- •I. Sources of international law as applied by the International Court of Justice
- •What is the force of a treaty for a State which has signed it but has not ratified it yet?
- •Can a third State be bound by a provision of a treaty?
- •What is the relationship between a treaty and jus cogens norms?
- •Jus cogens
- •Erga omnes
- •Principles of interpretation of a treaty. How can travaux preparatoires be relevant to the treaty interpretation?
- •What is customary international law? What are the elements of customary international law?
- •International customary law
- •How does a rule become customary international law?
- •Two criterias
- •Silke Sahl What is Customary International Law?
- •Evidence of Customary International Law
- •§ 103 Evidence of International Law
- •What is opinio juris? How can it be proven?
- •What is State practice? Where can it be found?
- •1) Both physical and verbal acts of States constitute practice that contributes to the creation of customary int. Law.
- •2) The practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law.
- •2) State practice concerned must be both extensive and representative.
- •3) The time necessary to form a rule of customary international law through the adoption of virtually uniform, extensive and representative practice.
- •Can a provision of a treaty become customary international law? If so, what is required for a norm of a treaty to become customary?
What is customary international law? What are the elements of customary international law?
http://www.law.berkeley.edu/library/classes/iflr/customary.html
International Customary Law consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.
The elements of customary international law include:
1. Widespread repetition by States of similar international acts over time (State practice).
2. Acts must occur out of sense of obligation (opinio juris).
3. Acts must be taken by a significant number of States and not be rejected by a significant number of States.
"Customary international law develops from the practice of States. To international lawyers, �the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern." (Public International Law in a Nutshell, pp. 22-23).
A peremptory norm (also called "jus cogens") is an international law rule or principle which is accepted and considered binding by the international community. Generally, these norms include prohibitions on use of force, crimes against humanity, war crimes, piracy, genocide, and slavery. Custom is the most commonly recognized source of peremptory norms.
Wikipedia
It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of obligation (opinio juris); Acts must be taken by a significant number of States and not be rejected by a significant number of States."[citation needed] A marker of customary international law is consensus among states exhibited both by widespread conduct and a discernible sense of obligation.
The International Court of Justice (case of USA vs Nicaragua in 1989) held that the elements of an international customary law would be Opinio Yuris (Past Judge Decisions or works of the most highly qualified publicists) which is then proven by existing state practices.
http://www.diakonia.se/sa/node.asp?node=993
International customary law
Unlike treaty law, which must be followed only by states that are parties to the agreement in question, international customary law is binding upon all states, no matter whether they have ratified a treaty, which contain the rule in question, or not.
How does a rule become customary international law?
When states act consistently in their international and internal relations during a long period of time, these actions/practises become accepted by the international community as applicable law.
International customary law is compromised of all the written or unwritten rules that form part of the general international idea of justice.
Two criterias
There are two criterias for identifying a rule as part of international customary law.
Opinio Juris - Opino Juris is the expressed opinion of states that their actions have a legal basis. It is thus states themselves (subjective criteria) that recognise certain legal practices or rules as being legally binding.
Usus - Customary law is confirmed through the actions of states (objective criteria) in accordance with what is expected of them by international jurisprudence. States' actions are manifested through their official statements and actual actions.
International customary law is based on prolonged and consistent actions by most states in the world. When states act constintently in their international and internal relations during a long period of time these actions/practices become accepted by the international community as applicable law.
Examples of international customary law are the right to life, the prohibition of torture, and that civilians should not be the object of an attack.
http://www.nyulawglobal.org/Globalex/Customary_International_Law.htm#_ednref1