The purpose of this essay is to assess the impact of the behaviour of a State, which contrary to a rule of customary international law, on the existence of rule of customary international law, in terms of whether it undermines the existence of that rule or strengthens it. To be able to do this, it is expedient that the following issues are addressed: What is Customary International Law? What are rules of customary international law? Contrary state behavior.
Customary International Law is one of the major sources of International law and is described in Article 38(1)(b) of the Statute of the International Court of Justice, 1946, as "general practice accepted as law." According to the Legal Information Institute of the Cornell Law School, "Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation." It was also defined by Judge Read in Fisheries (UK v Norway) (1951), as the generalization of the practice of States.
Table of Contents
- 1.0 INTRODUCTION
- 1.1 Purpose of Essay
- 2.0 WHAT IS CUSTOMARY INTERNATIONAL LAW
- 2.1 Elements of Customary International Law
- 2.2 The Traditional and Modern Approach
- 3.0 RULES OF CUSTOMARY INTERNATIONAL LAW
- 4.0 CONTRARY STATE ACTIONS
- 4.1 Evidence of Acquiescence
- 4.2 Contrary conduct proves the existence of Customary International Law
- 4.3 Contrary conduct gives rise to new rules of Customary International Law
- 4.4 Contrary conduct pleaded as an exception proves the existence of Customary International Law
- 4.5 Contrary State Conduct v. Jus Cogens (Peremptory Norms)
- 5.0 CONCLUSION
Objectives and Key Themes
This essay aims to analyze the effect of state behavior contradicting customary international law rules on the existence of those rules. It investigates whether such contrary actions undermine or reinforce the rules. The essay addresses what constitutes customary international law, its rules, and the implications of conflicting state actions.
- The definition and elements of customary international law
- The impact of contrary state actions on established rules
- The role of state practice and opinio juris
- The potential for contrary conduct to create new rules or exceptions
- The relationship between contrary state conduct and jus cogens norms.
Chapter Summaries
1.0 INTRODUCTION: This introductory section sets the stage for the essay by outlining its primary objective: to examine how state behavior that contradicts customary international law rules affects the existence of those rules. It lays the groundwork by stating the core question that the essay will address and briefly touching on the key issues it will explore.
2.0 WHAT IS CUSTOMARY INTERNATIONAL LAW: This chapter defines customary international law, differentiating it from obligations stemming from treaties and conventions. It highlights the definition provided by the Legal Information Institute of Cornell Law School, emphasizing the importance of established international practices followed out of a sense of legal obligation. The chapter also introduces Judge Read's description of customary international law as a generalization of state practice from the Fisheries (UK v Norway) case (1951).
2.1 Elements of Customary International Law: This section delves into the two key elements of customary international law: the material element (consistent state practice over time) and the psychological element (opinio juris, the belief that a state is legally bound to follow a practice). It uses Lowe (2007) and Roberts (2001) to support this explanation. The section discusses the importance of both elements in establishing a customary international law rule.
2.2 The Traditional and Modern Approach: This section contrasts the traditional and modern approaches to understanding the elements of customary international law. It discusses differing viewpoints on the relative importance of state practice versus opinio juris, noting the potential for ambiguity and weakness in credibility when one element overshadows the other. The section explores various scholarly perspectives on how these elements interact, including the "sliding scale" approach suggested by Kirgis (1987).
3.0 RULES OF CUSTOMARY INTERNATIONAL LAW: This chapter explores examples of established rules under customary international law. It cites Crawford (2012) and various cases (including the Nicaragua v. United States of America case, the Wall Advisory Opinion, and others) to illustrate these rules, which encompass topics such as the prohibition of the use of force, territorial acquisition, self-defense, diplomatic immunities, and peaceful dispute resolution. The section also highlights the imprecision of customary international law regarding the scope and consequences of systemic illegality and the challenges in defining the conditions for applying restitution as a form of reparation.
4.0 CONTRARY STATE ACTIONS: This chapter addresses situations where states deviate from established customary international law rules. It acknowledges the complexities of situations where a conduct, initially deemed acceptable, is later rejected. The chapter sets the stage for the essay's core analysis by introducing the central problem: how to reconcile instances of state behavior that contradict established norms within the framework of customary international law.
Keywords
Customary international law, state practice, opinio juris, jus cogens, contrary state conduct, state behavior, international law, rules of customary international law, Nicaragua case, Rainbow Warrior case.
Frequently Asked Questions: Essay on the Effect of Contrary State Actions on Customary International Law
What is the essay's main objective?
The essay analyzes how state behavior that contradicts customary international law rules affects the existence of those rules. It investigates whether such contrary actions undermine or reinforce the rules, exploring the implications of conflicting state actions on established norms.
What is customary international law, and what are its elements?
Customary international law is defined as established international practices followed out of a sense of legal obligation. Its two key elements are: (1) the material element (consistent state practice over time) and (2) the psychological element (opinio juris, the belief that a state is legally bound to follow a practice).
How does the essay approach the topic of contrary state actions?
The essay examines various scenarios where states act contrary to established customary international law rules. It explores how such actions impact the existence, interpretation, and potential evolution of those rules. It considers whether contrary conduct weakens, strengthens, or even creates new rules of customary international law, and the implications for jus cogens norms.
What are some examples of rules under customary international law?
Examples include the prohibition of the use of force, territorial acquisition, self-defense, diplomatic immunities, and peaceful dispute resolution. The essay acknowledges the imprecision of customary international law concerning systemic illegality and the challenges in defining the conditions for applying restitution as reparation.
How does the essay address the traditional and modern approaches to customary international law?
The essay compares the traditional and modern approaches to understanding the elements of customary international law, discussing differing viewpoints on the relative importance of state practice versus opinio juris and the potential for ambiguity when one element overshadows the other. It explores scholarly perspectives, including the "sliding scale" approach.
What is the role of state practice and opinio juris in establishing customary international law?
Both consistent state practice over time and opinio juris (the belief that the practice is legally obligatory) are crucial for establishing a customary international law rule. The essay analyzes the interaction and relative importance of these two elements in different contexts.
How does the essay address the relationship between contrary state conduct and jus cogens norms (peremptory norms)?
The essay explores the interaction between contrary state conduct and jus cogens norms, which represent fundamental principles of international law from which no derogation is permitted. It examines the limits of contrary state actions in the face of peremptory norms.
What are the key themes explored in the essay?
Key themes include the definition and elements of customary international law; the impact of contrary state actions on established rules; the role of state practice and opinio juris; the potential for contrary conduct to create new rules or exceptions; and the relationship between contrary state conduct and jus cogens norms.
What specific cases are mentioned in the essay?
The essay mentions the Nicaragua v. United States of America case, the Wall Advisory Opinion, and the Fisheries (UK v Norway) case (1951), among others, to illustrate points related to customary international law and state practice.
What are the key words associated with this essay?
Key words include Customary international law, state practice, opinio juris, jus cogens, contrary state conduct, state behavior, international law, rules of customary international law, Nicaragua case, and Rainbow Warrior case.
- Quote paper
- Ogochukwu C. Nweke (Author), 2020, Does state behavior contrary to a rule of customary international law undermine the existence of that rule?, Munich, GRIN Verlag, https://www.grin.com/document/981488
