Essay Customary International Law

Essay Customary International Law

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According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.

The first element of international law is state practice. There are certain behaviors that are regarded as customs once they are practiced by a substantial amount of states over a prolonged period of time. However, it is important to note that this stand...


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... Oxford, England: Oxford University Press, 2007. Print.
Kritsiotis, Dino. “Of The Possibilities Of and For Persistent Objection.” Duke Journal of Comparative and International Law 21.121 (2010): 121-141. Web. 23 February 2012.
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26).
Nemeth, Stephen C. Good Fences Make for Good Enemies: The Enclocsure of Common Property Resources and Conflict. University of Iowa, 2007. Web. 22 February 2012.
S.S. Lotus (Fr. V. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
Shaw, Malcolm. International Law. Cambridge, England: Cambridge University Press, 2008. Print.
“The United States’ Claims of Customary Legal Rights Under the Law of the Sea Convention.” Washington and Lee Law Review 41.1 (1984): 253-273. Web. 23 February 2012.

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