The purpose of this essay is to assess the impact of the behaviour of a State, which contrary to a rule of customary international law, on the existence of rule of customary international law, in terms of whether it undermines the existence of that rule or strengthens it. To be able to do this, it is expedient that the following issues are addressed: What is Customary International Law? What are rules of customary international law? Contrary state behavior.
Customary International Law is one of the major sources of International law and is described in Article 38(1)(b) of the Statute of the International Court of Justice, 1946, as "general practice accepted as law." According to the Legal Information Institute of the Cornell Law School, "Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. Customary international law results from a general and consistent practice of states that they follow from a sense of legal obligation." It was also defined by Judge Read in Fisheries (UK v Norway) (1951), as the generalization of the practice of States.
Table of Contents
1.0 INTRODUCTION
1.1 Purpose of Essay
2.0 WHAT IS CUSTOMARY INTERNATIONAL LAW
2.1 Elements of Customary International Law
2.2 The Traditional and Modern Approach
3.0 RULES OF CUSTOMARY INTERNATIONAL LAW
4.0 CONTRARY STATE ACTIONS
4.1 Evidence of Acquiescence
4.2 Contrary conduct proves the existence of Customary International Law
4.3 Contrary conduct gives rise to new rules of Customary International Law
4.4 Contrary conduct pleaded as an exception proves the existence of Customary International Law
4.5 Contrary State Conduct v. Jus Cogens (Peremptory Norms)
5.0 CONCLUSION
Objectives and Topics
The primary objective of this essay is to critically analyze whether state behavior that deviates from existing rules of customary international law serves to undermine those rules or, conversely, contributes to their evolution and strengthening.
- Foundational definition and elements of customary international law.
- Distinction between traditional and modern approaches to international legal norms.
- Analysis of state conduct that appears to contradict established customary rules.
- The role of acquiescence and judicial interpretation in proving the existence of customary law.
- The relationship between contrary state practice and the emergence of new legal norms.
- Interaction between state behavior and peremptory norms (Jus Cogens).
Excerpt from the Book
4.2 - Contrary conduct proves the existence of Customary International Law
The situation where a State conducts itself in a particular way and other states protest against that conduct or activity is capable of and actually does prove the existence of a particular rule of Customary International Law, thereby “implicitly affirm the rule in question.” (Lowe, 2007) The ICJ affirmed this position in the case of Nicaragua v. United States of America (1986), in its advisory opinions and orders concerning military and paramilitary activities of the United States of America (USA) in and against the territory of Nicaragua. Lowe (2007) summarizes this position well, in saying that “breaches of international law may, paradoxically, strengthen the law rather than weaken it, if the offending State is condemned and isolated.”
Summary of Chapters
1.0 INTRODUCTION: This chapter introduces the status of Customary International Law as a primary source of international law and outlines the research objective regarding state behavior.
2.0 WHAT IS CUSTOMARY INTERNATIONAL LAW: The section defines customary international law through its material and psychological elements and discusses the debate between traditional and modern interpretative approaches.
3.0 RULES OF CUSTOMARY INTERNATIONAL LAW: This chapter provides examples of established international norms, such as the prohibition of force and sovereign rights, as identified in landmark ICJ cases.
4.0 CONTRARY STATE ACTIONS: This core section examines how deviations from established rules are handled, analyzing concepts like acquiescence, legal exceptions, and the interaction with peremptory norms.
5.0 CONCLUSION: The final chapter synthesizes the argument that contrary state behavior does not invalidate customary rules but rather acts as a mechanism for legal evolution and mutation.
Keywords
Customary International Law, State Practice, Opinio Juris, International Court of Justice, Jus Cogens, Peremptory Norms, Acquiescence, Sovereignty, International Legal Theory, State Conduct, Legal Evolution, Reparation, Nicaragua Case, Territorial Integrity, Diplomatic Immunity.
Frequently Asked Questions
What is the core subject of this paper?
The paper examines the impact of state behavior that contradicts established rules of customary international law, specifically whether such actions undermine or potentially strengthen the legal rules in question.
What are the central themes discussed?
The central themes include the nature of customary international law, the influence of state practice, the role of protests and acquiescence, and the development of new legal norms through state interaction.
What is the primary research objective?
The objective is to assess whether inconsistent state behavior leads to the erosion of customary international law or functions as a process of mutation that sustains and evolves the law.
Which scientific methodology is employed?
The work utilizes a qualitative, doctrinal legal analysis, drawing upon international jurisprudence, ICJ advisory opinions, and academic commentary from legal scholars.
What is addressed in the main body of the work?
The main body focuses on the theoretical definition of customary law, the evidence required to prove its existence (material and psychological elements), and the detailed analysis of how contrary state actions are processed within the international legal framework.
What key terms characterize the study?
The study is characterized by terms such as Opinio Juris, state practice, Jus Cogens, customary international law, and international accountability.
How does the author define the relationship between "contrary conduct" and "legal change"?
The author argues that when states protest against contrary conduct, it often serves to implicitly affirm the original rule, while persistent departures may lead to the evolution or mutation of a new rule rather than the abandonment of international legal principles.
How does the concept of Jus Cogens interact with state behavior?
Jus Cogens norms are presented as peremptory principles from which no derogation is permitted, meaning that even contrary state behavior cannot override these fundamental norms.
What role does the Nicaragua case play in the argument?
The Nicaragua case is used as a primary reference to demonstrate that even when breaches of international law occur, they can paradoxically strengthen the law if the offending state is condemned and isolated by the international community.
- Quote paper
- Ogochukwu C. Nweke (Author), 2020, Does state behavior contrary to a rule of customary international law undermine the existence of that rule?, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/981488
