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.

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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

views of the generality of states.

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

informal legislation, while treaties are explicit legislation.

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.

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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

different regularities of state behavior] become customary law.19

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).

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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

on a foundational ethical principle, recognized by states themselves in such instruments as the

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

it comports with certain fundamental ethical principles in contemporary international law

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.

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