2) State practice concerned must be both extensive and representative.

It does not, however, need to be universal; a “general” practice suffices.36 No precise number or percentage of States is required because the criterion is in a sense qualitative rather than quantitative. It is not simply a question of how many States participate in the practice, but also which States.

In the words of the International Court of Justice in the North Sea Continental Shelf cases , the practice must “include that of States whose interests are specially affected”, because: (1) if all “specially affected States”

are represented, it is not essential for a majority of States to have actively participated, but they must have at least acquiesced (молча соглашаться, не возражать) in the practice of “specially affected States”; (2) if “specially affected States” do not accept the practice, it cannot mature into a rule of customary international law, even though unanimity is not required as explained.39

Who is “specially affected” will vary according to circumstances.

Concerning the question of the legality of the use of blinding laser weapons, for example, “specially affected States” include those identified as having been in the process of developing such weapons.

In the area of humanitarian aid, States whose population is in need of such aid or States which frequently provide such aid are to be considered “specially affected”.

With respect to any rule of international humanitarian law, countries that participated in an armed conflict are “specially affected” when their practice examined for a certain rule was relevant to that armed conflict.

Notwithstanding the fact that there are specially affected States in certain areas of international humanitarian law, it is also true that all States have a legal interest in requiring respect for international humanitarian law by other States, even if they are not a party to the conflict (see the commentary to Rule 144).

3) The time necessary to form a rule of customary international law through the adoption of virtually uniform, extensive and representative practice.

While some time will normally elapse before there is sufficient practice to satisfy these criteria, there is no specific time requirement. It is all a question of accumulating a practice of sufficient density, in terms of uniformity, extent and representativeness.41

9. Can actions ex gratia (добровольный) be regarded as opinio juris or State practice of a particular State?

Ex gratia (/ˌɛks ˈɡreɪʃiə/ also spelled ex-gratia) is Latin for "by favour". When something has been done ex gratia, it has been done voluntarily, out of kindness or grace. An ex gratia payment is a payment made without the giver recognising any liability or legal obligation.

Ex gratia payments are made under no legal obligation of the state making the payments.

Therefore actions ex gratia are to be regarded as State practice.

10. Can a provision of a treaty become customary international law? If so, what is required for a norm of a treaty to become customary?

int. committee of the red cross CUSTOMARY INTERNATIONAL HUMANITARIAN LAW VOLUME I RULES, Jean-Marie Henckaerts and Louise Doswald-Beck

Treaties are also relevant in determining the existence of customary international law because they help assess how States view certain rules of international law.

ICJ in the Continental Shelf case recognised that treaties may codify pre-existing customary international law but may also lay the foundation for the development of new customs based on the norms contained in those treaties. The Court has even gone so far as to state that “it might be that a very widespread and representative participation in [a] convention might suffice of itself, provided it included that of States whose interests were specially affected”.55

The International Law Association has summarised this case-law, stating that a (multilateral) treaty may thus interact in four different ways with custom:

1) it can provide evidence of existing custom;

2) it can provide the inspiration or model for the adoption of new custom through State practice;

3) it can assist in the so-called “crystallisation” of emerging custom;

4) it can even give rise to new custom of “its own impact” if the rule concerned is of a fundamentally norm-creating character and is widely adopted by States with a view to creating a new general legal obligation.

There can be no presumption that any of these interactions has taken place and in each case it is a matter of examining the evidence.

Fitzmaurice, Third Parties and the Law of Treaties

According to standards, adopted by the ICJ in the 1969 North Sea Continental Shelf case:

1) Provisions of a treaty should be of a fundamental norm-creating character (such as could be regarded as forming the basis of a general rule of law);

2) Provisions of a treaty should have passed into the general corpus of int. law;

3) Provisions of a treaty should be accepted as such by the opinion juris.

+ The conduct of parties to a treaty in relation to non-parties counts towards the formation of customary law (because it is not practice under the treaty).

ICJ stated in relation to norm-creative provision of a treaty that such a norm should have the capacity to be transformed into a general rule of law.

The problem of norm-creative treaty provisions is linked to the distinction between law-making treaties and contracts.

Another distinction is based on the abstract character of the norm: 1) number of subjects (non-defined) 2) number of situations (general).

There is no agreement as to what norms may be law creating in the doctrine.

ICJ the North Sea Continent Shelf case: the Court had a doubt on the possibility of reservations to provisions of treaty which embody norms of customary international law. It said that such reservations could not be made in relation to a norm of customary law. But this decision was subject of much critisizm in numerous Dissenting Opinions of the Judges: they said that reservations relate to contractual sphere and do not influence on the creation of customary norms.

Art. 37 of Vienna Convention on the Law of Treaties (treaty provision should be recognized as a rule of customary int. law). There are to approaches: 1) ICJ North Sea Continental Shelf case: it is sufficient for the rule to be recognized by a majority of states (“specially interested states”); 2) Rule has to be specifically recognized by a third state to have a binding effect on it.

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