Customary In this paper we will focus in the two elements of customary international law.<\/p>\n The judgments of Similarly, in the Traditionally, jurists and scholars have put more emphasis on state conduct than on the subjective element<\/a>. That is because a state conduct was traditionally easier to ascertain than the belief of a state. With the introduction of the United Nation (UN) and other bodies where multilateral diplomacy is conducted in the open, however, the situation has in fact reversed.[8]<\/a>\u00a0State practice can be reflected in the acts of the judiciary, legislation or executive branch of government; declarations of government policy; the advice of governments\u00a0 legal advisers, press statements military manuals, votes and explanation of votes in international organizations, the comments of governments on draft texts produced by the ILC, national legislation, domestic court decisions; and pleadings\u00a0 before international tribunals.[9]<\/a><\/sup>While one might be tempted to conclude that acts count more than words because \u201ctalk is cheap\u201d, virtually all of the authorities treat the two as equal.[10]<\/a>In fact, ICJ judge Richard Baxter once noted the firm statement by the state of what it considers to be the rule is far better evidence of its position than what can be pieced together from the actions of that country at different times and in a variety of contexts.[11]<\/a>The case law of international tribunals is replete with examples of verbal acts being treated as examples of practice.[12]<\/a> In particular, diplomatic protest (or its absence) is universally viewed as important in determining whether a customary rule has been created or superseded. Thus, in assessing the relevant behavior of states, \u201cwe look to words as well as deeds , and to silences as well as inactions\u201d<\/em> .[13]<\/a><\/sup> Verbal acts can count as either the objective or subjective element and\u00a0 the International Law Association (ILA) has observed that it is possible for the same conduct to manifest both.[14]<\/a>As discussed below, state vote on UN General Assembly Resolutions can thus be both a form of state practice and a manifestation of the state subjective attitude about the existence of the rule in question.[15]<\/a> State practice also includes inaction or silence, especially (but not necessarily) where a protest would be expected. Thus, in the case of the S.S.Lotus, the PCIJ relied on the absence of protest against legislation based on the objective territoriality \u201cdoctrine of jurisdiction in finding that such an exercise of jurisdiction was permissible under customary international law\u201d.[16]<\/strong><\/a> <\/em>Similarly, in the Nottebohm case (second phase), the International court of justice (ICJ) based its decision on fact that some states \u201crefrain from exercising protection in favor of a naturalized person when the latter has in fact, by his prolonged absence , severed his links with what is no longer for him anything but his nominal country\u2026<\/em> 15<\/sup> Professors Myers Mc Dongle described the customary international law formation process as one of continuous claim and response.[17]<\/a> To illustrate this process consider the question of whether international law permits a state to use force to arrest a terrorist leader in another state without the latter consent. A question that recently arose when the United States Kidnapped an Al-Qaeda leader from Libya in October 2013.[18]<\/a><\/sup> The claim may be express, such as demanding that its special forces be allowed to enter the territorial state to arrest the terrorist, or implicit, such as sending it special forces into the territorial state without it permission to apprehend the terrorist. The response to the claim may in turn be favorable, such as consenting to the operation or refraining from protesting the extraterritorial apprehension. In such case, the claim and response will begin the process of generating a new rule of customary international law. Some states may initiate the practice and others may passively acquiesce in it.<\/p>\n The purpose of the subjective element<\/a>, known as opinion juris, is to differentiate state actions that give rise to legal norms from actions that do not.[19]<\/a><\/p>\n The subjective This element is But that is only Moreover the Some commentators However some While, some In case of Nicaragua, the International court of Justice appears to have treated general Assembly Resolution 2625, the declaration of principles of international law concerning friendly relations and co-operation among states, as a resolution that generated customary international law. The court stated that :the effect of consent to text of such resolutions can not be understood as merely that of a \u201creiteration or elucidation\u201d of the treaty commitment undertaken in the charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolutions by themselves.[34]<\/a><\/p>\n Customary international law as a second formal source of international law<\/a> require for its creation both a regularity of practice or state practice and an expression of act(s) of will, even if masked as opinion juries. Customary international law without the custom could still be general international law while without the act of will, it is not positive law and, in the last instance, not law (or even normative) at all. But our information on how customary international law comes about is not authoritative, merely guesswork, understanding a new of customary international law in case of Nicaragua. Several problems arise from the decision. Most generally, the Nicaragua understanding of customary international law can be criticized for its obscurity. The court\u2019s analysis of custom illustrates the accuracy of Sir Robert Jennings observation that \u201cwe can not reasonably expect to get very far if we try to rationalize the law of today, solely in the language of Article 38 of the statute of the international court of justice\u201d.<\/p>\n [1]<\/a> 1945,ICJ.Stat.1055,T.S.N0 993. All member states of the united [2]<\/a> Maurice H.MENDELSON, the formation of customary International Law [3]<\/a> S.S.Lotus(Fr. V. Turk),Merits, 1927 P.C.I.J.(Ser. A) N0.10,at [4]<\/a> North Sea Continental Shelf, 1969 I.C.J. 77.<\/p>\n [5]<\/a> Mendel son, Supra not 27, at 218.<\/p>\n [6]<\/a> Cassese, Antonio .International [7]<\/a> Kunz, Josef L.\u201cThe nature of Customary International Law\u201d,October [8]<\/a> Id.at197.<\/p>\n [9]<\/a> I A N Brown Lie , Principles of Public International Law 5(4th<\/sup> [10]<\/a> INT\u2019L Law ASS\u2019N, Supra note 16,at 13-14. <\/p>\n [11]<\/a> Richard Baxter , Multilateral Law Treaties as Evidence of customary [12]<\/a> See S.S.Lotus,1927 P. C. I. J. at 23;26-30 Nottebohm case (Lich.V.Guat),1955 [13]<\/a> Kop low , Supra note 17, at 160.<\/p>\n [14]<\/a> INT\u2019L Law ASS\u2019N, Supra not 16, at 7.<\/p>\n [15]<\/a> Mendel son , Supra not 27, at 201.<\/p>\n [16]<\/a> S.S.Lotus,1927.P.C.I.J. at 23<\/p>\n [17]<\/a> Nottebohm case ,1955 I. C .J. at 22<\/p>\n [18]<\/a> See Generally M. S. Mc Douglas &N.A Schalei , The hydrogen bomb [19]<\/a>Ernesto .Londoner, Capture of bombing suspect in Libya represents \u201crendition\u201d by U.S Military , Washington Post (oct.6,2013), available at http:\/\/ [20]<\/a> INT\u2019L Law ASS\u2019N, supra not 16 at 10.<\/p>\n [21]<\/a> H. Thirlway , International Customary Law and codification [22]<\/a> D\u2019Amato, supra note 45, at 97-98.<\/p>\n [23]<\/a> Nicaragua case,1986I.C.J at 98,186.<\/p>\n [24]<\/a> S.S.Lotus ,1927 P. C .I. J. at 28.<\/p>\n [25]<\/a> Id.<\/p>\n [26]<\/a> Mendel son ,supra note 27, at 246 n.244(citing diametrically opposed [27]<\/a> INT L. Law ASS\u2019N, supra note 16, at 39.<\/p>\n [28]<\/a> Mendel son, supra note 27 , at 280.<\/p>\n [29]<\/a> Mendel son, supra note 27 at 248.<\/p>\n [30]<\/a> Id. at 283.<\/p>\n [31]<\/a> Id.<\/p>\n [32]<\/a> Id. At 396 ( Mendel son
\nInternational law can be general or particular, however Article 38 of the
\nstatute of the international court justice contains the concept of customary international
\nlaw: \u201cThe court, whose function is to decide in accordance with international
\nlaw such disputes as are submitted to it, shall apply.. (b) International
\ncustom, as evidence of a general practice accepted as law.[1]<\/a>The
\ntext of Article 38 reflects the view that customary international law is
\ncomposed of two elements: <\/p>\n\n
\nstate practice , termed the {objective element} and <\/li>\n
\nsubjective element (opinion juris), some sort of attitude towards practice (be
\nit acknowledgment as law or consent).[2]<\/a><\/li>\n<\/ol>\nIntroduction<\/h3>\n
\nthe permanent court of international justice (PCIJ) and the ICJ have been
\nconsistent in stating that a customary rule requires the presence of both of
\nthese elements. Thus, in the 1929 S.S. Lotus, the PCIJ stated that
\ninternational law is based on the will of states expressed in conventions or in
\n\u201cusages generally accepted as expressing principles of law\u201d.[3]<\/strong><\/a><\/sup><\/strong><\/p>\n
\n1969 North Sea continental Shelf, the ICJ stated that the actions by states
\n\u201cnot only must amount to a settled pratice, but they must also be such, or be
\ncarried out in such a way, as to be evidence of a belief that this practice is
\nrendered obligatory by the existence of the rule of law requiring it\u201d.[4]<\/a>Where those two elements are manifest, a rule of customary international
\nlaw, will be deemed to bind all states, with the exception of persistent
\nobjectors, without it being necessary to show that the particular state allegedly
\nbound by the rules has participated in its formation or has other wise accepted
\nit.[5]<\/a> <\/sub>Article 38(1)(b), as quoted above,
\nprovides the most authoritative definition of international custom (Cassese
\n2005,156)[6]<\/a>even
\nif not an undisputed one (Kunz,1953,664)[7]<\/a>,
\ndescribing it as
\nevidence of a general practice accepted
\nas law. This formation reflects the widely accepted two\u2013element theory
\nthat custom is composed of two elements: State practice and opinion juris, both
\nof which will be further explored in the next section of this study.<\/p>\n1. The objective element (general state practice)<\/h3>\n
2. The subjective element (opinion juris)<\/h3>\n
\nelement has been described as \u201cthe
\nphilosopher\u2019s stone which transmutes the inert mass of accumulated usage into
\nthe gold of binding legal rules<\/em>\u201d.[20]<\/a><\/p>\n
\nnecessary because state practice is often capable of being interpreted in
\nvarious ways. Examining subjective intent is particularly important where
\nactions (or omissions) are in and of themselves ambiguous. For example,
\nProfessor D\u2019 Amato has said that every breach of a customary law contains the
\nseed for a new legality.[21]<\/a><\/p>\n
\nthe case if the breaching state justifies its action on the basis of a new rule
\nof customary law. As the international court
\nof justice (ICJ) observed in the Nicaragua case, if instead the state
\nresorts to factual or legal exceptions to justify the breach, this has the
\neffect of confirming the general rule rather than undermining it or creating an
\nexception to it.[22]<\/a> <\/p>\n
\nsubjective element can reveal actions that constitute mere comity and
\ndistinguish those taken out of mere convenience from those that count as
\nprecedents. Take for example, the S.S .lotus. The France argued that the dearth
\nof prosecutions for collisions on the high seas other than by the flap state on
\nboard which the wrongful act took place was evidence that international law did
\nnot recognize \u201ceffects jurisdiction\u201d<\/em>
\nin such cases.[23]<\/a> The PCIJ disagreed on the
\nground that there was no evidence of a \u201cconscious
\n(ness) of having a duty to abstain\u2019\u2019<\/em> from prosecuting officers of ships of
\nforeign registry for injuries to ships of domestic registry.[24]<\/a>
\nThe reasons for lack of interest or lack of domestic statutory authority as on
\nbelief that such prosecutions violated customary international law. There are
\ntwo vigorously contested schools of thought concerning the nature and role
\nplayed by the subjective element. The \u201cvoluntarist\u201d thesis maintains that,
\nsince states are sovereign, they can not be bound by legal obligations (whether
\nthrough treaty or customary law) without their consent. Consistent with this,
\nvoluntaristis view the subjective element of customary international law as a
\nmanifestation of consent. The competing \u201cbelief\u201d thesis maintains that custom\u2019s
\nbinding force is based in the states belief in the legal necessity or permissibility
\nof the practice in question. The controversy between supporters of the two
\napproaches goes back more than 200 years, and has continued to this day.[25]<\/a>
\nThe voluntarist thesis has been criticized for adopting the legal fiction that
\nsilence is considered a form of acquiescence or tacit consent a fiction that is
\nparticularly hard to buy in cases where the particular state was not directly
\naffected by the conduct in question when the customary rule was being formed.[26]<\/a>
\nThe belief thesis, in turn, has been criticized for failing to explain how
\nopinion juris can exist in the initial phase of state practice with respect to
\na new rule. If it is the first state to assert a new rule, how can the state
\nseriously entertain the opinion that it is acting in accordance with the law? <\/p>\n
\nhave tried to answer this criticism by suggesting that the state could be
\nacting in error, but \u201cthe truth is that
\nthe state which introduces a new practice has in these cases no belief that its
\nconduct is permitted or required by existing law, and neither have the first
\nstates to respond positively or negatively to its conduct<\/em>\u201d.[27]<\/a><\/p>\n
\nscholars believe that the dichotomy between the two approaches is a false one
\nthat consent plays a role in some circumstances, and belief does in others.[28]<\/a>
\nProfessor Mendel son, for example,
\nmaintains that the voluntarist thesis is the better approach, which emphasizes
\nbelief , better explains why mature customary rules are observed.[29]<\/a>
\nConsistent with words in Article 38 of the state of the International court
\njustice (ICJ) \u201ca general practice accepted as law\u201d<\/em>, Mendel son suggests that in
\nthe early formation stage \u201cacceptance \u2019\u2019 means consent to an emerging rule ,
\nand in the later stage \u201cacceptance\u201d means acknowledgment that the rule has
\ngained the force of law.[30]<\/a>
\nMoreover, he stresses that such an acknowledgment need not come from states
\nalone, but could emanate from a tribunal[31]<\/a>or
\nfrom a resolution of the U.N general Assembly.[32]<\/a><\/p>\n
\nscholars have argued that \u201ccustomary law without custom (practice) is a
\ncontradiction in terms\u201d the ILA has pointed out that sine statements are a form
\nof state practice, how a state votes and how it explains its vote in the
\ngeneral Assembly is a form of practice that can generate customary law[33]<\/a>
\nthen if emergent practice exists outside the resolution, the adoption of the
\nresolution can serves as a collective expression of opinion juris that can
\ncrystallize the rule.<\/p>\nConclusion <\/h3>\n
\n
\nNations are automatically parties to the statute of the International court of
\njustice.<\/p>\n
\n195(1998).<\/p>\n
\n18(Sept.7).<\/p>\n
\nLaw .New York :Oxford University Press,2005.<\/p>\n
\n1953:662-669.<\/p>\n
\ned 1990)<\/p>\n
\nInternational Law,41 BRIT .Year Book of INT\u2019L
\nL.275,300(1965-1966).<\/p>\n
\nI.J.4,21-23( Apr.6); Fisheries Jurisdiction (U.K.V.Ice), Merits , 1974 IC.J 3,
\nat 24-26;55-58(July25); Military and Paramilitary Activities in and Against
\nNicaragua (Nicar.V.U.S).<\/p>\n
\nTests in perspective: Law full Measures for security , 64 yaleL.J.648(1955)<\/p>\n
\narticles .Washington .post.com\/2013.10.06\/world \u2013 Kerry-terror suspects-Libyan-government
\n(last visited feb.22,2014).<\/p>\n
\n47(1972). <\/p>\n
\narticles).<\/p>\n
\npoints out that in \u201ccertain innovative decision such as the 1951 Fisheries jurisdiction
\ncase, the reservations to the genocide convention cases , and the Nottebohm
\ncase, it would not be far from the truth to say that the ICJ made new Law\u201d).<\/p>\n