Customary International Law Explained - Opinio Juris, State Practice | Lex Animata | Hesham Elrafei

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Published at : 19 Nov 2021

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Customary International Law Explained and visualized - Opinio Juris, State Practice

Lex Animata

Hesham Elrafei

International Custom is the second source of international law, unlike treaties, it refers to a set of unwritten rules that have developed over time , as a result of states’ repeated acts.
Customary international law Explained, Visualized and simplified in a nutshell

Customary international law requires the presence of two elements: state practice and opinio juris

State practice is the material and factual element, and it represents how states behave and act, such as official public statements, physical actions, diplomatic communications, treaties, national legislation and States activities in International Organisations.

However, in order to create a customary international rule , a state practise must be ‘both extensive and uniform; as it should amount to a consistent and repeated pattern of behavior, and not just a rare or exceptional activity, and it usually requires a large number of States to engage in the practice over a long period of time.

opinio juris is the second condition required to create a customary rule, as it presents the psychological element that reflects the States belief and consent to be bound by that rule , and that they feel under a legal duty to obey a particular practice, which means that such custom is accepted by the international community as a law , and is not just a habit or Courtesy.

An example of opinio juris is how states vote in the United Nations general assembly since it shows the states’ true intentions , and whether or not they believe they are legally obligated to behave in a certain way.

a state Conduct that violates a customary rule, will amount to a breach of international law, and it could give rise to State responsibility . Much depends on how other countries respond to the violation, as well as the military and economic power of the wrongdoing country.

While some states might decide not to react to that breach, this acquiescence may be interpreted as an acceptance of the breach and an evidence of silent consent , other states might decide to protest against it , in this case the chain can be broken if a objecting State persistently disagree with the new customary rule, therefore the objecting state will not be bound by that particular custom.

While States must consent in order to be bound by a particular treaty, this is not always the case with custom, Especially that Some customary international rules rise to the level of jus cogens , through acceptance by the international community as non-derogable rights, like the prohibition of genocide , slavery, torture, war of aggression, or crimes against humanity.

On the other side, Some international customary rules have been codified through treaties and domestic laws, like The laws of war , and the diplomatic immunity , they were converted into written treaties, like the Hague and the Geneva Conventions

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