Question:

What elements must be present in international practice to warrant the assertion there exist a
rule of customary international law on a particular point.

Introduction
Collectively the ‘sources’ of international law constitute that reservoir of authoritative rules
and principles to which the international lawyer must refer in order to ascertain the content of
the law. An international lawyer must be able to deduce rules of international law in order to
substantiate legal opinions supporting particular causes of action. Article 38(1) provides that
the court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply: a. international conventions, whether general or particular,
establishing rules expressly recognised by the contesting states, b international custom, as
evidence of a general practice accepted as law, c. the general principles of law by civilised
nations, d. subject to the provisions of article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of the rules of law.

The above provision, provide customary international law as a source of law. Article 38
refers to ‘international custom, as evidence of a general practice accepted as law’ – a general
recognition among states of a certain practice as obligatory. international customary law may
be obtained from these sources; Material Sources of Custom include: Diplomatic
correspondence, Policy statements, press releases, the opinions of official legal advisers,
official manuals on legal questions (e.g manuals of military law), executive decisions and
practices, orders to naval officers. Comments by governments on drafts produced by the
International Law Commission, State legislations, International and national judicial
decisions, Recitals in treaties and other international instruments, the practice of international
organs, and resolutions of the UN relating to legal questions.

In this work, the elements which must be present in international practice to warrant the
assertion there exist a rule of customary international law on a particular point. The elements
will be discussed by the use of the following authorities from the international court of
justice. The lotus case, the Anglo-Norwegian fisheries case, the Nicaragua fisheries case, the
asylum case and the north sea continental shelf cases.
Classical International law sees customary rules as resulting from the combination of two
elements The elements of international customary law are:
1. An established, widespread and consistent practice on the part of states – State
Practice and
2. Opinion juris sive necessitavis (opinion as to law or necessity)

In the Nicaragua case, the ICJ confirmed that custom is constituted by two elements, the
objective one of ‘a general practice’, and the subjective one of ‘accepted as law’, the so-
called opinio juris in other words the evidence of a general practice accepted as law’. The
court confirmed that the substance of customary law is to be found primarily in the actual practice
and opinion juris of states. These are sometimes referred to as the objective and subjective elements of
customs respectively1

STATE PRACTICE
The judicial locus classicus on the point is the ICJ judgment in the the north sea continental
shelf case; the court was discussing the process by which a treaty provision might generate a
rule of customary law, but its analysis is applicable to custom- creation generally:
Not only must the act concerned 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.
Duration provides the consistency and generality of a custom are proved, no particular
duration is required: the passage of time will of course be a part of the evidence of generality
and consistency. A long practice is not necessary.
Also there must be uniformity, consistency of practice. The traditional doctrine is that the
mere fact of consistent international practice in a particular sense is not enough, in itself, to
create a rule of law in the sense of the practice; an additional element is required. Complete
uniformity is not required, but substantial uniformity is. See the Fisheries case ICJ Reports
(1951), p.116 at 131, and the Genocide case. ALSO see the Asylum Case (ICJ Reports (1950),
at pp.276-277; US Nationals in Morocco Case, ICJ Reports (1952); p. 200; Nottebohm Case
ICJ Reports (1955), p 30; Right of Passage Case ICJ Report (1960)
In the Asylum Case, the court said that, ‘The party which relies on a custom ... Must prove that
this custom is established in such a manner that it has become binding on the other party ... That the
rule invoked ... Is in accordance with a constant and uniform usage practised by the states in question,
and that this usage is the expression of a right appertaining to the state granting asylum and a duty
incumbent on the territorial state. This follows from Article 38 of the Statute of the Court, which
refers to international custom ‘as evidence of a general practice accepted as law.’ this description of
custom as a constant and uniform usage, accepted as law has long been quoted as a convenient and
accurate formula.
State Practice by usage has been explained by the courts to mean a usage that is to be found in the
practice of states. The International law commission included the following in a non-exhaustive list of
forms state practice may take. They are Diplomatic Correspondence, the opinions of official
legal advisers.
Generality of the practice is an aspect which complements that of consistency. Universality in
practice is not required. The real problem here is to determine the value of abstention from
protest by a substantial number of states in face of a practice followed by some others. Again,
silence may denote either a tacit agreement or a simple lack of interest in the issue. See the
Lotus Case.

1
the Legality of Nuclear Weapons Case.
The elements of practice and opinion are closely intertwined the court spoke of the practice
as “evidence” of the existence of the opinion juris. 2 At certain times, there can be divergent
state practice. State Practice required to establish a rule of customary does not need to be the
practice of every single state of the world, as long as it is widespread and consistent. The
court does not consider that, for a rule to be established as customary, the corresponding
practice must be in absoluteky rigorous conformity with the rule.
Opinion juris et necessitatis:
Article 38 of the Statute of the International Court of Justice refers to ‘a general practice
accepted as law’. This means recognition by states of a certain practice ‘as obligatory’. In
other words a conception by states that the practice is required by, or consistent with,
prevailing international law. This is a psychological element required in the formation of
custom. The sense of legal obligation, as opposed to motives of courtesy, fairness, or

morality. The Lotus Case: The PCIJ held:

‘Even if the rarity of the judicial decisions to be found among the reported cases were
sufficient to prove in point of fact the circumstances alleged by the Agent for the French
Government, it would merely show that States had often, in practice, abstained from
instituting criminal proceedings , and not that they recognized themselves as being obliged to
do so; for only if such abstentions were based on their being conscious of a duty to abstain
would it be possible to speak of an international custom. The alleged fact does not allow one
to infer that States have been conscious of having such a duty; on the other hand ... There are
other circumstances
In the Lotus Case the Court was not ready to accept continuous conduct as prima facie
evidence of a legal duty and required a high standard of proof on the issue of opinio juris.
Also, in the North Sea Continental Shelf Cases ICJ Reports (1969), p.3, the ICJ was strict in
requiring proof of the opinio juris. The Court did not presume the existence of opinio juris
either in the context of the argument that the equidistance-special circumstances basis of
delimiting the continental shelf had become a part of general or customary law at the date of
the Geneva Convention of 1958, or in relation to the proposition that the subsequent practice
of states based upon the Convention had produced a customary rule. North Sea Continental
Shelf Cases

Held:
‘Although the passage of only a short time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked; - and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.’
US Nationals in Morocco Case:

2
International law, Evans page 123
The Court held: ‘In the present case there has not been sufficient evidence to enable the Court
to reach a conclusion that a right to exercise consular jurisdiction founded upon custom or
usage has been established in such a manner that it has become binding on Morocco’.
International courts and tribunals on occasion conclude that a rule of customary international law
exists when that rule is a desirable one for international peace and security or for the protection of
the human person, provided that there is no important contrary opinio juris.[46]  Examples of such
conclusions are the finding by the International Military Tribunal at Nuremberg that the Hague
Conventions of 1907 had hardened into customary law,[47]  and the finding by the International
Court of Justice in the Nicaragua case that the rule of non-intervention in the internal and external
affairs of other States was part of customary international law.[48]  However, when there was clear
evidence of contrary opinio juris by a number of States, including specially affected ones,
international case-law has held that the existence of a rule of customary international was not
proven, for example, the advisory opinion of the International Court of Justice in the Nuclear
Weapons case on the issue of whether the use of nuclear weapons was illegal, [49]  and the ruling of
the sole arbitrator in the Texaco v. Libya case on the issue of a possible change in the law relating to
compensation for expropriation.[50]