Chapter 6

REFLECTIONS ON CUSTOMARY
INTERNATIONAL LAW
Stephen Vasciannie
Professor of Law
Principal of the University of Technology, Jamaica

I. Introduction
On 20 December 2018, the United Nations General Assembly adopted Resolution 73/203
on the Identification of Customary International Law.1 Among other things, this Resolution
took note of the Conclusions2 of the United Nations International Law Commission3 on
customary international law,4 and undertook to bring them to the attention of States“and all
who may be called upon to identify rules of customary international law.”5 The Resolution
also undertook to encourage the widest possible dissemination of the International Law
Commission’s Conclusions.6 It is therefore fair to anticipate that with the passage of time,
the approach taken by the International Law Commission will make its way through
various foreign ministries to international and national courts, to legislatures, universities
and to the non-governmental sector.
This dissemination will be important, for, although customary international law plays
a significant role in international relations, the identification, nature and role of this
system of law give rise to questions that are occasionally left unanswered. What is the
place of customary international law among the sources of international law? What is its
relationship with other sources of law, and in particular treaty law? What are the elements

1 United Nations General Assembly, 73rd Session, Resolution adopted by the General Assembly on
20 December 2018 [on the Report of the Sixth Committee, (A/73/556)], UN Doc. A/RES//73/203, 11
January 2019.
2 The Conclusions of the International Law Commission have been set out, for instance in the Draft
Conclusions on Identification of Customary International Law, with Commentaries (2018), adopted
by the International Law Commission at its seventieth session in 2018. In this essay, they will sometimes
be referred to as ”the ILC Conclusions” or “the Conclusions.”
3 Sometimes hereinafter referred to as “the ILC “or “the Commission.”
4 Loc. cit., note 1, para. 4.
5 Ibid.

6 Ibid.

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of customary international law, and how do we know them when we see them? These
questions have been the subject of extensive discussion in the secondary literature of
international law, but in light of the International Law Commission’s conclusions on the
identification of customary international law, they will be given further consideration in
the present essay. The essay begins with a brief review of the provenance and significance
of customary law among the sources of international law.

II. Custom Among the Sources

(a) Article 38(1) of the ICJ Statute
Customary international law is traditionally regarded as a source of international law. It
derives this standing from Article 38(1) of the Statute of the International Court of Justice.
In relevant part, this well-known provision stipulates that:
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:…
a. international conventions…
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.
This formulation is interpreted to mean that the International Court of Justice should seek
to identify and apply, among other items,“international custom”in making decisions pursuant
to international law – hence, custom is to be treated as a source of law. The form of words
in Article 38(1) has prompted certain observations in the literature. For example, it is noted
that Article 38(1) does not expressly use the term “sources” in the provision that is generally
regarded as specifying the sources of international law.The omission of any reference to the
word sources may be inconsequential; the Court is directed to identify and apply particular
items of law, and it may carry out this function on the assumption that the term sources is just
a shorthand way of describing the way the court identifies the rules it is applying in a case.
One authoritative view, however, is that the concept of sources may add value by allowing us
to distinguish between those items in Article 38(1) which give a legal rule force and validity
(formal sources), and those which provide the substance of the rule (material sources).7
On this view, adopted by Jennings and Watts, the formal source of a particular rule may be
custom, but the material source of the rule may be found in a bilateral treaty, or in a state’s
unilateral declaration made some years earlier.8 On this view, also, Article 38(1) seems to
provide an exhaustive list of formal sources of international law in items (a) to (c), treaties,
custom and general principles. It does not, however, provide an exhaustive list of material
sources, for the evidence behind a rule may come from diverse places.
Secondly, some writers have noted that the formulation of Article 38(1)(b) on custom
lacks felicity. On its face, Article 38(1)(b) indicates that the Court shall apply “international

7 Georg Schwarzenberger, International Law (3rd ed., 1957),Vol. 1, pp. 26-27.

8 Robert Jennings and Arthur Watts, Oppenheim’s International Law (9th ed., 1993),Vol. 1, p. 23.

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custom”; but, in reality, a court cannot apply a custom. Rather, a court can identify a
custom, derive a rule from that custom, and then apply that rule as a rule of customary
international law. Critics have also suggested that the formulation in paragraph (b) – to
the effect that international custom is evidence of a general practice accepted as law –
requires explanation. In the view of the critics, general practice accepted as law is evidence
of international custom, and not the other way around.9

(b) Custom and the Hierarchy of Sources

Article 38(1) of the Statute does not expressly set out a hierarchy of sources. When the
Statute was first drafted, it was proposed that the items listed in Articles 38(1)(a) to (d)
should be applied by the Court “en ordre successif”, but this was not incorporated into
the text of the Statute. The travaux preparatoires concerning the Statute suggest that the
proposal was not accepted largely because it would be superfluous to state that there was
a hierarchy, with treaties at the highest level, followed in turn by customary international
law, then principles of law, and eventually by judicial decisions and teaching.
As a matter of plain meaning, the material sources set out in paragraph (d) are subsidiary
means for determining the law, and are therefore lower in the hierarchy than the other listed
sources.Also, it may be accepted that the purpose of general principles of law in the Statute
is to fill lacunae in the law, where neither treaties nor customary law speak definitively.
And if so, then general principles are to be read as falling below treaties and custom in
the hierarchy of sources. In brief, this means that at the top of the hierarchy will be either
treaties or customary law, but the Statute itself does not provide a method of deciding
which item should prevail in the event of a conflict as between these two sources.10 On
this point, Mr Ricci-Busatti, one of the drafters of the Statute, implied that treaties would be
given first consideration because “it is a fundamental principle of law that a special rule
goes before general law.”11 At the same time, the President of the Committee preparing the
Statute, Baron Descamps, noted that:
(i)f two States concluded a treaty in which the solution of the dispute could be
found, the Court must not apply international custom and neglect the treaty.12
These views are not determinative on the issue, but there is a good case for arguing
that in most cases, the specific will prevail over the general, and that in several cases this
may place treaties on point at the highest level. This approach is reinforced by Clive Parry,
writing in characteristically straightforward terms. For Parry:

9 Clive Parry, The Sources and Evidences of International Law (1965), p. 56; Schwarzenberger, loc. cit.,
note 7, p. 39 (cited by Parry). See also Rosalyn Higgins, Problems and Process: International Law and
How We Use It (1994), pp. 18-19.
10 Generally, see Michael Akehurst,“The Hierarchy of Sources of International Law,” British Year Book of
International Law, Vol. 47 (1974-75), p. 273.
11 Permanent Court of International Justice, Advisory Committee of Jurists, Proces verbaux of the Proceedings of the
Committee (June 16-July 24, 1920), Chapter 2, Footnote 6, quoted in David Harris and Sandesh Sivakumaran, Cases
and Materials in International Law (8th ed., 2015), p. 17.

12 Ibid.

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if two or more States have unequivocally agreed to something by treaty, in relation

to the matter in hand nothing other than the treaty has much relevance. It is
generally immaterial that customary international law points in another direction.
It is possibly equally immaterial that customary international law points in the
same direction.13
In support of these propositions, Parry cites the decision of the Permanent Court of
International Justice (the PCIJ) in the Tunis and Morocco Nationality Decrees Case.14 In this
case, the PCIJ gave full effect to treaty commitments undertaken by France even though this
departed from the prevailing international law rule to the effect that issues of nationality
were in principle within the reserved domain of each state.15
Nevertheless, it may not always be true that the treaty will be more specific than the
competing customary rule. Also, there may be scope for the application of other principles
of interpretation, so that, for instance, a specific custom may develop subsequent to a treaty
and this could possibly lead a tribunal to give priority to the customary rule. And perhaps
most importantly, the hierarchy as between treaties and custom may turn on whether or not
the customary rule in question has the status of a norm of jus cogens. Jus cogens rules are
peremptory rules of international law, derived ultimately from customary law; they trump
treaty and other rules in inter-State relations.16 Thus, if two States enter into a specific treaty
to use force against a third State without lawful justification, this treaty will be null and void
on the basis that it conflicts with the jus cogens norm against the unlawful use of force
in international relations. Generally, therefore, we may conclude that treaties and custom
stand on the same level in the hierarchy of sources. In any particular case, the particular
circumstances will help to determine which item – treaty or custom – should prevail in law.

(c) Importance of Custom versus Treaties

There is some uncertainty concerning whether treaties preceded customary international
law in the history of international relations. In Oppenheim’s International Law, customary
law is given pride of historical place,17 while Thirlway, another source of high authority,
regards this as debatable.18 In practical terms, this may not matter; what is clear, however,
is that since the establishment of the United Nations, there has been a marked tendency
towards the completion of multilateral treaties on the part of various States. Some of these
treaties, such as the Geneva Conventions on the Law of the Sea and the Rome Statute on the
Establishment of the International Criminal Court, have built on drafting and preliminary
study by the United Nations International Law Commission, while others, including the
Montego Bay Convention on the Law of the Sea and the International Covenant on Civil and

13 Clive Parry, loc. cit., note 9, p. 33.

14 Publications of the Permanent Court of International Justice, Series B, No. 4, p. 24.
15 Parry, loc. cit., note 9, p. 33.
16 The ILC Conclusions do not include treatment of jus cogens rules: Conclusions on Identification of
Customary International Law, with Commentaries (2018), Commentary on Conclusion 1, Paragraph
(6).
17 Jennings and Watts, loc. cit., note 8, p. 23 (“Custom is the oldest and the original source of international
law as well as of law in general.”)
18 Hugh Thirlway, The Sources of International Law (2014), p. 53.

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Political Rights, have their origins largely within the political organs of the United Nations
system. This tendency towards multilateral treaties has not has not necessarily served to
diminish the significance of customary international law. This is so because even the most
popular multilateral treaty may lack universal participation by States; and as a result, areas
covered by multilateral treaties will usually be subject to customary international law – law
applicable, that is, to non-parties to the multilateral treaties. Moreover, on a wide range of
issues, customary law will continue to govern state relations because no treaty has been
concluded on those issues.19
The post-World War II era has also witnessed a pronounced increase in regional and
bilateral treaties among States. Here again, though, the widening of treaty relations has not
necessarily undermined the importance of customary international law. In some instances,
regional treaties, such as the Charter of the Organization of American States or the Revised
Treaty of Chaguaramas, will set the stage for enhanced cooperation among particular sub-
sets of States but will still leave open the possibility of inter-state relations on matters not
falling within the terms of the regional treaty. And, with respect to bilateral treaties, there
will, once again, be a range of issues not covered in a particular treaty between two States:
these issues will, in the absence of binding treaty commitments, fall to be addressed by
customary international law, or in the absence of customary law, by general principles.
During the Cold War era, some Soviet international lawyers sought to draw comparisons
pertaining to the importance of treaties versus that of customary international law. In this
analysis, treaties almost invariably emerged as the more important source of international
law.Tunkin, writing under the heading “The dominant role of the treaty in the development
of International Law”,20 concluded that:
The Soviet doctrine of international law, while by no means denying the important
role of custom, regards the international treaty as the basic source of international
law.21
Tunkin contrasted this position with that of“bourgeois international legal doctrine”which
promoted “the old concept of the predominant role of custom.” The Soviet preference for
treaties was built on the assumption that treaties would not be binding on socialist States
without their consent; treaties were therefore a good vehicle for the advancement of
mutually advantageous positions in international relations.22 Within the Soviet viewpoint,
customary international law in its modern form also required state consent at least in
implied form, and to that extent it was also acceptable. The Soviet fear was that customary
rules based on Western values could be imposed on socialist States if these rules were
accepted without consent by all states.
Today, Russia does not apply customary international law in keeping with principles of
socialist internationalism, and it may be that the former Soviet position on the primacy of
treaties over customary law is in the process of evolution. In practice, though, the evidence

19 See also Comment by Belarus, United Nations General Assembly, Identification of Customary
International Law: Comments and Observations received from Governments, UN Doc. A/CN.4/716, 14
February 2018, pp. 3-4.
20 G.I. Tunkin, Theory of International Law (Translated by William E. Butler) (1974), p. 133.
21 Ibid., p. 136.
22 For the view that the Soviet emphasis on consent led to “a strong preference” for treaties over
customary law, see also Jennings and Watts, loc. cit., note 8, p. 29.

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does not point in that direction. In its 2018 intervention within the UN General Assembly
on the International Law Commission’s Conclusions on the Identification of Customary
International Law, Russia argued for a conclusion to the effect that practice and opinio juris
“could not establish a rule of customary international law if such a rule would conflict
with … a treaty rule.”23 This approach seems to retain primacy with treaty rules over custom.
And at the same time Russia maintained that:
if a State declared that a given practice accompanied by opinio juris did not
constitute a customary rule, then even if such a rule was formed in relations
among other States it would not be binding on the objecting States.24
Russia offered the latter observation in the context of the persistent objector rule
identified in the International Law Commission’s conclusions. Significantly, however, Russia
did not suggest that the dissident State’s objection needed either to be persistent or to
manifest itself at the time of inception of the putative customary rule. Overall, therefore,
the Russian position could be taken to mean that consent on the part of a given State is
necessary if a rule of customary law is to be binding on that State.

(d) Importance to States

Customary international law serves as a guide to States in their interaction with each
other. The rules of custom may govern, in various circumstances, the actions of the
executive, legislature and the judiciary. Although the precise impact of customary law
on the behaviour of different branches of government will depend on the constitutional
arrangements in a given State, failure to respect applicable customary law will in general
give rise to liability through rules on state responsibility.
The importance of customary law is especially evident in the judicial sphere within
some States. In monist jurisdictions, the courts may apply customary international law as
part of municipal law. When customary international law is to be so applied, this places
a responsibility on the court to determine the scope and content of the particular rule
of customary law under consideration. The matter was recently exemplified in a high
profile case in South Africa concerning Dr Gracha Mugabe, the wife of the then President
of Zimbabwe. In this case – Democratic Alliance v. Minister of International Relations
and Cooperation and Others25 -- Dr Mugabe was accused of assault with intent to cause
grievous bodily harm for actions undertaken while on a visit to South Africa.26 The South
African Government, in respect of Dr Mugabe’s actions, raised the defence of sovereign
immunity.27 For the South African Court, then, a central question was whether, in customary
international law, the spouse of a head of state is entitled to immunity ratione personae.28

23 United Nations General Assembly, Official Records, 73rd Session, Summary Record of the 22nd Meeting,
24 October 2018, A/C.6/73/SR.22, Statement by Ms Zamakhina (Russian Federation), at para. 44.
24 Ibid., para. 49.
25 Democratic Alliance v. Minister of International Relations and Cooperation and Others; Engels
and Another v. Minister of International Relations and Cooperation and Another (58755/17)(2018)
ZAGPPHC 534; (2018) 4 All SA 131 (GP); 2018 (6) SA 109 (GP); 2018 (2) SACR 654 (GP)(30 July 2018).
26 Ibid., para. 1.
27 Ibid., para. 12.
28 Ibid., para. 13.

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The court considered in some measure the relevant state practice and opinio juris, and
concluded that the evidence was “too contradictory” to support a definitive finding in
favour of extending sovereign immunity to the spouse of a head of state.29 Significantly,
therefore, the South African court’s decision turned essentially on its assessment of the
customary international law on the subject – a point which emphasises the importance of
customary law in some domestic judicial situations. In commenting on the International
Law Commission’s Conclusions on the Identification of Customary International Law in
2018, various States also attached value to the guidance which the Conclusions may give
to national courts as they apply international law in the domestic sphere.30

(e) Customary International Law in the Commonwealth Caribbean

For the Commonwealth Caribbean, the question arises whether, and to what extent,
customary international law may be applied by domestic courts? With respect to treaties,
Commonwealth Caribbean States adhere to dualist traditions according to which treaties
are not automatically applicable in municipal law. Thus, subject to certain qualifications,
a treaty binding on, say, Jamaica will not be binding on persons within Jamaica if the
State has failed to incorporate the treaty by domestic legislation. In some instances, the full
rigour of the incorporation requirement may not apply. So, for instance, an unincorporated
treaty may assist a local court in the interpretation of domestic legislation related to the
treaty. And, in the case of countries subject to the appellate jurisdiction of Caribbean Court
of Justice, an unincorporated treaty may have domestic impact in some instances where
the treaty has generated a legitimate expectation that its terms shall be respected, this
point being an important component in the majority approach taken by the Court in the
celebrated Boyce and Joseph decision.31
But what role should be ascribed to customary international law within Caribbean
jurisdictions? This question does not admit a ready response. On one view, rules of
customary international law should not automatically be part of Caribbean domestic
law because the relevant Caribbean constitutions do not make express provision for this
approach. These constitutions could quite easily have referred to customary international
law as part of our law, but they have not done so. Secondly, with reference to Article 38(1) of
the Statute of the International Court of Justice, customary international law and treaty law
are regarded as two systems with comparable force as formal sources of law. Why would a
coherent draftsperson require treaty rules to be incorporated into local law by legislation,
but adopt a different approach for customary international law? Thirdly, there seem to be
no clear precedents in which Caribbean courts have applied customary international law
as a part of domestic law, as part of a binding decision.

29 Ibid., paras. 35 and 36.

30 See, e.g., United Nations General Assembly Official Records, 73rd Session, A/C.6/73/SR.20 (France:
“useful to practitioners, particularly judges”, at para. 74); Peru: commended particularly to “domestic
judges”, para. 85); ibid., 73rd Session,A/C.6/73/SR.21 (Czech Republic:“useful guide for practitioners, in
particular judges”, para. 12); Slovakia:“useful reference for all those concerned with the identification
of customary international law, including domestic courts”, para. 23); ibid., A/C.6/73/SR.22:“valuable
and accessible tool for judges and other practitioners”, para. 85).
31 Attorney General of Barbados et al v. Jeffrey Joseph and Lennox Ricardo Boyce, [2006] CCJ 1 (AJ).

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On the other hand, the case for showing deference to customary international law in
Caribbean jurisdictions may also be made. To begin with, there is a fair degree of support
for the view that customary international law is a part of the common law of England.
Authorities have long been divided on the question whether R v Keyn32 supports the
automatic adoption of customary law in England; but that judgement has been reinforced
by the Court of Appeal decision in Trendtex v. The Central Bank of Nigeria33 and by
the position taken by jurists of high standing such as Sir Ian Brownlie.34 Moreover, the
pendulum has swung decisively in favour of incorporating customary international law
in English common law following decisions including R v Jones (Margaret),35 R (Keyu) v.
The Secretary of State for the Foreign and Commonwealth Office36 and most recently, R (on
the Application of the Freedom and Justice Party) and Others v. The Secretary of State for
the Foreign and Commonwealth Office.37 In this line of cases starting with R v Jones, the
courts have held that customary international law may be applied in the English courts
to the extent that the constitution permits this to be done. If this approach is transferred
to the common law context of the Caribbean, then customary international law could be
adopted into our domestic law in some instances. The matter remains open, however, not
least because the prevailing common law and constitutional principles in England could
today be treated as different from those in the Caribbean.
If customary international law is a part of the common law in the Commonwealth
Caribbean then its importance will be self-evident, given that the common law, as
interpreted by the courts, has a day-to-day impact on the lives of individuals. But even if
customary international law is not a part of the domestic law, its importance is assured.
Beyond the courts, customary law influences the practice of States in areas of international
relations not currently addressed by specific treaties; it also applies to areas outside the
scope of a given State’s treaty commitments.

III. The Elements of Custom

(a) Two Core Components
The International Law Commission’s Conclusions identify the main elements of
customary international law, and elaborate on the main features of this source of law.
Central to the ILC’s approach is affirmation that customary international law has two
core components, namely, (i) state practice and (ii) opinio juris. The Commission’s
position, which requires both elements to be present, is broadly supported by States in
the UN General Assembly and in international law doctrine.38 It has also been repeatedly

32 R v. Keyn (The Franconia) (1876) 2 Ex. D.

33 [1977] QB 529.
34 See, e.g., Ian Brownlie, Principles of Public International Law (6th ed., 2003), pp. 41-44.
35 (2006) UKHL 16; (2007) 1 AC 136.
36 (2015) UKSC 69; (2016) AC 1355.
37 https://redress.org/wp-content/uploads//2016/06/court-of-appeal-judgment.pdf (19/07/2018 (last
accessed August 9, 2019).
38 See, e.g., Jennings and Watts, loc. cit., note 8, p. 27. States in the UN General Assembly expressly
supporting the idea that both state practice and opinio juris need to be present for the formation of
a customary rule include: Belarus, UN Doc. A/CN.4/716, p. 9; Israel, ibid., p. 9; the USA, p.10; China, p.10;

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affirmed by the PCIJ and the ICJ. In a significant line of cases – including, among others,
The Lotus Case,39 The Asylum Case,40 The Nicaragua Case,41 The North Sea Continental Shelf
Cases,42 Malta/Libya43 and Jurisdictional Immunities of the State44 – the PCIJ and the ICJ
have affirmed the dual requirements of state practice and opinio juris. In Jurisdictional
Immunities of the State, the ICJ put the matter as follows:
…(A)s the Court made clear in the North Sea Continental Shelf cases,the existence
of a rule of customary international law requires that there be “a settled practice”
together with opinio juris (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands) Judgment, ICJ
Reports 1969, p. 44, para. 77. Moreover, as the Court has also observed,
‘(i)t is of course axiomatic that the material of customary international law
is to be looked for primarily in the actual practice and opinio juris of States
(Continental Shelf (Libya Arab Jamahiriya/Malta) Judgment, ICJ Reports
1985, pp. 29-30, para. 27).45
In the foregoing quotation, the Court has used language that puts the matter beyond
conjecture. It builds on the notion that custom is “general practice accepted as law”, and
it is routinely followed by domestic courts and other tribunals. The literature on this topic
has, however, prompted occasional questions. For example, it has been suggested that the
authoritative statement on the dual requirement set out in the North Sea Continental Shelf
Cases is actually an obiter dictum. This arises from the fact that the ICJ held both that there
was insufficient practice to support a customary rule and that opinio juris was lacking. The
significance of this point is almost certainly negated by the Court’s insistence that state
practice and opinio juris are axiomatic components of custom.
It is also arguable that the dual requirement may not have been strictly applied in the
ICJ’s decision in the Fisheries Jurisdiction Cases.46 In this set of cases, while considering the
notion of preferential rights for coastal States, the ICJ seemed to adopt a relaxed approach
to the identification of customary international law. Specifically, the ICJ noted that a
Resolution on preferential rights passed at the First United Nations Conference on the Law
of the Sea, and a proposal on the same issue at the Second United Nations Conference on
the Law of the Sea two years later, were approved by large majorities at the conferences.
The Court then concluded that this demonstrated overwhelming support for coastal state
preferential rights in some circumstances. As the Court’s review took place in the context
of a customary law claim, this could prompt the view that a customary rule could arise by

Denmark (on behalf of the Nordic countries), p.11.

39 The Case of the S.S.“Lotus”, PCIJ, Series A, No. 10 (1927), p. 28.
40 Colombian-Peruvian Asylum Case, Judgment of November 20th, 1950, ICJ Reports 1950, p. 266.
41 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986, p. 14.
42 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3.
43 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p. 13.
44 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports
2012, p. 99.
45 Ibid., pp. 122-123, para. 55.
46 ICJ Reports 1974, p. 3.

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majority votes at conferences without reference to the dual requirement of state practice
and opinio juris. In light of the Court’s reiteration of the dual requirement, however, it is fair
to suggest that the approach in the Fisheries Jurisdiction Cases has not retained favour at
the Court.
Another query concerning the dual requirement may be mentioned. To what extent does
the state practice criterion overlap with the question of opinio juris? Or more specifically, if
there is sufficient state practice in favour of a customary rule, does this raise a presumption
that opinio juris is present. In his dissenting opinion in the North Sea Continental Shelf Cases,
Judge Ad Hoc Sorensen recommended this approach.47 Judge Sorensen noted the difficulties
inherent in identifying opinio juris and stated, quoting Sir Hersch Lauterpacht, that:
the accurate principle on the subject consists in regarding all uniform conduct
of Governments… as evidencing the opinio necessitatis juris except when it is
shown that the conduct in question is not accompanied by any such intention.48
Notwithstanding the pedigree of the Lauterpacht approach, it is not supported
by the ICJ; nor is it reflected in current state pronouncements on the requirements of
customary international law.49 In Conclusion 3 of its text on the Identification of Customary
International Law, the ILC also states expressly that each of the two elements of custom is
to be separately ascertained.50 The ILC’s commentary on the issue further indicates that the
existence of one element of custom may not be deduced “merely from the existence of the
other.” 51 The same material may possibly be used to support practice and opinio juris, but
the material must nonetheless be assessed as part of separate enquiries into each element
of custom.52

(b) Practice of International Organisations

In its Conclusions on the Identification of Customary International Law, the ILC
reports on diverse aspects of the general practice contemplated in Article 38(1) of the
Statute of the ICJ. In the Commentary on Conclusion 4, the Commission stipulates that
the requirement of general practice refers “primarily” to the practice of States.53 This
stipulation, which will remind international lawyers of the distinction between the words
“primarily” and “exclusively” drawn by the ICJ in the Expenses Case,54 then opens the door

47 ICJ Reports 1969, p. 3 at p. 248.

48 Hersch Lauterpacht, The Development of International Law by the International Court (1958), p. 330.
49 For example, within the United Nations Sixth Committee, Jamaica referred briefly to the position of
Lauterpacht and Sorensen but added: “(i)t may be useful, for the avoidance of doubt, for the Draft
Conclusions expressly to state that no presumption in favour of the existence of a rule of customary
international law may be drawn from the existence of general practice alone”: Statement on Agenda
Item 78: Report of the International Law Commission on the Work of its Sixty-Sixth Session, Sixth
Committee, United Nations General Assembly, New York, 3rd November 2014.
50 ILC Conclusions, Conclusion 3, Paragraph 2.
51 ILC Conclusions, Commentary in Paragraph (8) on Conclusion 3.
52 Ibid.
53 ILC Conclusions, Commentary in Paragraph 2 on Conclusion 4.
54 Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opinion of 20
July 1962, p. 151 at p. 163.

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for the Commission to suggest that in some circumstances the practice of international
organisations may also contribute to the formation of customary international law.
The suggestion that practice on the part of international organisations – as distinct from
the practice of States -- may give rise to customary international law is controversial. As
a matter of tradition, the ICJ has normally determined rules of custom by reference to
state practice. This tradition is consistent with the approach taken by the International
Court of Justice, according to which the Court has repeatedly used state practice as the
touchstone for identifying customary law rules. To take but one of several examples, in the
Nicaragua Case, the Court stated that in order “to consider what are the rules of customary
law applicable to the present dispute… it has to direct its attention to the practice and
opinio juris of states.”55 On this basis, it is suggested that the lex lata requires reference only
to the practice (and opinio juris) of States.56 Secondly, there may be no necessity to rely on
the practice of international organisations in determining custom. This is so because the
practice of such organisations may be traced back to the practice of States: international
organisations by definition comprise States, so that international organisation practice will
ultimately reflect state practice. Within this perspective, then, it is the reaction of States to
various practices of international organisations that would assist in the determination of
custom, not the practices of the organisation.57 Thirdly, some States oppose reliance on
the practice of international organisations in the formation of custom on the basis that
it will be especially difficult to identify the opinio juris of international organisations.58
The practice of a given international organisation will in some cases be prompted by
decisions of States within the organisation, and these States may have different motives for
supporting the actions of the organisation. How should the organisation’s opinio juris be
determined in such circumstances? There would seem to be no agreed response to this
question, especially bearing in mind the variety of international organisations that exist
today.59 Similarly, the type of conduct of organisations that would constitute practice is not

55 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986, p. 14 at p. 97, para. 183; also quoted in the International Law
Commission, Draft Conclusions on Identification of Customary International Law, with Commentaries
(2018), Commentary, Paragraph (2) on Conclusion 4.
56 To this effect, see especially Statement by the United States of America on the ILC Draft Conclusions
on the Identification of Customary International Law, A/C.6/73/SR.29, para. 18. See also Comments
from the United States on the Identification of Customary International Law as Adopted by the
Commission in 2016 on First Reading, in United Nations General Assembly, Identification of Customary
International Law: Comments and Observations Received from Governments, UN Doc. A/CN.4/716, 14
February 2018, p. 18, at pp. 18-20. Iran also appears to have reservations on the use of the practice
of international organizations, but its position is not entirely without ambiguity: “the practice of
states members of an international organization and that of the organization itself needed to be
considered separately, and only the proven practice of States could be considered as evidence for
the identification of customary international law”, Statement by Iran, ibid., UN Doc. A/C.6/73/SR.24, at
para. 24.
57 ibid., UN Doc. A/C.6/73/SR.22, Statement of Russian Federation, at para. 45; Belarus, UN Doc. A/
CN.14/716, p.14.
58 In its statements on this issue, the United States of America complained that the ILC provided no
guidance on how opinio juris would be discerned: Statement by the United States of America, loc. cit.,
note 56, para. 20; Comments from the United States, loc. cit., note 56, pp. 20-21. The Netherlands, which
welcomed the idea of having international organisations contribute to customary law, mentioned
that the question of opinio juris should be addressed: the Netherlands, UN Doc. A/ CN.4/716, p. 16.
59 For reference to this issue as a point that remains “somewhat obscure”, see Thirlway, loc. cit., note 18, p.

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entirely clear. The ILC Conclusions list different forms of practice and the Commentary
recommends that international organisations would have forms of practice that apply,
mutatis mutandis: given, however, that States have executive, legislative and judicial
branches which may generate practice, while some international organisations do not, the
range of items that could constitute international organisational practice may need to be
specified with greater precision.60
Notwithstanding such concerns, the ILC Conclusions support reliance on organisational
practice in the formation of rules of custom. The approach recommended by the ILC is
somewhat cautious: it states that “in certain cases,”61 such practice also “contributes” to the
formation or expression of custom.62 Noticeably, the Conclusion does not identify what the
“certain cases” may be; nor does it specify whether the contribution of an organisation
to practice would by itself be sufficient to lead to the formation of a customary rule. In
the Commentary on Conclusion 4, the ILC indicates that this provision on international
organisations deals with practice attributed to the international organisations themselves
and not to the practice of States within the organisation:63 this ensures that Conclusion 4
is not concerned with issues such as the legal effect of United Nations General Assembly
Resolutions, which emanate from States – these are addressed elsewhere in the ILC
Conclusions.64 The Commentary helps to clarify some of the items to be covered by the
term“in certain cases”: it indicates that these cases arise where: (a) the subject matter of the
practice falls within the mandate of the organisation,and/or (b) where the issue concerning
custom is addressed directly to the organisation.65 This may be a non-exhaustive list.66 The
Commentary also contemplates that the practice of international organisations may be of
particular relevance where the organisation has been granted exclusive competences by
its member States67 or where transferred competences, though not necessarily exclusive,
are such as may normally be carried out by States (e.g. treaty-making practice).68

57. The ILC Commentary acknowledges that international organisations exist in different forms, have
diverse membership structures, powers and functions; it does not ultimately believe that this diversity
should rule out the possibility that some organisations may contribute to practice: ILC Conclusions,
Commentary in Paragraph 7 on Conclusion 4.
60 See also Comments from the United States, loc.cit., note 56, p. 21 (“the forms of State practice discussed
in draft conclusion 6 do not all have clear analogues in the activities of international organizations.”)
61 For the view that“in certain cases”should be amended to read“in limited cases”in order to emphasize
that practice and opinio juris are primarily concerned with States, see Singapore, UN Doc.A/CN.4/716,
p. 18.
62 ILC Conclusion 4, Paragraph 2.
63 ILC Conclusions, Commentary in Paragraph 4 on Conclusion 4.
64 See infra at note 119 and accompanying text.
65 ILC Conclusions, Commentary in Paragraph 5 on Conclusion 4.
66 But cf. The Netherlands, UN Doc. A/CN.4/716, p. 16 (for the suggestion that the two cases mentioned
in the Commentary in Paragraph 6 may be exclusive).
67 On this point, Israel was prepared to support giving effect to organisational practice if States have
given over exclusive competence to the organisation, or if the matter pertained to the internal
working of the organisation. Beyond that, Israel expressed reservations about the “overly broad role”
assigned to organisations in the ILC Commentaries: UN Doc.A/C.6/73/SR.23 at para. 23. See also Israel,
UN Doc. A/CN.4/716, p. 15.
68 Ibid., Commentary in Paragraph 6 on Conclusion 4.

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Various States in the UN General Assembly have expressed their support for the
approach presented by the ILC on this point.69 Some have taken the view that international
organisations are important entities in contemporary international relations, and so,
there is value in recognising organisational practice as a component of international
law.70 Some states may also recognise that if competences are transferred to international
organisations away from States, there should be a method by which the practice of the
organisation is acknowledged and relied upon for guidance as to legal rules.71 In addition,
it may be that some States are undeterred by the traditional approach which assumes
that States are themselves the only source of practice: since the time of the Reparations
Case,72 the ICJ has acknowledged that international organisations have international
legal personality, although they are not States. In this context, there may be no reason in
principle to maintain that “general practice accepted as law” cannot include the practice
of international organisations.Whether or not it does may turn ultimately on state reactions
to the ILC Conclusion on the point.

(c) Forms of Practice

Conclusion 5 of the ILC Conclusions accepts the traditional position that state practice
comprises conduct of the State through the exercise executive, legislative, judicial and other
functions. Conclusion 6 builds on this general foundation, adding that the practice may be
either physical or verbal, and that it may, under certain circumstances, include inaction.
Conclusion 6 also specifies some of the forms of state practice that may be used to identify
customary international law. The list of forms of practice identified by the Commission in
Conclusion 6 includes, inter alia:
diplomatic acts and correspondence, conduct in connection with resolutions
adopted by an international organization or at an intergovernmental conference,
conduct in connection with treaties, executive conduct, including operational
conduct “on the ground”; legislative and administrative acts, and decisions of
national courts.73
The approach taken by the Commission with respect to forms of practice invites
particular comments.To begin with, the Commission could arguably have listed its putative
forms of practice in the Commentaries, and could have sought to generalise its position in
the Conclusion: this generalised position could be that all state acts and possibly omissions
may be treated as state practice. This is not merely an issue of cosmetics. The Commission
is careful to provide that its list of forms of practice is not exhaustive, and underlines this by
affirming that it is “not limited to” the specified items. In practice, however, the Commission’s

69 For general support for the ILC approach on this issue, see, e.g., United Nations General Assembly
Official Records, 73rd Session, A/C.6/73/SR.20, Denmark (on behalf of the Nordic countries), at para.
56; ibid., A/C.6/73/SR.23, South Africa, at para. 9.
70 Ibid., A/C.6/73/SR.20, the European Union, at para. 49; Austria, at para. 60.
71 Ibid., A/C.6/73/SR.21, Estonia: “Excluding such practice would preclude States that directed an
International Organization to execute in their place actions falling within their own competence
from contributing to customary international law”, at para. 55.
72 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports
1949, p. 174.
73 ILC Conclusions, Conclusion 6, Paragraph 2.

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drafting approach invites the risk that persons seeking to identify customary international
law will – at least as a starting point -- attach priority to the listed items.
To be sure, the Commission will probably respond that there is no predetermined
hierarchy among the various forms of practice;74 but it is not clear that this is a full response.
If the list is not exhaustive, and it implies no hierarchy, why then has it been elevated to the
status of a Conclusion, when the examples could have been stated in the Commentary?75
The Commission’s approach may also cause critics to question whether some items have
been deliberately omitted from the list. This may be illustrated by reference to pleadings
before the International Court of Justice. Such pleadings by a given State are apt to
represent the State’s practice in strong form, and may also reflect its opinio juris. And yet, it
is mentioned neither among the Commission’s forms of practice nor in the Commentaries.
It could be argued that such pleadings may possibly not carry the same weight as other
items of practice expressly listed, though this is not likely to be the Commission’s intention.
Secondly, it should be noted that the Commission’s Conclusions provide unequivocal
support for the notion that forms of practice may be either physical or verbal.76 In the
Anglo-Norwegian Fisheries Case,77 Judge Read in his dissenting opinion recommended
a different approach. For Judge Read, writing in the context of the law of the sea, it was
not sufficient for States to make maritime claims if they wished to establish customary
international law. Rather, in order to support the development of a rule of customary law,
States needed to assert sovereignty over foreign ships: “the only convincing evidence of
State practice is to be found in seizures, where the coastal State asserts its sovereignty over
trespassing foreign ships.”78 A similar approach was recommended by D’Amato in his work
on customary international law from 1971.79 Irrespective of what the situation may have
been in the past, it is undeniable that statements may now constitute state practice for the
purposes of forming customary international law.80 From numerous instances which may
be cited, it may be sufficient to observe that the development of the Exclusive Economic
Zone concept in the customary law of the sea was based in large part on international
and regional declarations as well as legislative acts. These verbal acts were not always
supported by physical acts, and may not even frequently have been bolstered by physical
acts. The idea that customary international law needs to be supported by physical acts
places developing countries without ready means of enforcement at a disadvantage in

74 Ibid., Conclusion 6, Paragraph 3.

75 In its observations on this Conclusion, the United States did not oppose the listing of items; it did,
however, recommend a reordering of the items, arguing that the more “action oriented” forms of
practice such as “executive conduct, including operational conduct “on the ground,”” should be
mentioned first: Comments from the United States, loc. cit., note 56, p. 29. This proposal reminds us
that States are mindful of form, as well as substance, in the assessment of international instruments.
76 On this issue, see, e.g., Michael Akehurst,“Custom as a Source of International Law,” British Year Book
of International Law, Vol. 47 (1975), p. 1.
77 ICJ Reports, 1951, p. 116.
78 At p. 191.
79 The Concept of Custom in International Law (1971).
80 In the UN General Assembly debate on the ILC Conclusions, Israel argued for caution when verbal
conduct is used as practice: UN Doc. A/CN.4/716, pp. 25-26.

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international relations.It is salutary that the ILC has not adopted the position recommended
by Judge Read and Professor D’Amato.81
Thirdly, the ILC’s Conclusion 6 helpfully indicates that inaction may amount to state
practice. This will not be the case for every instance of inaction. Instead, where a State
could take action, but deliberately opts not to do so, this decision will count as practice.82 In
the Commentary the ILC provides examples which clarify the relevant circumstances: one
instance, reminiscent of the situation in the Lotus Case,83 occurs where a State deliberately
abstains from instituting criminal proceedings against foreign state officials.84 The notion
that the inaction should be deliberate is important. If a State is not aware of particular
circumstances that could call for action, and therefore takes no action, this should
not count as state practice; to treat it as practice which could contribute to customary
international law could prompt misleading conclusions. Consider State X, a land-locked
country, and the neighbouring State Y, a coastal State. Nationals of State X exercise transit
across State Y to the sea, unbeknownst to State Y. In an assessment of whether land-locked
states have a customary international law right of access to the sea across neighbouring
countries, the inclusion of State Y’s inaction as state practice would be unjustifiable.

(d) Quantity and Nature of Practice

In the North Sea Continental Shelf Cases,85 the ICJ set out the requirements to be met for
practice to give rise to a rule of customary international law. The Court held that:
even without the passage of any considerable period of time, a very widespread
and representative participation … might suffice of itself, provided it included
that of States whose interests were specially affected.86
In the same case, the Court held further that:
Although the passage of only a short period of time is not necessarily, or of itself
a bar to the formation of a new rule of customary international law on the basis
of what was originally a purely conventional rule, an indispensable requirement
would be that within the period in question,short though it might be,State practice,
including that of States whose interests are specially affected should have been
both extensive and virtually uniform in the sense of the provision invoked.87
The North Sea decision was concerned with the circumstances in which a rule in a
treaty may become a rule of customary law, but its dicta on the elements required for the
development of customary international law are regarded as authoritative. Thus, the ILC’s
Conclusion 8 on the quantity of practice required for the development of a custom indicates

81 For the view, though, that “action-oriented practice ... is frequently the most probative form of practice,”
see Comments from the United States, loc. cit., note 56, p. 29.
82 For support from the United Kingdom on this point, see A/C.6/73/SR.22, at para. 82; see also Comment
from the United States, loc. cit., note 56, p. 28.
83 The Case of the S.S.“Lotus”, PCIJ, Series A, No. 10 (1927), p. 28.
84 ILC Conclusions, Commentary in Paragraph (3) on Conclusion 6.
85 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3.
86 Ibid., at p. 42, para. 73.
87 Ibid., p. 43, para. 74.

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that “the relevant practice must be general, meaning that it must be sufficiently widespread
and representative, as well as consistent.”88 Also in keeping with the North Sea criteria, the ILC
indicates that provided the practice is general, no particular duration is required.89
In the North Sea decision, the Court affirmed the need for “very widespread and
representative participation”, while the ILC’s Conclusion 8 refers to “sufficiently widespread
and representative” practice. Does the ILC’s position replicate the Court’s authoritative
pronouncement? Technically, two different standards are contemplated here.The North Sea
approach requires practice among a very widespread and representative group of States in
absolute terms: this would, it is suggested, imply at the very least, majority participation for a
practice to assume customary status. In contrast, Conclusion 8 connotes a relative standard
under which the widespread and representative character depends on the circumstances
under consideration: it is suggested that pursuant to Conclusion 8, there may be instances
in which a minority group of States could be regarded as “sufficiently” widespread and
representative.The introduction of the word “sufficiently” is justified by the Commission on
the ground that it acknowledges the wide variety of circumstances in which the quantity of
state practice may need to be assessed.90 The problem, though, is that it may actually depart
from the standard indicated by the Court, as required by law. In this regard, it should also be
recalled that the Court requires state practice to be “virtually uniform”; the ILC Conclusion
8 does not incorporate this standard, a point which could support the view that the ILC’s
approach is generally less strict than that contemplated by the Court.
The dicta from the North Sea decision quoted above also refer to the question of
time and to the significance of participation by “specially affected” States. As to time, the
Court’s position – well-established in the law – is that a custom may evolve within a short
time period, provided that there is very widespread, representative and consistent state
practice. Subject to the insertion of the “sufficiency” criterion concerning widespread
and representative practice, the ILC Conclusion reflects the Court’s approach concerning
the time element of custom. In this approach, although the time period concerning the
development of a custom may be short, there must be a time period. This is logical. If
the practice in support of a customary rule needs to be widespread, representative and
consistent, amounting to a “settled practice”, then States must have the opportunity to take
part in this practice.The passage of some period of time will thus be necessary to establish
that a custom has developed.
With such considerations in mind, the ILC, in following the Court, has taken the
opportunity to deny the possibility of “instant customary law.”91 In so doing, the ILC has not
necessarily suggested that there may be no instant obligations in international law outside
the context of treaty relations. Bin Cheng, a proponent of “instant customary law”, argued,
with reference to United Nations Resolutions on outer space, that if consensus among
States had evolved at a given point in time, then an instant custom could be identified,
even in the absence of practice other than the Resolutions.92 It is possible that instant

88 ILC Conclusion 8, Paragraph 1.

89 Ibid., Conclusion 8, Paragraph 2.
90 Commentary in Paragraph (3) on Conclusion 8.
91 In the UN General Assembly debate in 2018, Singapore expressly embraced the ILC’s approach on
this point: UN Doc. A/CN.4/716, p. 33.
92 See especially Bin Cheng, “United Nations Resolutions on Outer Space: Instant International

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obligations developed, not pursuant to customary law, but by virtue of the concept of
opposability: in this scenario, each State by its actions has undertaken a legal commitment,
which it cannot deny.
Closely related to, but distinct from, the notion of “instant customary law” is the idea
of the “Grotian Moment.”93 According to Michael Scharf, the crystallisation of rules of
customary international law has historically been a protracted process taken place over
decades of time.94 In some cases, however, the process which results in the formation of
new rules of custom is accelerated.95 Scharf argues that this accelerated process takes
place at Grotian Moments, times during which a context of fundamental change exercises
special influence on the development of customary law.96 Neither the ILC Conclusions
nor the Commentaries mention the concept of the Grotian Moment. This concept may
be helpful as a reminder that in some circumstances States may implicitly recognise the
need to accelerate the process of developing the law; it may also demonstrate that forms of
practice such as General Assembly Resolutions, judicial decisions and multilateral treaties
may be useful devices to promote accelerated change in custom.97 But, bearing in mind
that the ICJ has fully acknowledged the legal possibility that customary law may develop
within a short period of time, it is fair to suggest that the concept of the Grotian Moment
adds no new criterion for the identification of customary international law. In some cases,
the factors that give rise to the development of customary international law may arise
rapidly, while in others this may occur more slowly; in both cases, however, the factors –
state practice and opinio juris – will be the same.
As to “specially affected” States, the ILC accepts that for practice to be representative
it must include States that are “particularly involved in the relevant activity or are most
likely to be concerned with the alleged rule.”98 In its assessment, the ILC Commentary
notes that all States will be equally affected by certain rules and then offers two instances
in which some States may be regarded as specially affected.99 These instances merit
attention. First, the ILC suggests that it would be impractical to consider the customary
law on navigation in maritime zones without paying attention to the practice of coastal
States and flag States.100 This is true, but the Commission does not indicate which States
may thereby be omitted from consideration as not “specially affected.” One answer to this
may possibly be land-locked States,101 but this is open to counterargument. Land-locked

Customary Law?” Indian Journal of International Law, Vol. 5 (1965), p. 23, at pp. 35-40.
93 See, in particular, Michael P. Scharf, Customary International Law in Times of Fundamental Change:
Recognizing Grotian Moments (2013).
94 Michael P. Scharf, “Accelerated Formation of Customary International Law”, ILSA Journal of
International & Comparative Law,Vol. 20(2), p. 305, at p. 306.
95 Ibid.
96 Ibid.
97 Ibid., p. 339.
98 ILC Conclusions, Commentary on Conclusion 8 in Paragraph (4).
99 Ibid.
100 Ibid.
101 In the North Sea Continental Shelf Cases, the Court relied on the case of land-locked States to illustrate
the position that some countries will lack interest in continental shelf delimitation: ICJ Reports 1969,
p. 3, at pp. 42 and 49-90; see also the Dissenting Opinion of Judge Lachs, at p. 227 and that of Judge

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States have traditionally had the right to be flag States on the high seas,102 have the right of
innocent passage,103 and, quite independently of these rights, access to the living resources
of neighbouring Exclusive Economic Zones.104 They may claim to be specially affected
by changes to various rules on maritime zones. What, then, about States which play only
a limited role in the sea today? These States may argue that the prevailing law restricts
their participation, and that to counter this situation, they should have the same right to
influence the evolving law as any other State: they are specially affected by virtue of their
deprivation, they may argue.
The second example raised by the ILC is also somewhat question-begging. It presumes
that the practice of both capital-exporting and capital-importing States should be included
in the assessment of the customary international law on foreign investment.105 Again, this is
plausible, but it prompts the question: which States may be omitted from this assessment?
In the modern, globalised environment, most States will be involved in the transnational
flow of capital, and, even the notable exceptions that have limited flows aspire to receiving
increased foreign investment on suitable terms.106
This analysis points to the view that most States are specially affected -- or perceive
themselves to be -- in one way or another in relation to international law rules. Some States
also have reservations about this criterion of influence in the law because they believe
it is incompatible with the notion of the sovereign equality of States.107 With reference
to sovereign equality, the United Nations General Assembly adheres, for instance, to the
principle of “one state, one vote,”108 and similarly, the mechanics of multilateral treaty-
making allow equal treatment to all States. In this context, a doctrine which expressly
acknowledges a special place for some States in the formulation of customary law could
be regarded as anomalous. The ILC may be mindful of this criticism: its Commentary
indicates that the term “specially affected” States should not be taken to refer to the relative

Tanaka, at p. 176.
102 High Seas Convention, Article 4; Montego Bay Convention, Article 90.
103 Convention on the Territorial Sea and Contiguous Zone, Article 14; Montego Bay Convention, Article
17.
104 Montego Bay Convention, Article 69.
105 For reference to different perspectives of capital-exporting and capital-importing countries in this
area of the law, see, e.g., M.Sornarahah, The International Law on Foreign Investment (3rd ed., 2010), p.
6.
106 From as early as 1990, the United Nations noted that the process of economic liberalisation involving
foreign capital was underway – in its preliminary stages with challenges and prospects – in certain
newly-opened economies: see United Nations Economic and Social Council, Commission on
Transnational Corporations, Sixteenth Session, 2-11 April 1990, Strengthening the Negotiating Capacity
of Developing Countries in their Dealings with Transnational Corporations: Experience Gained in
Technical Co-operation Activities with respect to the Formulation and Implementation of Foreign
Investment Policies: Report of the Secretary- General, UN Doc. E/C.10/1990/14, 1 February 1990, esp. at
pp. 7-10.
107 United Nations Charter, Article 2(1). Although noting that the principle of sovereign equality among
UN member States raises “unusual difficulties” of interpretation, Simma et al suggest that one
plausible meaning is that the UN is based on the principles of equality and sovereignty of member
States: Bruno Simma et al (eds.), The Charter of the United Nations: A Commentary (1995), pp. 78-79.
108 United Nations Charter, Article 18(1).

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power of States.109 Notice, though, that powerful States will have the capacity to be specially
affected in most respects. In fairness to the ILC, the concept of the specially affected
State is a part of the lex lata coming from the North Sea decision, and its inclusion in the
Commentary is justifiable on that ground.110 As a practical matter as well, the concept may
help practitioners and judges to decide on points of emphasis when they are required to
assess a mass of state practice.And, from the point of view of realpolitik, it may be suggested
that some countries should have more influence than others in shaping certain areas of
the law, as has historically been the case.111 Overall, however, the doctrine is problematic in
today’s international political environment of sovereign equality.

IV. Opinio Juris

The concept of opinio juris is sometimes said to distinguish“a mere usage”or a habit from
a rule of customary international law. So, for example, various ceremonial practices are
undertaken repeatedly by diplomats, but these practices do not amount to law. According
to legal theory, they do not amount to customary international law because States do not
undertake them with a sense of legal obligation. This sense of legal obligation is thus a
subjective component associated with state practice.
As already noted, the jurisprudence of the ICJ requires both state practice and opinio
juris to be present for customary international law rule to be established. This approach is
reiterated in Conclusions 9 and 10 of the ILC’s Conclusions. Conclusion 9 states in part that:
The requirement, as a constituent element of customary international law, that
the general practice be accepted as law (opinio juris) means that the practice
in question must be undertaken with a sense of legal right or obligation.The
inclusion of a reference to practice being undertaken with a sense of legal
“right” is not entirely in keeping with the approach taken by most jurists. The
majority approach is that opinio juris refers to action taken out of a sense of legal
“obligation” only.112 Does this difference affect our understanding of the opinio
juris requirement? It is suggested that the answer is no. In keeping with both
approaches, a rule of customary international law will arise on the basis of state

109 Commentary on Conclusion 8, Paragraph (4).

110 For Israel’s complaint in the UN General Assembly that the ILC Conclusions have relegated the
concept of “specially affected states” to the Commentary, see UN Doc. A/CN.4//716, p. 31. Israel also
maintained that the practice and opinio juris of specially affected States “must” exist for custom to
evolve: ibid. (emphasis in original). The Netherlands shared this perspective: ibid., p. 33.
111 Hersch Lauterpacht was inclined to this view. He argued:“… assuming here that we are confronted
with the creation of new international law by custom, what matters is not so much the number of
states participating in its creation and the length of the period within which that change takes place,
as the relative importance, in any particular sphere, of states inaugurating the change. In a matter
closely related to the principle of the freedom of the sea the conduct of the two principal maritime
Powers – such as Great Britain and the United States – is of special importance:” Lauterpacht,
“Sovereignty over Submarine Areas,” British Year Book of International Law,Vol. 27, p. 376 at p. 394.
112 For United States opposition to the insertion of the term “rights” in the definition of opinio juris, see
Comments from the United States, loc. cit., note 56, pp. 36-37. This opposition seems to be based
on the fact that the traditional approach (with the reference to a “sense of obligation” only) seems
to be established and accepted. The United States also takes the view that the change would be
“confusing:” ibid.

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practice and state views on whether they are obliged, entitled or permitted to
undertake the state practice.
In the general literature, the opinio juris requirement has sometimes been criticised as
lacking clarity. It is said that the concept requires States to believe that a rule of customary
international law already exists in order to bring that rule into existence.To take an example
from the law of the sea, at a particular point in time, most States had a territorial zone
limited to a three-mile width, and believed this was a part of the law. Subsequently, several
States promulgated 12-mile territorial seas, and expressed the view that these wider zones
should be part of the law. But, according to the opinio juris concept, the 12-mile territorial
sea States would have had to believe that 12-mile zones were permitted at the very time
that they were arguing that the law should be changed from three miles to 12.The ILC does
not seek to address this paradox.
In Conclusion 10, the ILC presents forms of evidence that may be used to support the
opinio juris of a State. Some of the items listed here, such as diplomatic correspondence
and judicial decisions, overlap significantly with the items of state practice set out in
Conclusion 6. Where the state practice is in the verbal form, this overlap is to be expected.
Significantly, however, when the verbal act is used as state practice its purpose is different
from the purpose associated with opinio juris. In the former, the verbal act is one of the items
in assessing whether the State has acted consistently, and whether the State is a member
of the very widespread and representative group carrying out a particular practice. On
the other hand, where the verbal act is used as evidence of opinio juris, it will need to be
examined for conclusions which may be drawn about the State’s motivations and reasons
for adopting the practice.
The opinio juris requirement may be viewed as a means for the exercise of judicial
discretion in cases concerning customary international law. In a given case, the decision as
to whether there is sufficient opinio juris to support a finding that a customary rule exists
will turn not only on the judge’s interpretation of the psychological factors motivating the
states involved; it will also depend on the weight which the judge gives to each factor. Both
the judge’s assessment of the psychological factors and the weight to be attached thereto
will be discretionary considerations.

V. Treaties and Other Material

Under the heading “Significance of Certain Materials for the Identification of Customary
International Law,” the ILC considers in some detail the place of treaties,113 resolutions,114
decisions of courts and tribunals115 and teachings of publicists116 as particular elements
of custom. The ILC emphasises that the content and context of these items may help to
give precise guidance in the identification of state practice and opinio juris. With respect
to treaties, the Commission relies strongly on the authority of the North Sea Continental

113 ILC Conclusions, Conclusion 11.

114 Conclusion 12.
115 Conclusion 13.
116 Conclusion 14.

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Shelf Cases117 in the assessment of the circumstances in which a treaty rule may reflect
customary law. In brief, the treaty rule may codify a customary rule, it may lead to the
crystallisation of the customary rule, or it may generate a new rule of custom.118 Resolutions
do not of themselves create customary international law, but they may provide evidence
of the existence and content of customary rules.119 Decisions of international courts and
tribunals, and especially of the ICJ, are subsidiary means of determining rules of customary
international law,120 while regard may also be had to national courts as a subsidiary means
of determining customary rules.121 Teachings of jurists also constitute a subsidiary means
for determining customary law, but, as with judicial decisions, teachings are not themselves
a source of law.122

VI. Persistent Objection

In its final sections, the ILC report addresses two sets of issues, namely, matters relating to
the persistent objector and to particular customary international law.123 As to the former, the
ILC reiterates the view that if a State persistently objects to an “emerging” rule of customary
law and maintains its objection after the rule has crystallised, then the rule will not be
binding on the State.124 The ILC indicates that the persistent objector rule is recognised in

117 ICJ Reports 1969, p.3.

118 Conclusion 11. For discussion on the North Sea criteria concerning circumstances in which a
treaty rule may also be a rule of customary international law, see, eg, Vaughan Lowe, International
Law (2007), pp. 83-84; Maurice Mendelson, “The International Court of Justice and the Sources of
International Law,” in Vaughan Lowe and Malgosia Fitzmaurice (eds.), Fifty Years of the International
Court of Justice (1996), pp. 72-79. In the Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, ICJ Reports 2012, p. 624, the ICJ held that Articles 74, 83 and 121 of the Montego Bay
Convention reflected customary international law. In reaching its conclusion on the customary status
of Article 121, the Court found that the legal regime of islands set out in that provision “forms an
indivisible regime all of which … has the status of customary international law:” para. 139.The United
States has questioned the validity of the concept of “invisible regimes” as presented in this case on
the ground that it is unsupported by state practice: Comments from the United States of America, loc.
cit., note 56, p. 10.
119 Conclusion 12. For recent consideration by the ICJ of the legal significance of General Assembly
Resolutions, and especially of General Assembly Resolution 1514 (XV) of 14 December 1960, see The
Chagos Archipelago Advisory Opinion (Legal Consequences of the Separation of the Chagos Archipelago
from Mauritius in 1965), ICJ Advisory Opinion, 25 February 2019.The Court defined Resolution 1514 as
“a defining moment” in the consolidation of state practice on decolonisation, and concluded that the
Resolution has “a declaratory character with regard to the right of self-determination as a customary
norm:” paras. 150 and 152. In his Separate Opinion, Judge Robinson categorized Resolution 1514 and
Resolution 2625 of 1970 (the Declaration of Principles of International Law concerning Friendly
Relations and Co-operation) as among “the greatest achievements of the United Nations,” and noted
that they both reflect customary international law: para. 18. In a Joint Opinion in the case, Judges
Cancado Trindade and Robinson also emphasised, inter alia, that Resolution 1514 “crystallized the
right of peoples to self-determination in general international law:” para. 4.
120 Conclusion 13(1).
121 Conclusion 13(2).
122 Conclusion 14.
123 Conclusions 15 and 16, respectively.
124 Commentary on Conclusion 15, Paragraph (1) (emphasis in original).

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“both international and domestic case law, as well as in other contexts;”125 although this
is correct,126 it may be tendentious if it is meant to suggest that the rule is accepted by
States without question.127 The only ICJ authority cited by the ILC in support of the rule is
the Anglo-Norwegian Fisheries Case.128 In this case, the Court found that the 10-mile rule
for closing off bays had not become a part of “general international law;”129 in an oft-cited
dictum, the Court then noted that:
In any event the 10-mile rule would appear to be inapplicable as against Norway
inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast.130
The ILC takes the view that this dictum and other sources of law provide ample support
for the persistent objector rule; even so, however, it needs to be acknowledged that the
dictum is clearly obiter.
In the Asylum Case,131 the ICJ also offered some degree of support for the persistent
objector rule. Here, Colombia had argued in favour of a regional custom that would entitle
it, as the State granting asylum, to unilaterally define an offence as political: this unilateral
definition would then be binding on Peru by virtue of the putative custom. The Court held
that Colombia had failed to establish the custom, and added:
But even if it could be supposed that such a custom existed between certain
Latin American States only, it could not be invoked against Peru which, far from
having by its attitude adhered to it, has, on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of 1933 and 1939, which were the
first to include a rule concerning the qualification of the offence in matters of
diplomatic asylum.132
On one reading, this dictum refers to the fact that Peru had not become a party to the
Montevideo Convention, and as such, it merely affirms that a treaty will not be binding on
non-parties qua treaty. On the other hand, the dictum is presented in the context of a review
of customary law. Thus, it may be assumed, arguendo, that the Court placed Peru in the
position of a persistent objector, and concluded that it would not be bound by the putative

125 Commentary on Conclusion 15, Paragraph (4).

126 From the secondary literature, see, e.g., Charles Quince, The Persistent Objector and Customary
International Law (2010), esp. pp. 48-79; Olufemi Elias, “Some Remarks on the Persistent Objector
Rule in Customary International Law,” The Denning Law Journal,Vol. 6 (1991), p. 37; James Crawford,
Brownlie’s Principles of Public International Law (8th ed., 2012), p. 28; Jonathan Charney,“The Persistent
Objector Rule and the Development of Customary International Law,”British Year Book of International
Law,Vol. 56 (1985), p.1.
127 For the view that the persistent objector rule has only weak judicial recognition and no support in
state practice, see Patrick Dumberry,“Incoherent and Ineffective: The Concept of Persistent Objector
Revisited,” International and Comparative Law Quarterly,Vol. 59 (2010), p. 779.
128 Fisheries Case Judgment of 18 December 1951, ICJ Reports 1951, p. 116 at p. 131. Decisions or
recommendations from other tribunals are also cited in footnote 778 accompanying the text to
Commentary in Paragraph (4) on Conclusion 15.
129 Ibid.
130 Ibid.
131 Colombian-Peruvian Asylum Case, Judgment of November 20th, 1950, ICJ Reports 1950, p. 266.
132 Ibid., at pp. 277-8.

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custom. Noticeably, however, the Court’s position in the Asylum Case is also presented as
an obiter dictum.133
Some States may have reservations about the persistent objector rule.134 It is, for one
thing, vulnerable to the criticism that it may be biased against new States. In some cases,
these States will not have had the opportunity to object to emerging customary rules
because they were not independent at the material times.135 Admittedly, with the process
of decolonisation approaching its end, the impact of this problem has been reduced.136
For another, some States, with small diplomatic establishments, may sometimes find the
criterion of persistence to be onerous.The State may lack the means persistently to protest
against the development of a rule which it views with disfavour.Another point of reservation
concerns the vagueness inherent in the concept of persistence.137 The objecting State must
exercise judgement concerning the occasions on which it must present its dissent and it
must ensure that its position is offered “without significant contradictions.”138 Clearly, the
State will not need to protest on every public occasion, and at the other extreme, it must
not remain silent when faced with significant evidence of state practice or opinio juris
against its interest. But the occasions for response between these limits may be interpreted
in divergent ways.139

VII. Particular Customary Law

The ILC’s treatment of particular customary law is uncontroversial. Conclusion 16 affirms
that a particular customary rule may be “regional, local or other.” The ICJ has affirmed the
existence of regional and local customs in the Asylum140 and Right of Passage141 Cases, and
this approach is supported by the ILC. The ILC has also offered support for “other” customs

133 For the view that the ICJ’s dicta on persistent objection in the Anglo-Norwegian Fisheries Case and
the Asylum Case exemplify “delphic utterances” and reflect “obscure language,” see Mendelson, loc.
cit., note 118, p. 63 at p. 72.
134 For some states, though, these reservations do not seem to rise to the level of opposition: see, e.g.,
Belarus, UN Doc A/CN.4/716, p. 51; China, ibid. The Republic of Korea has described the persistent
objector concept as “one of the most controversial issues in the theory of customary international
law:”ibid., p. 55. Denmark (on behalf of the Nordic countries), El Salvador, New Zealand and Singapore
are among states that share the ILC’s view that rules of jus cogens will prevail over the position taken
by a persistent objector: ibid., pp. 52, 54 and 55.
135 See, e.g., the American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the
United States,Vol. 1, Section 102 (d), p. 26:“A state that enters the international system after a practice
has ripened into a rule of international law is bound by that rule.” For comment, see also Akehurst,
loc. cit., note 76, pp. 27-8.
136 The perception that the system is biased against States arising from colonisation from the middle of
the 20th century may nonetheless persist.
137 For resistance to the idea that the objecting State needs to repeat its objection to an emerging rule to
be successful, see the Netherlands, UN Doc. A/CN.4/716, p. 54.
138 Commentary on Conclusion 15, Paragraph (9).
139 See, e.g., Belarus, UN Doc. A/CN.4/716, p.51; China, ibid.; Israel, ibid., p. 53; USA, ibid., p. 55. For a
recommendation that the persistent objector should have a duty to express clearly its retraction
from an earlier position of objection, see Israel, ibid., pp. 52-53.
140 Colombian-Peruvian Asylum Case, Judgment of November 20th, 1950, ICJ Reports 1950, p. 266.
141 Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, ICJ Reports
1960, p. 6.

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in this context: this confirms that particular rules of customary international law may exist
among groups of States independently of geographical location.142 Where, for example, an
economic grouping develops state practice and evidences opinio juris, this community
could share rules of particular customary international law in common.

VIII. Application
Generally, therefore, the ILC report is a substantial mine of information on the workings of
a major source of international law. From the standpoint of developing States, there may be
value in considering briefly how the rules recommended by the Commission fit together
in practice. One example concerns the identification of customary international law rules
on the deep seabed.143 Most, if not all, developing States have traditionally supported the
proposition that the rules in Part XI of the Montego Bay Convention have passed into the
corpus of customary international law. In support of this proposition today, developing
countries could argue that a host of factors point steadily to the likely result that Part XI has
customary law status, with binding effect on States that are not party to the Convention.
Among other things, these factors include the high level of state participation in the
Convention,144 the fact that both developing and developed States have become parties,145
the language of some provisions of Part XI which suggests the intention to establish an
objective regime,146 as well as the content of United Nations General Assembly Resolution
2749 which anticipated and affirmed support for the conventional regime.147 In addition,
developing countries could note that the negotiating approach at the Third United Nations

142 Commentary on Conclusion 16 in Paragraph 5; see, however, the complaint by the USA that particular
customary rules outside the context of geographical connection have not emerged in practice:
Comments from the United States, UN Doc.A/CN.4/716, p. 59. Reservations held by the Czech Republic
on “non-localized” particular customary international law are noted ibid., p. 57.
143 See, eg Stephen Vasciannie,“Part XI of the Law of the Sea Convention and Third States: Some General
Observations,” Cambridge Law Journal,Vol. 48 (1989), p. 85; James B. Morrell, The Law of the Sea: The
1982 Treaty and its Rejection by the United States (1992), pp. 155-189.
144 The Montego Bay Convention has 168 parties (167 States and the European Union): United
Nations Treaty Collection, treaties.un.org/Pages/ViewDetails111.aspx?src=TREATY&mtdsg_no=XXI-
6&chapter=21&Temp=mtdsg3&clang=_en. Article 4 of the Agreement relating to the Implementation
of Part XI of the United Nations Convention on the Law of the Sea (the “Implementation
Agreement”) indicates that ratification of the Convention also represents consent to be bound by
the Implementation Agreement. 167 States out of an approximate total of 194 States would arguably
satisfy the criterion of widespread participation in the Convention.
145 The 167 States seem to be a representative cross-section of States, subject to possible argument about
whether the group is representative notwithstanding the absence of the USA.
146 For example, the provisions in Articles 136, 137 and 138 of the Convention are expressly addressed
to “States” and not “States Parties.” These provisions pertain generally to the legal status of the deep
seabed area as the Common Heritage of Mankind. They may be contrasted with other provisions in
Part XI, such as Articles 156 and 157, which concern institutional arrangements. The latter provisions
are addressed to “States Parties”, thus suggesting that the States drafting Part XI contemplated that
at least some parts of the regime would be binding on both parties and non-parties (as part of an
objective regime), while other parts would apply only to State Parties. This distinction goes to the
issue of the opinio juris of the negotiating States at the UNCLOS III.
147 For the view that the status of the deep seabed even before the entry into force of the Montego Bay
Convention was to be determined by reference to Resolution 2749 and other General Assembly
Resolutions, see, eg, Letter, dated 23 April 1979 from a Group of Legal Experts from the Third World
(including five members of the ILC), reprinted in UNCLOS III, Official Records,Vol. XI, p. 80.

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Conference on the Law of the Sea,148 the fact that States sought to treat the Convention as
a single package149 without the possibility of reservations,150 and the limited state practice
on deep seabed exploration and mining outside the terms of the Convention, also support
customary law status for Part XI. In this situation, there are elements of state practice and
opinio juris in favour of a custom: widespread and representative practice, pertinent
diplomatic correspondence, and numerous assertions of state positions are all in place.
And yet, the customary international law status of the regime of the deep seabed remains
subject to uncertainty. The United States has maintained that the terms of Part XI of the
Montego Bay Convention do not represent customary international law. The arguments
presented in support of the American position include the idea that the United States
has persistently objected to the incorporation of Part XI in customary law. Simultaneously,
the United States may argue that, as a major mining nation and a significant consumer of
the metals that may come to be exploited from the deep seabed, it is a specially affected
State whose interests are to be given particular weight in the assessment of customary
international law. The United States has also argued that deep seabed mining is subject
to the customary international law incorporated in the High Seas Convention,151 a treaty
which self-referentially indicates that it has codified customary law.With respect to General
Assembly Resolution 2749, the American position is that resolutions are not automatically
binding, and some of the States which voted in support of this resolution did not do so
with a sense of legal obligation.152 Also, the fact that there has been limited participation in
deep seabed mining activities outside the terms of Part XI is explained by technological

148 Up to the final session of the UNCLOS III, the main method of negotiating the Convention was to seek
consensus; it was arguable, therefore, that various States had given their consent to some items in Part
XI, such as Article 136 on the Common Heritage of Mankind, by supporting the consensus on those
items.
149 The so-called “package deal” approach implied that a State could not accept some provisions in the
Convention but reject others. The Convention was to be accepted as a single document. It may be
difficult to reconcile the package deal approach with the standard rules of customary international
law, for the ICJ has been prepared to recognize some parts of the Montego Bay Convention as
customary law, without holding that all rules in the Convention were to be treated as customary law.
For comment by the USA on the package deal argument, see, e.g., Statement by Thomas R. Pickering
to the UN General Assembly on November 20, 1989:“the United States does not view the call upon all
States to safeguard the unity of the Convention as a limitation on either the right or duty of all States to
act in accordance with those portions of the Convention which reflect customary international law:”
Office of the Legal Adviser, US Department of State, Digest of United States Practice in International
Law, 1989-1990, p. 425 at p. 427.
150 Article 309 of the Convention indicates that no reservations or exceptions may be made unless
expressly permitted by other articles in the Convention. For the ICJ In the North Sea Continental Shelf
Cases, the fact that States were empowered to make reservations to Article 6 of the Continental Shelf
Convention seemed to deny the norm-creating character of the provision: para. 72.
151 See, eg, Statement by the USA in UNCLOS III, Official Records, Vol. IX, p.104; Statement by the USA in
response to Statement by the Chairman of the Group of 77 , UN Doc.A/CONF. 62/89, ibid.,Vol. XII, p. 111.
152 For the United States’ position that it conditioned its support for aspects of Resolution 2749 on the
completion of a regime that would be established on terms acceptable to the United States: see, eg,
Thomas A. Clingan Jr.,“The United States and the Law of the Sea Conference,” in Guilo Pontecorvo
(ed.), The New Order of the Oceans: The Advent of a Managed Environment (1986), p. 219 at p. 231.

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considerations,153 and not by the view that seabed activities may occur only in accordance
with the regime in Part XI.154
Both sets of arguments have strengths and weaknesses, a fact which tends to highlight the
uncertainty often associated with the identification of customary international law. On the
deep seabed issue, developing countries have asserted that major treaty provisions reflect
customary law today, while the United States denies this. In another situation, relating to
bilateral investment treaties, the contentions are broadly reversed. More specifically, in the
case of bilateral investment treaties, the United States and some other developed countries
have actively promoted the execution of treaties which incorporate terms concerning
the treatment of foreign investment that reflect developed country perspectives. Today,
there are more than 2,350 such treaties in force;155 the vast majority of these repeat the
same treatment standards and provisions concerning Western rules on compensation for
expropriation and dispute settlement procedures, among other items. This proliferation of
treaties asserting similar provisions represents significant state practice, and may also be
said to indicate the opinio juris of various countries.
Developing countries, as parties to many of these bilateral treaties, have themselves
contributed to state practice in this area. On the other hand, these countries have traditionally
argued in negotiations at the United Nations,and through United Nations Resolutions,that the
Western standards on investment do not reflect customary international law. On the contrary,
therefore, developing States may suggest that their practice is not sufficient to give bilateral
investment treaties binding force in custom: the requisite opinio juris is not present.156

IX. Conclusion
The ILC has completed a major project that should enhance state understanding of
customary international law. Most of the conclusions in the ILC report rely somewhat
heavily on the jurisprudence of the International Court of Justice. This is not surprising:
the ILC mandate in undertaking this project concerned elucidation of the ways in which
practitioners and courts in national systems and elsewhere may identify customary

153 This viewpoint may be distilled from, for example, the Statement by then US Secretary of State Hillary
Rodham Clinton testifying before the Foreign Relations Committee of the US Senate on the Law of
the Sea, May 23, 2012, Office of the Legal Adviser, United States Department of State, Digest of United
States Practice in International Law 2012, p. 563 at p. 564.
154 In arguing for US ratification of the Montego Bay Convention, Secretary of State Clinton said that as
long as the USA remained outside the Convention, US companies were left “with two bad choices
– either take their deep sea mining business to another country or give up on the idea:” ibid., p. 564.
This could possibly be taken as a concession that the regime in Part XI is the only avenue for access
to resources of the deep seabed. As such, it could represent evidence of a shift in the opinio juris
of the USA. The statement, however, was preceded by an acknowledgment that mining companies
wished to have secure title to the resources. It may, therefore, have been simply an acknowledgment
that deep seabed mining companies would not be comfortable working with the uncertainty of a
title pursuant to customary international law.
155 UNCTAD, Investment Policy Hub, International Investment Agreements Navigator, investmentpolicy.
unctad.org/international-investment-agreements, last accessed August 8, 2019.
156 See further, for example, Vasciannie, “The Fair and Equitable Treatment Standard in International
Investment Law and Practice,” British Year Book of International Law,Vol. 70 (1999), p. 99 at pp. 157-162.

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international law.With this mandate, the ILC may have opted to focus on the lex lata and to
have erred on the side of codification over progressive development of the law.
The ILC has played a valuable role in clarifying the law. At an early stage of the project,
the ILC sought state comments on instances of practice involving particular countries.
Some responses suggested that certain States were reluctant to elaborate on their
understanding of the nature and function of customary law in international relations.
Also, in some responses to the various iterations of the ILC’s Draft Conclusions, States have
acknowledged the significant value of the Commission’s guidance. To be sure, this is not
to suggest that the law in this area is now free from uncertainty. In a number of respects,
the main concepts relating to customary international law continue to raise unanswered
questions, and in practice States will find themselves grappling with a mass of evidence
in seeking to identify the scope and content of putative rules of custom. Finally, in seeking
to identify customary international law, States may come to the view that rules of custom
are subject to wide judicial discretion: the law in this area inevitably lends itself to
serious contestation.

Selected Bibliography
Books:
International Law and Selected Human Rights in Jamaica (2002) (Norman Manley Law
School)
Land-locked and Geographically Disadvantaged in the International Law of the Sea (1990)
(Oxford Univ. Press).
Arguments and Facts: Caribbean Public Law, Governance, Economy and Society (2016)
(New Caribbean Publishers)
The International Law Workbook – Questions and Materials for Students of Public
International Law (2016) (Self-published)

Articles:
“Bilateral Investment Treaties and Civil Strife: The AAPL/Sri Lanka Arbitration”, Netherlands
International Law Review,Vol. 39 (1992/3), pp. 332-354.
“Land-locked and Geographically Disadvantaged States and the Question of the Outer
Limit of the Continental Shelf”, The British Year Book of International Law, Vol. 58 (1987),
pp. 271-302.
“The Constitution and the Rule of Law: Some Recent Developments in Jamaica.”
Commonwealth Law Bulletin,Vol. 35 (2009), pp. 55-67.
“The Namibian Foreign Investments Act: Balancing Interests in the New Concessionary
Era”, ICSID Review: Foreign Investment Law Journal,Vol. 7 (1992), pp. 114-140.
“The Caribbean Court of Justice: The Next Steps.” West Indian Law Journal, Vol. 35 (2010),
pp. 111-125
“Part XI of the Law of the Sea Convention and Third States: Some General Observations.”
The Cambridge Law Journal,Vol. 48, No. 1 (1989), pp. 85-97.

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“The Fair and Equitable Treatment Standard in International Investment Law and Practice.”
The British Year Book of International Law,Vol. 70 (1999), pp. 99-164.
“The Inter-American Commission on Human Rights: Reform and the Question of
Universality.” ILSA Journal of International and Comparative Law,Vol. 21 (2015), pp. 409-423.
“Foreign Policy Options for CARICOM: An Analytical Review”, in Kenneth Hall and Myrtle
Chuck-A-Sang (eds.), The Integrationist: CARICOM Options Towards Full Integration into the
World Economy (2006), pp. 35-88.
“Security, Terrorism and International Law: A Sceptical Comment”, in Ivelaw Griffith (ed.),
Caribbean Security in the Age of Terror (2004), pp. 52-71.
“Us and Them: International Law in a Time of Trial” (Inaugural UWI Professorial
Lecture,Faculty of Social Sciences, UWI, Mona, 2004), 91 pp.
“The International Law Commission: A Caribbean Perspective”, in Miha Pogacnik (ed.)
Challenges of Contemporary International Law and International Relations: Liber Amicorum
in Honour of Ernest Petric (2011), pp. 385-404

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