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The Relationship between Treaties and Customary International Law in Relation to

Opinio Juris

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The Relationship between Treaties and Customary International Law in Relation to

Opinio Juris

Introduction

Public International Law is a fundamental aspect of legal studies that governs the

relationships between sovereign states and other international actors. It consists of various

sources, including treaties and customary international law. Treaties are formal agreements

between states, while customary international law refers to the unwritten rules and practices

followed by states out of a sense of legal obligation. This essay will explore the relationship

between treaties and customary international law in the context of opinio juris, which is the

belief that certain actions are required by law.

Treaties and Customary International Law

Treaties are widely recognized as one of the primary sources of international law.

They are formal agreements between states, creating legal obligations upon ratification or

accession. Treaties can be bilateral, involving two states, or multilateral, involving multiple

states. They address various matters, such as human rights, trade, and environmental

protection. Treaties are binding upon the states that have ratified or acceded to them, and

their provisions prevail over conflicting domestic laws.

On the other hand, customary international law is derived from the general and

consistent practice of states, followed out of a sense of legal obligation (opinio juris). It arises

when states consistently behave in a certain manner, believing that they are legally obligated

to do so. Customary international law is considered binding upon all states, regardless of

whether they have explicitly consented to its rules. It forms an essential part of the

international legal framework.

Relationship between Treaties and Customary International Law

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The relationship between treaties and customary international law is complex and

interdependent. Treaties can contribute to the formation of customary international law

through their practice. When states consistently and uniformly implement treaty provisions,

their behavior can establish a new customary norm. This occurs when the actions of states

reflect a belief in the existence of a legal obligation beyond the specific treaty provisions. For

example, the provisions of the Geneva Conventions on the treatment of prisoners of war have

been recognized as customary international law.

Furthermore, treaties can also codify existing customary international law. When

states negotiate and adopt a treaty that reflects existing customary norms, it reaffirms and

reinforces those norms. Treaties can provide a platform for states to express their opinio juris

and solidify customary practices into a legally binding instrument. For instance, the United

Nations Convention on the Law of the Sea codified various customary rules relating to

maritime boundaries and resource exploitation.

Opinio Juris and Customary International Law

Opinio juris is a crucial element in the formation of customary international law. It

represents the belief of states that their actions are legally required. Opinio juris can be

inferred from the consistent and uniform behavior of states over time. When states engage in

a particular practice out of a sense of legal obligation rather than mere convenience, opinio

juris is demonstrated.

In the context of treaties, opinio juris plays a significant role. States may ratify or

accede to a treaty based on their belief that the treaty provisions reflect existing customary

international law. Their consent to the treaty can reinforce and contribute to the formation of

customary norms. Additionally, opinio juris can evolve over time, leading to the modification

or abandonment of existing customary norms. States may gradually change their behavior,

indicating a new understanding of legal obligations.

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Conclusion

The relationship between treaties and customary international law regarding opinio

juris is symbiotic. Treaties can contribute to the formation and codification of customary

norms, while customary international law can influence the interpretation and implementation

of treaty provisions. Opinio juris serves as a crucial element in the development and

evolution of both treaties and customary international law. By understanding this

relationship, legal scholars and practitioners can navigate the complex landscape of public

international law more effectively.

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References

- Brownlie, I. (2016). Principles of Public International Law. Oxford University Press.

- Koskenniemi, M. (2011). The Politics of International Law. Hart Publishing.

- Shaw, M. N. (2017). International Law. Cambridge University Press.

- Simma, B., & Alston, P. (Eds.). (2012). The Sources of International Law. Oxford

University Press.