Professional Documents
Culture Documents
INTERNATIONAL
LAW
Saifuz Zaman :: ZHSUST Law School ::
Summer 2016
ELEMENTS OF
CUSTOM
State
practic
e
Opinio
juris
Customar
y
internatio
nal law
1. State practice
a. What is practice
b. Evidence of practice
c. Uniformity and repetition of practice
d. Generality of practice
e. Time period
a. What is practice
Definition of state practice
Michael Akehurst in his influential article Custom as a
source of international law defined state practice as:
It is submitted that State practice covers any act
or
statement by a State from which views can be
inferred about international law.
b. Evidence of practice
The main evidence of customary law is to be found
in the actual practice of states, and a rough idea of
a states practice can be gathered from published
material. For example, newspaper, diplomatic
correspondence, policy statements, press releases,
the opinions of official legal advisers, official
manuals on legal questions, comments by
governments on drafts produced by the
International Law Commission, state legislation,
international legislation and national judicial
decisions, recitals in treaties and other international
instruments etc.
d. Generality of practice
The question of generality depends on the circumstances
of the case and on the rule at issue. General practice is a
relative concept and cannot be determined in the abstract.
It should include the conduct of all states, which can
participate in the formulation of the rule or the interests of
which are specially affected. In The Restatement (Third), it
is stated that:
A practice can be general even if it is not universally
accepted; there is no precise formula to indicate how
widespread a practice must be, but it should reflect
wide acceptance among the states particularly involved
in the relevant activity.
e. Time period
How much time is needed to be a custom?
In international law there is no rigid time element. It will
depend upon the circumstances of the case and the
nature of the usage in question. In certain fields, such as
air and space law, the rules have developed quickly; in
others, the process is much slower. Duration is thus not
the most important of the components of state practice.
The essence of custom is to be sought elsewhere.
2. Opinio juris
Remember what made a custom different than usage.
Franois Gny
(18611959)
first used the
term opinio
juris sive
necessitatis to
differentiate
legal custom
from usage.
A similar approach
occurred in the
North Sea
Continental Shelf
cases. Where the
ICJ held that state
practice should
have occurred in
such a way as to
show a general
recognition that a
RELATED CONCEPTS
Right of
Passage
over Indian
Territory
case 1960
(India vs.
Portugal)