Sources of international law - Custom as a source of international law
3 important questions on Sources of international law - Custom as a source of international law
What are the two conditions for a rule to be accepted as customary international law?
1. State practice (objective element)
2. Opinio juris/ accepted as legally binding (subjective element)
2. Opinio juris/ accepted as legally binding (subjective element)
Why is the subjective element of opinio juris controversial? Which problems can arise when determining if opinio juris is applied by States?
- Difficult to ascertain what states believe to be the law, because states rarely explain why they act/refrain from acting
- Practice has to start somewhere. Odd to insist that a state that begins to depart from existing custom acts in the believe that the new behaviour is legally mandated.
- Practice has to start somewhere. Odd to insist that a state that begins to depart from existing custom acts in the believe that the new behaviour is legally mandated.
When is subjective element of opinio iuris particularly important for customary law?
a) When a state acts contrary to an existing customary rule. (why?)
b) Where circumstances indicate that a given practice comes from motivations that are unrelated to law. If conduct is ambigious.
c) When a state defends its breach by appealing to exceptions, its attitude confirms the rule and not weaken it.
b) Where circumstances indicate that a given practice comes from motivations that are unrelated to law. If conduct is ambigious.
c) When a state defends its breach by appealing to exceptions, its attitude confirms the rule and not weaken it.
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Topics that are related to Sources of international law - Custom as a source of international law
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Sources of international law - Custom as a source of international law - Introduction
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Sources of international law - Custom as a source of international law - The objective element (state practice)
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Sources of international law - Custom as a source of international law - The relationship between custom and treaty law
