The Process of Customary International Law Formation - Essay Example

How satisfactorily do the elements of practice and opinio juris explain the process of customary international law formation? [Name of Institution] [Date] [Word Count = 1524] General Summary Custom according to the definition of the international Justice court’s statute is the showing of such practices which are recognised as law.1 Generally it is believed that custom comprises of 2 components i.e. state practice and opinio juris. The term state practice is defined as the state’s general as well as consistent activities, whilst opinio juris refers to those practices which are carried out of an impression of legal responsibility. This differentiation creates difficulties in determining what states consider as disputed to what they state.2 It also creates problems in understanding which declaration and treaties represent opinio juris or state practice. Therefore this essay shows that though there is a distinction between state practice and opinio juris but the element of both these (i.e. state practice and opinio juris) assists in the formation of customary international law. The actions are the state practice whereas the statements are opinio juris. Hence, custom can be formed by the actions only when these actions are came with a juncture of the action’s legality. Opinio juris relates statements of belief instead of real beliefs.3 In addition to this, opinio juris is presented by the resolutions and pacts as both of these are the statements regarding the activity’s lawfulness, instead of cases of that action. An Outline Plan The information used for this essay is taken from different websites by using the search engines. In this essay we will first assess customary international law and then we will discuss how does state practice and opinio juris are used for the formation of customary international law. We did assessment of customary international using the book of Malocom Shaw the title of book is “International Law.” The content that we learn from this book is given below; Assessment of Customary International Law In general, it is accepted that two components that are necessary for the presence of customary international law are state practice and an impression that this practice is mandatory, allowed or prohibited, based on the type of the regulation, as a question of law (opinio juris). According to international justice court “It is naturally self-evident that the object of customary international law is to be searched mainly in the state’s real practice and opinio juris.”4 After the assessment of customary international we continue our essay and start assessing the one of the element of customary international law i.e. state practice. For this purpose the source the use is the book name “Legal Personality in International Law,” written by Roland Portmann. The content related to the state practice taken from this book is discussed below; Assessment of State practice To assess the state practice, it has to be considered whether it is enough intense for the formation of customary international law. 5In order to demonstrate a customary international law, the elements of state practice should have to be practically consistent, broad as well as representative. In spite of the fact that in some cases state practice usually elapses earlier enough to meet these standards, no exact time period is compulsory.6 Some of the requirements of the state practice for the formation of customary international law are as follows; Firstly, the state practice should be consistently practical in order to form a customary international law. All states should follow only one conduct. The 2nd condition through which state practice can present customary international law is that the concerns of the state practice should be both broad and representative. The 3rd condition is related to the time. The time is very much important for formation of customary international law. The implementation of broad, representative and consistently practicable practices should be at the right when it is necessary for the formation of customary international law.7 The last part of this essay is the discussion of second component of customary international law, the content related to this part of essay is taken from two different websites as well as from one book. The articles on websites that are used for this part of essay are; “Public International Law Customary International Law” written by John Palmer and “Customary International Law: A New Theory with Practical Applications” written by Brian D. Lepard. Whereas the title of the book used for this section of essay is “Cases and Materials on International Law” and its witter is D. J. Harris. The content taken from all of the above three sources is discussed under the heading of opinio juris. Opinio Juris Another element of the customary international law is the opinio juris. It is related to the practices that are required for carrying out it as right. The specific situation in which this legal certainty and the practice requires to be carried out might differ considerably based on whether the implied rule contains a responsibility, a prohibition or just a right to act in a positive way. Some of the practices that are included in the opinio juris and are used for the formation customary international law are as follows;8 Practice that shows the prohibition’s existence is the rule which is prohibited to state that quarter will not be given. This consists of not just statements showing such conducts which are prohibited of cases in which the prohibited conduct did happen, maybe mixed with excuses or explanations from the criticised state, however physical practice refraining from the conduct which is prohibited. The example of the practice showing the existence of a responsibility is the rule in which sick and the injured should be handled, might be determined mainly in conduct in accordance with such a requirement.9 Practice demonstrating the presence of a rule that permits a certain act, for instance, the states rule regarding the right to enthrone collective legal power in their courts on violation of rules of war, can be determined in act which distinguish the power to conduct in such a manner without really involving such act. Many studies show that it is not easy and mostly theoretic to purely distinguish elements of legal convictions and practice. Generally, both of these can be reflected by single and the similar act.10 A Preliminary Bibliography For different part of essay different sources are utilized. The first part of essay is the general summary of the topic; in this section we used two books for getting a thorough knowledge related to the topic. The books used for the first section are; “The Limits of International Law” written by Jack L. Goldsmith & Eric A. Posner, and the second book is “International Law” written by Malocolm Shaw. The second part of essay is taken from book of Malocom Shaw and the title of book is “International Law.” The source used for third part of essay is “Legal Personality in International Law,” written by Roland Portmann. In the last part of essay we use two articles from websites. The title of the articles and writers are; “Public International Law Customary International Law” written by John Palmer; and “Customary International Law: A New Theory with Practical Applications” written by Brian D. Lepard. Whereas the book used for this section of essay is “Cases and Materials on International Law” and its witter is D. J. Harris. In order to complete the essay the intended reading would be done from the web article named “Customary International Law” written by Tullio Treves. Brief Account (Problems Encountered) The material in this essay used is obtained from different websites, journals and books by using the search engine. I start my work by searching the topic and face some problems in searching the related material because of the misunderstanding of the topic and the selection of key words for searching. Later on, while searching and reading different articles and printed material related the topic was obtained because of the understanding of the study material. First I was searching state practice, opinio juris and community state law separately, later I use all these three words altogether and got the required material. Conclusion For the formation of the customary international law the state practice and opinio juris are the important element. The element of state practice includes the state’s general and uniform international practice whereas as opinio juris is an acceptance of such practice as law by the worldwide community. From the studies it has been proved that the elements of state practice and opinio juris are essential component of customary international law. References Goldsmith, J.L. & Posner, E.A., The Limits of International Law (Oxford University Press, 2005) 20-34 Harris, D. J., Cases and Materials on International Law (7th, Sweet & Maxwell, 2010) 42-52 Lepard, B.D., Customary International Law: A New Theory with Practical Applications (Dr Aurel Sari 2010) accessed 4 November 2012 Palmer, J., Public International Law Customary International Law (Princeton 2011) accessed 4 November 2012 Portmann, R., Legal Personality in International Law (Cambridge University Press, 2010) 83-93 Shaw, M., International Law (6th, Cambridge university press, 2008) 34-45 Read More