(1)

When judicial legislation occurs, and its basis is the practice of States, does this mean that
such practice is now a custom? Explain your answer.
ANSWER:
YES, such practice of State can now be a “custom”.

There are two main elements of custom, which are the State practice and opinion juris.
Under State practice, the following sub-elements must concur - uniformity and generality. Such
state practice is already present as it was the basis of the judicial legistlation.

The creation of a law implies that such will be abided by the citizens it covers. This
creates the existence of the second main element of a custom which is “opinio juris”. Such
creation would give legal obligation to act or not do such practices of States. With the presence
of both main elements, such judicial legislation can now also be considered as custom.

(2)
Can judicial decision which has all the elements of a custom be considered customary?
Explain your answer.
ANSWER:

YES, it should still be considered as customary.

If such judicial decision is ruled based on the State practice and opinio juris, then it
should be customary.