ILA Report On Formation of Customary International Law

INTERNATIONAL LAW ASSOCIATION
LONDON CONFERENCE (2000)

COMMITTEE ON FORMATION OF CUSTOMARY (GENERAL)
INTERNATIONAL LAW
Members of the Committee:
Professor M. H. Mendelson, Q.C. (UK): Chairman

Professor Rein Mullerson (Estonia): Rapporteur
Professor Kadar Asmal (South Africa) Dr Kamal Hossain (Bangladesh)
Professor Smilja Avramov (Yugoslavia) Ms Basanti Mitra (India)
Dr Kaare Bangert (Denmark) Mr Davis R Robinson (USA)
Professor Borut Bohte (Slovenia) Professor Davorin Rudolf (Croatia)
Professor Maarten Bos (Netherlands) Professor Meinhard Schroder (Germany)
Professor Genevieve Burdeau (France) Alternate: Professor Rudolf Geiger
Professor Francesco Capotorti (Italy) Professor Guido F S Soares (Brazil)
Alternate: Professor Luigi Ferrari Professor Yuichi Takano (Japan)
Bravo Alternate: Professor Shinya Murase
Professor Hilary Charlesworth (Australia) Dr Mark E Villiger (Switzerland)
Professor B Cheng (UK) Professor Maureen Williams
Dr G M Danilenko (Russia) (HQ/Argentina)
Professor Ingrid Detter (Sweden) Professor Karol Wolfke (Poland)
Professor Dencho Georgiev (Bulgaria)
FINAL REPORT OF THE COMMITTEE
STATEMENT OF PRINCIPLES APPLICABLE TO THE

FORMATION OF GENERAL CUSTOMARY INTERNATIONAL
LAW*
INTRODUCTION
1. At the Paris Conference in 1984 a workshop on customary international law
was held, and following this the Executive Council established the present com-
mittee in 1985 under the Chairmanship of Prof. Karl Zemanek, with Prof.
Maurice Mendelson Q.C. (as he now is) as Rapporteur. The then Rapporteur’s
proposed programme of work was adopted by the Committee and endorsed by the
Warsaw Conference in 1988.1 In 1993 Prof. Zemanek resigned as Chairman, and
his place was taken by Prof. Mendelson, with Prof. Rein Mullerson taking his
* As amended at the London Conference.
1 See Report of the 63rd Conference, 936, 940.
2 INTERNATIONAL LAW ASSOCIATION
place as Rapporteur. The Committee has produced six Interim Reports in all.2 The
5th and 6th Interim Reports was prepared and agreed in the period between the last
Conference (1998) and the forthcoming one in July 2000. The 5th dealt with the
role of treaties in the formation of customary international law, and the 6th with
the role in that process of resolutions of the United Nations and of international
conferences. Since their substance has been embodied in Parts IV and V of the
present Final Report, they have not been reproduced here. Interim Reports 1, 2, 4,
5 & 6 were drafted by Prof. Mendelson (nos. 4 & 5 in consultation with Professor
Mullerson, and no. 6 on the basis of an earlier version by him): no. 3 was prepared
by Prof. Mullerson on the basis of a published paper by Prof. Mendelson mem-
bers responses to a questionnaire based on it. The present Final Report was draft-
ed by Prof. Mendelson in consultation with Prof. Mullerson3. The drafts of each
of these Reports (including the present one) were circulated to all members of the
Committee and revised in the light of their comments. Interim Reports 1-4 were
presented to, and approved by, the Conferences to which they were presented. At
the Taipei Conference in 1998, the Association approved the proposal of the
Chairman that an attempt be made to formulate a statement of the law in the form
of articles and a Commentary (as was done in the 4th Interim Report presented to
that Conference). The present Report has also taken into account, as appropriate,
comments and suggestions made about the Committee’s Interim Reports at the
Conferences to which they have been presented.
2. Despite the fact that customary law is one of the two principal sources of
international law (the other being treaty law), there are inherent serious diffi-
culties in setting out the rules on this subject, for a number of reasons. First - a
point often overlooked by those vexed or confused by the relative imprecision
of this subject - customary law is by its very nature the result of an informal
process of rule-creation, so that the degree of precision found in more formal
processes of law-making is not to be expected here.4 Secondly, some of the
issues concerned touch on controversial questions of deep legal theory and ide-
ology. For instance, those who regard State sovereignty and sovereign will as
the very roots of international law are more inclined to look for consent (mani-
2 The 1st and 2nd were submitted to the Warsaw Conference in 1988. There was then a period
during which little happened, as the then Chairman, Prof. Zemanek, wished members of the
Committee besides the Rapporteur to produce reports: see e.g. discussion in Report of the 63rd
Conference (Warsaw 1988), 960. Unfortunately, they did not do so. The 3rd Report was submitted
to the Helsinki Conference in 1996, and the 4th to the Taipei Conference in 1998.
3 Part III was initially drafted by Prof. Mullerson and redrafted by Prof. Mendelson.
4 See further Mendelson, “The Formation of Customary International Law”, 272 Hague Academy
of International Law, Collected Courses (1998), 155-410, esp. at 172-76. The Chairman wishes to
explain what might appear to be an immodestly frequent citation of this work in the present Report.
The reason is that many of the ideas set out here are more fully expounded in that course of lec-
tures, together with copious citation of the precedents and the literature. Without reference to it, this
Report would have to be considerably longer than it already is. Also, that contribution was one of
the most up-to-date available at the time of preparing this Report.
COMMITTEE ON FORMATION OF CUSTOMARY LAW 3
fest or imputed) in the customary process than those who take a less State-cen-
tred standpoint. Thirdly, some issues have important political implications. To
take but the best-known instance, the question whether customary international
law can be made by resolutions of the UN General Assembly is of considerable
political significance, given that, in the Assembly, developed countries are con-
siderably outnumbered by developing ones. Fourthly, although much has been
written by scholars on the subject, there have been relatively few authoritative
determinations. So far as concerns international courts and tribunals, although
there have been some pronouncements on the rules for the formation of cus-
tomary law, these have tended not to be systematic but very much incidental to
the substantive questions which happened to be in issue. For this reason, many
questions which concern us here have been left unanswered. Similarly, States
(and other international actors) tend not to address themselves to the principles
of customary law-formation in the abstract; and though politicians and officials
sometimes make pronouncements on this subject, it is not always clear that this
represents the considered position of their State. An added difficulty is that of
finding the material: most States do not publish digests of their practice in inter-
national law, and even those that do rarely classify much under the rubric of
sources of law, as opposed to substantive topics. (In this connection, it was for-
tunate that the Committee comprised, not only several of the foremost writers
on the subject in the world, but also members with considerable professional
experience of the practice of States.)
3. A further complication is an evolution in the ways in which customary

law is created. Until the latter part of the 19th century, much of diplomacy was
bilateral and secret, and communications were slow. Gradually, however, some
(but not all) diplomacy came to be conducted multilaterally and in public, and
communication has speeded up to the point where it is technically possible for
it to be instantaneous. So the existence of, in particular, international organiza-
tions, multilateral treaty-making conferences and their products has also con-
tributed to the process in novel ways, as has the fact that the adoption of a posi-
tion by a State can be communicated instantaneously around the world. Thus,
quite a few of the relatively new customary rules - in the fields of human rights,
the environment, maritime jurisdiction, and State immunity, for example - have
been at least partly influenced by the existence of international organizations,
conferences and treaties, and they have tended to develop more rapidly than was
the case in the past. This is not to say that the fundamentals of customary law-
creation have been entirely overturned: but it is desirable to be aware of the
changes and to take them into account as appropriate.
4. The Sections (and accompanying Commentary) which follow are not

intended as a draft convention. They are, rather, a statement of the relevant rules
and principles, as the Committee understands them. It seems that there has been
no previous systematic attempt to set them out in the form of a sort of code -
perhaps understandably, in view of the difficulties just alluded to. However, it

was felt that what would be most useful was not an academic treatise (even if
such a thing could be usefully created by a committee), but, rather, some prac-
tical guidance for those called upon to apply or advise on the law, as well as for
scholars and students. Many have a need for relatively concise and clear guide-
lines on a matter which often causes considerable perplexity, sometimes
because those concerned may not be familiar with international law, and some-
times for reasons connected with the difficulty of the subject. Given that the
text of these Sections and accompanying Commentary has been drafted by a
committee, it is not to be expected that every word fully reflects the views of
each and every member - and a fortiori those of each and every member of the
Association, if the Conference adopts them with or without amendment. But the
Committee ventures to think that it has achieved a considerably greater measure
of consensus than could have been anticipated when this exercise began - part-
ly by concentrating on quite precise questions and thereby avoiding at least
some of the “dialogue of the deaf” which has bedevilled discussion in the past.
5. Another consequence of this Statement not being a draft convention or

code is that a certain amount of overlap or repetition has been regarded as
acceptable, especially where it helps to elucidate a very complex subject. It
should be emphasised that the Sections that follow have to be read in the light
of the Comments which accompany them. The Comments both elucidate their
meaning and give an indication of the circumstances in which the principles
concerned apply.
6. A word on methodology. In attempting to ascertain the law relating to the
formation of customary international law, an inductive approach has been
used.5 That is to say, the Committee considered that the rules about the sources
of international law, and specifically this source, are to be found in the practice
of States.6 So, for example, the question whether there is a “persistent objector”
rule7 is to be determined by reference to the practice of States, not to an a pri-
ori method of reasoning. Extensive reference has also been made here to the
pronouncements of international tribunals - and especially of the International
Court of Justice and its predecessor the Permanent Court of International
Justice, with the caveat that they do not constitute formally binding precedents.
Members of the Committee have also drawn on their own experience of how
5 Cf. Schwarzenberger, The Inductive Approach to International Law (1965).
6 This is not, as it might at first seem, circular: one is not simply using customary law to prove
customary law. Essentially, this Statement’s approach is that, in the absence of a proper written con-
stitution, the test of what constitute the “sources” of international law, and of the specific rules
about the operation of each of them, depends on what the key participants in the system - States -
recognize as the processes by which law is made. These “secondary”, systemic rules of recognition
etc. are not the same as the substantive rules created by one of the processes so recognized - cus-
tom. Cf. Hart, The Concept of Law (1961).
7 See below, Section 15.
States go about identifying the law.8 They have relied on writers only for evi-
dence of what the practice is and, on matters of interpretation, only so far as the
arguments deployed appear to be supported by the evidence and otherwise well
reasoned. The principal - and in some respects the only - treaty text on this sub-
ject, the Statute of the International Court of Justice, would have been very
helpful were the relevant provision not so laconic and even, in the view of
many, badly drafted. Article 38(1) provides in relevant part as follows: “The
Court, whose function is to decide according to international law such disputes
as are submitted to it, shall apply ... (b) international custom, as evidence of a
general practice accepted as law”.9
7. In studying the customary process, it is necessary to be aware of the issue

of the observational standpoint. By this reference is not mainly made to the
(obvious) need to identify for oneself and for others one’s own assumptions and
goals.10 Rather, the suggestion is that different functions may lead the persons
performing them to adopt a somewhat different attitude to the sources, includ-
ing this particular one. For example, whereas a judge has essentially to deter-
mine the law impartially, as it is at the time of judgment, a government legal
adviser may well feel called upon also to assess how matters are likely to devel-
op in the future, and even to try to assist or retard that development in accor-
dance with the national interest.11
8. As its title indicates, the Committee’s remit is limited, and it is important

to note what it has considered to be outside it. First, strictly speaking it is con-
cerned only with the formation of rules of customary international law, not with
their consolidation, invocation, application, amendment, termination, or other
parts of the “constitutive process”.12 In practice, however, the need for clarity
of exposition has at times obliged it to enter these other domains too. Secondly,
the Committee is concerned only with general customary law: that is to say,
with the law which applies to all States.13 Accordingly, it has not in general
explored particular customary law, of which regional and local law are the best-
8 Much of this takes place on a basis of confidentiality and official secrecy, so that it has not
always been possible to cite chapter and verse.
9 See further, Appendix to the 2nd Report of the Rapporteur (annexed to 1st Interim Report of the
Committee), Report of the 63rd Conference (1988), 935, 953.
10 Cf. Schwarzenberger, op. cit.; McDougal, Lasswell & Reisman, “Theories about International
Law: Prologue to a Configurative Jurisprudence”, 8 Virginia Journal of International Law (1968),
189, reprinted in McDougal & Reisman, International Law Essays (1981), 43.
11 See Appendix to the 1st Report of the Rapporteur (Mendelson), “Formation of International
Law and the Observational Standpoint” (1986), Annex to the 1st Interim Report of the Committee,
in Report of 63rd Conference (Warsaw 1988), 935, 941.
12 Cf. McDougal, Lasswell & Reisman, “The World Process of Authoritative Decision”, in
McDougal & Reisman, International Law Essays, 191 - a revised version of an earlier paper.
13 Except for those who have been able to opt out under the “persistent objector” rule. See below,
Sections 1 & 15.
known manifestations - except where this can throw light on the process by
which general law is formed. Thirdly, the Committee considered it to be beyond
its remit to investigate special types of unwritten international law, such as “fun-
damental” or “constitutional” principles of international law, ius cogens, erga
omnes norms, and so on. Some consider these to constitute categories of unwrit-
ten law distinct from customary law, whilst others regard them as species of
customary law. But in any case, they clearly have at least some distinctive char-
acteristics which merit separate examination on another occasion.14
9. The International Court of Justice has on several occasion underlined the

necessity of two elements in customary law. For example, in the North Sea
Continental Shelf cases it cited the “Lotus” case15 and, referring to the assertion
by Denmark and the Netherlands that certain delimitation agreements by non-
parties to the Geneva Convention on the Continental Shelf 1958 evidenced the
existence of a new rule of customary law regarding delimitation, observed: 16
Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule
requiring it. The need for such a belief, i.e. the existence of a subjective
element [emphasis added], is implicit in the very notion of the opinio juris
sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even
habitual character of the acts is not in itself enough. There are many inter-
national acts, e.g., in the field of ceremonial and protocol, which are per-
formed almost invariably, but which are motivated only by considerations
of courtesy, convenience or tradition, and not by any sense of legal duty.
In the Continental Shelf (Libya v. Malta) case the Court said that “It 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,...”17
14 The title of the topic originally given to this Committee was “the formation of customary (gen-
eral) international law”. However, the Committee felt that this formulation was both unusual and
confusing, and so the present Statement refers to “general customary international law”.
Detter considers that there are very few rules of unwritten general law which are truly based on cus-
tom. Many, for instance, are the result of what she calls “sociological necessity” and she thinks it
possible that custom is only relevant if there is a territorial connection: see her The Concept of
International Law (1994) and her comments in Report of the 63rd Conference (1988), 964-5.
However, the majority of members of the Committee would not go so far. See further, Appendix to
the 2nd Report of the Rapporteur (annexed to 1st Interim Report of the Committee), Report of the
63rd Conference (1988), 935, 952-53.
15 (1927) PCIJ, Ser. A, No. 10, p. 4 at p. 28. This case is considered further in paragraph (a) of the
Commentary to Section 17(iv).
16 ICJ Rep.1969, p. 3 at p. 44,( para. 77). See also p. 42 (para. 71).
17 Ibid. 1985, p. 13 at 29-30 (para. 27).
10. Many writers, too, have asserted that customary law comprises two ele-
ments, the “objective” or “material” element - State practice - on the one hand,
and on the other hand, the “subjective” element, often referred to as opinio juris
sive necessitatis (or opinio juris for short). The subjective element usually seen
as either the consent of States, or their belief in the legally permissible or (as it
may be) obligatory character of the conduct in question. In using this framework
of analysis, the writers frequently rely on the pronouncements of the ICJ or its
predecessor, such as those just quoted, which appear to impose this two-fold
requirement. The alleged necessity for the “subjective” element will be explored
in Part III. But it should be noted at the outset that a number of misconceptions
have been based on what may well be a faulty reading of these pronouncements.
(a) Statements such as that quoted above from the North Sea Continental
Shelf cases have been taken out of context: in Part III the position is taken that
it is only sometimes necessary to establish the separate existence of a subjective
element. (And even scholars who assert the need for it often concede that does
not have to be proved if there is practice of sufficient uniformity, density and
representativeness).
(b) Part of the confusion may be caused by a failure to distinguish between

different stages in the life of a customary rule. Once a customary rule has
become established, States will naturally have a belief in its existence: but this
does not necessarily prove that the subjective element needs to be present dur-
ing the formation of the rule.
(c) The Court has not in fact said in so many words that just because there
are (allegedly) distinct elements in customary law the same conduct cannot
manifest both. It is in fact often difficult or even impossible to disentangle the
two elements. Haggenmacher has gone so far as to say:18
En vérité, aucun des deux éléments n’existe comme tel dans les faits
historiques censés être à la base d’une règle coutumiére concrète. ... Les
deux prétendus éléments n’ont en réalité aucune individualité propre; ils
se trouvent inextricablement mêlés au sein d’une “pratique” unitaire.
Cette pratique forme pour ainsi dire un seul “élément” complexe, fait
d’aspects “matériels” et “psychologiques”.
This gestalt approach may perhaps somewhat oversimplify a more com-

plex reality, but undoubtedly it is often difficult or impossible to separate
the two elements.
18 “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale”
90 RGDIP (1986), 5,114.
(d) Confusion has also been created by a failure to distinguish between man-
ifestations of the subjective element (will or belief) on the part of individual
States, on the one hand, and of the generality of States, on the other.
However, both out of deference to the pronouncements of the Court and the
opinions of the majority of writers, and also for convenience of exposition, this
Statement deals with each element separately.
11. Part I deals with definitions. Part II deals with the “objective” element,
and Part III with the “subjective”. Part IV concerns the role of treaties in the for-
mation of customary international law, and Part V the contribution of resolu-
tions of the United Nations General Assembly and of resolutions of interna-
tional conferences.
PART I: DEFINITIONS
1. Working definition
(i) Subject to the Sections which follow, a rule of customary inter-
national law is one which is created and sustained by the constant and
uniform practice of States and other subjects of international law in or
impinging upon their international legal relations, in circumstances
which give rise to a legitimate expectation of similar conduct in the
future.19
(ii) If a sufficiently extensive and representative number of States
participate in such a practice in a consistent manner, the resulting rule
is one of “general customary international law”. Subject to Section 15,
such a rule is binding on all States.
(iii) Where a rule of general customary international law exists, for
any particular State to be bound by that rule it is not necessary to prove
either that State’s consent to it or its belief in the rule’s obligatory or
(as the case may be) permissive character.
Commentary.
(a) Section 1 is not meant to be a formal, prescriptive definition.20 In partic-
ular, as the opening words indicate, it has to be understood in the light of this
Statement as a whole. Nevertheless, it was thought that it would be useful to
provide a working or introductory definition for users of this Statement, espe-
19 This definition is adapted from that of Mendelson, 272 Collected Courses, 188, 399.
20 Cf. Javolenus, onmis definitio in iure civili periculosa est, parum est enim ut non subverti pos-
sit -“every definition in the civil law is dangerous, for there is hardly one which cannot be under-
mined”: Digest [of Justinian], 50.17. 202.
cially those who had little or no previous experience of the concept of custom-
ary international law.
(b) Certain features of this working definition should be mentioned.
(1) It underlines that it is the actions of States in their international

legal relations which give rise to rules of customary international law. For
instance, there might be a great uniformity in some parts of domestic law
- such as constitutional or corporate law - without the rules in question
becoming part of public international law. Whether a matter concerns a
State’s international legal relations, or is solely a matter of domestic juris-
diction, depends on the stage of development of international law and
relations at the time: see e.g. Nationality Decrees in Tunis and Morocco
(1923) PCIJ Ser. B, No. 4, p. 24. There may also be regular conduct by
States which does not contribute to the formation of customary law
because it does not take place in the context of their international legal
relations: see Section 17.
(2) It indicates that subjects of international law other than States can
contribute to the formation of customary law: for instance, international
organizations. This is a subject to which this Statement reverts in Section 11.
(3) It indicates that the customary law process is a continuing one: it

does not stop when a rule has emerged.21
(4) The definition in (i) and (ii) does not expressly say anything about
the so-called subjective element in customary law - the element of belief
or consent - though there is an indirect allusion to this in the words “in cir-
cumstances which give rise to a legitimate expectation22 of similar con-
duct in the future”. Although traditional formulations often describe cus-
tomary international law as a combination of the “objective” (or “materi-
al”) element - State practice - and the “subjective” element (opinio juris
sive necessitatis), it will be seen later that, in the opinion of the
Committee, this would be an over-simplification. As explained in Part III,
21 Although this Statement is concerned with the formation of customary international law, it is
worth noting that conforming practice after the rule has emerged helps to strengthen it (and is there-
by both constitutive of the rule and declaratory - evidence - of it), whilst contrary practice can
undermine and, if sufficiently constant and widespread, destroy an existing customary rule. It is not
entirely possible or desirable to draw too sharp a distinction between the formation of customary
law, on the one hand, and its existence after it has come into being, on the other hand.
22 The use of this phrase also has echoes of the theory that the explanation of (the binding force
of) all of the sources of international law may lie in the fact that they are processes whereby legit-
imate expectations are engendered: see Mendelson, 272 Collected Courses, 183-86. However, a
consideration of the grundnorm of international law and of like questions is beyond the scope of
this study, and it is therefore not proposed to dwell on the point here.
it is not usually necessary to demonstrate the existence of the subjective

element before a customary rule can be said to have come into being.
There are, however, circumstances where it is necessary, and the
Committee also took the view that assent to a rule can create a binding
obligation. But these circumstances are so varied that they need to be dealt
with specifically, rather than in a working definition. Secondly, in the con-
text of the formation of general customary law (as opposed to evidencing
rules which have already come into being), the main function of the sub-
jective element is to indicate what practice counts (or, more precisely,
does not count) towards the formation of a customary rule. See especial-
ly Section 17.
(5) The definition does not require the State against whom the custom-
ary rule is being invoked to be one of the States who have actively partic-
ipated in it previously. See Section 14(ii). Section 1(iii) is, in a sense,
inserted out of abundance of caution: it is implicit in the statement in (ii)
that a general customary rule is binding on all States, but it stresses one
aspect of that principle.
(c) It is often helpful to think of customary rules as emerging, in the typical
case, from a process of express or implied claim and response - an insight which
comes from Myres S. McDougal and his associates. Thus, if State A expressly
claims the right to exclude foreign warships from passing through its territorial
sea, and State B sends a warship through without seeking the permission of A,
this is an implicit claim on the part of B that A has no right to prohibit the pas-
sage. If A fails to protest against this infringement, this omission can, in its turn,
constitute a tacit admission of the existence of a right of passage after all.
(d) As to paragraph (ii), it will be seen (in Sections 14 and 15) that general
customary law is not necessarily the same as universal customary law. Although
all general customary law has the potential to be universal, it is possible for
states to exclude themselves from the ambit of a general rule by means of per-
sistent objection, within the limits laid down by the relevant rules.
(e) Paragraph (ii) is explained more fully in Part II below, and (iii) in Part III.
2. Use of terms23
(i) In this Statement, “rule(s)” includes principles.
Commentary.
Some commentators draw a distinction between “principles” and “rules”.
23Cf. Appendix to the 2nd Report of the Rapporteur (annexed to 1st Interim Report of the
Committee), Report of the 63rd Conference (1988), 934, 951-59.
Their definitions vary, but the general idea is that principles operate at a higher
level of generality than rules. So, for example, one might speak of the “princi-
ple” of the freedom of the high seas, but of the “rule” that submarines, in pass-
ing through the territorial sea, must navigate on the surface and show their flag.
However, in ordinary (legal) usage the two terms are often used interchangeably,
and furthermore it would be cumbersome to have to keep referring to “rules and
principles” in this Statement. Accordingly, “rules” here includes “principles”.
(ii) “(Customary) rule” or “rule of customary (international) law” in

this Statement means a rule of general customary international law,
unless the context otherwise requires.
Commentary.
The principles concerning the formation of rules of general customary inter-
national law, although similar in many respects to those concerning the forma-
tion of particular customary law, are not necessarily identical. Moreover, the
latter topic is beyond the scope of the present Statement. On the other hand, as
a matter of style it would be cumbersome to keep referring to “general custom-
ary rules”, “rules of general customary law”, and so on; and so where the word
“general” is omitted in this Statement, it should be taken as read, unless the con-
text otherwise requires.
(iii) In this Statement, “customary (international) law” refers to the

corpus of such individual rules.
(iv) In this Statement, “(State) act(s)”, “conduct”, “behaviour” or
“usage” are wholly neutral terms, entailing no judgment as to whether
the acts or omissions in question are declaratory or constitutive of a
rule of customary law, or neither. “Act” connotes a single instance of
conduct; the other terms may, as the context requires, connote either a
single instance or a course of conduct.
(v) In this Statement, “(State) practice” is similar to (iv) above, save
that there is an implication that the conduct is of such a kind that it
may in appropriate circumstances evidence, or contribute to the for-
mation of, a customary rule.
Commentary.
For a fuller discussion of State practice, see below, Part II.
(vi) In this Statement, “mere usage” or “(mere) comity” means con-

duct which, whilst possibly constant and uniform, does not reflect or
constitute a customary rule.
Commentary
It is a commonplace that there are some forms of State conduct which, how-
ever regular, do not give rise to rules of customary international law.24 An exam-
ple would be the habit of addressing letters of condolence when a head of State
dies, which is what public international lawyers call “(mere) comity (courtoisie,
comitas gentium)”, in contradistinction to rules of law.25 Why certain regular
usages do not give rise to rules of customary law is explained in Section 17.
(vii) In this Statement “State(s)” includes, where appropriate, inter-

governmental organizations.
Commentary.
For a fuller explanation, see Section 11 below.
(viii) In this Statement, the term “source(s) of law” is used to denote

the processes or means by which rules of law are created or, as the case
may be, determined.
Commentary.
The term “source” properly belongs to hydrography, but it is so well
entrenched in legal discourse that it would be somewhat artificial to avoid its
use entirely. For analytical purposes it is important, however, to distinguish
between “formal” sources, which are those processes which, if they are
observed, create rules of law (such as treaties and custom), and what
Schwarzenberger called “law-determining agencies” 26 (or, one might say more
simply but more crudely, “evidential sources”). The latter are identified in
Article 38(1)(d) of the Statute of the International Court of Justice as “judicial
decisions and the teachings of the most highly qualified publicists of the vari-
ous nations, as subsidiary means for the determination of rules of law”. In the
present context it should be noted that State practice can be constitutive (a for-
mal source) of a new rule, but it can also be evidence of an existing rule. It is
also helpful for analytical purposes (and hence for this Statement) to distinguish
between a “formal” source of law and an “historic” source of a rule (otherwise
known as a “material” source). The latter is the historic origin of a rule which
only obtains its legal force, however, when it is subjected to a law-making
process (a formal source). For instance, as will be seen (in Section 30), a reso-
lution of the UN General Assembly may provide the inspiration for (be the his-
toric/material source of) subsequent State practice (a formal source, or part
24 Cf. Parry, The Sources and Evidences of International Law (1965), Chap. 1; O’Connell,
International Law (2nd ed., 1970), 7-8; Carreau, Droit International (3rd ed., 1991), 260-61.
25 It should be noted that private international lawyers sometimes use the term in a different sense,
to include rules of public international law.
26 Inductive Approach, 19-21.
thereof) which eventually matures into a rule of customary law. For a fuller dis-
cussion of these concepts, see Appendix to the 2nd Report of the Rapporteur
(annexed to 1st Interim Report of the Committee), Report of the 63rd Conference
(1988), 935, 954-59.
PART II: THE OBJECTIVE ELEMENT: STATE PRACTICE
INTRODUCTORY REMARKS
This Part is based on the 4th Interim Report of the Committee and the dis-
cussion of it at the Taipei Conference.27 It concerns what all members of the
Committee considered to the be most characteristic, and most members of the
Committee considered to be the most important, component of customary inter-
national law, namely, State practice. This component is often described as the
“material” (in contradistinction to the “subjective”) element in customary law.
It is, however, preferable to describe it as the “objective” element, so as to avoid
confusion with the jurisprudentially distinct concept of “material source of law”
(see above, Commentary to Section 2(viii)).
This Part examines (A) what types of act constitute State practice; (B) whose
acts count as State practice; and (C) the density of the practice.
A. WHAT TYPES OF ACT CONSTITUTE STATE PRACTICE?
3. When defining State practice - the objective element in customary

law - it is necessary to take account of the distinction between what
conduct counts as State practice, and the weight to be given to it.
Commentary
What is suggested here is something analogous to (but not the same as) the
well-known distinction in the law of evidence between the admissibility of evi-
dence and its weight (convincingness). Discussion of the objective element in
custom has been bedevilled by a failure to make this distinction. For instance,
those who would deny that such verbal acts as statements in an international
organization count as practice seem to be motivated (whether expressly or not)
by the consideration that “talk is cheap”, and that to make a statement is not the
same as arresting a ship.28 However, whilst in some instances this may be so,
this goes more to the weight to be attributed to the conduct rather than to any
inherent inability of verbal acts to contribute to the formation of customary
rules. (And in any case, talk is not always cheap - see Section 4 below; and on
27 Report of the 68th Conference (1998), 321 & 336.
28 Cf. the dictum in Judge Read’s dissenting opinion in the Fisheries case, ICJ Rep. 1951, p. 116
at p. 191: “The only convincing evidence of State practice is to be found in seizures, where the
coastal State asserts its sovereignty over the waters in question by arresting a foreign ship and by
maintaining its position in the course of diplomatic negotiations and international arbitration.”
the other hand physical acts are not always formal and deliberate manifestations
of State practice. For instance, a ship might be arrested by a minor official with-
out proper instructions, but this will still count as practice if it is not “cancelled”
by some higher authority.)
4. Verbal acts, and not only physical acts, of States count as State
practice.
Commentary.
(a) Verbal acts, meaning making statements rather than performing physical
acts, are in fact more common forms of State practice than physical conduct.
Diplomatic statements (including protests), policy statements, press releases, offi-
cial manuals (e.g. on military law), instructions to armed forces, comments by gov-
ernments on draft treaties, legislation, decisions of national courts and executive
authorities, pleadings before international tribunals, statements in international
organizations and the resolutions these bodies adopt - all of which are frequently
cited as examples of State practice29 - are all forms of speech-act. Physical acts,
such as arresting people or seizing property, are in fact rather less common.
There is no inherent reason why verbal acts should not count as practice,
whilst physical acts (such as arresting individuals or ships) should. For volun-
tarists30, this must necessarily be so: both forms of conduct are manifestations
of State will. For those who stress the importance of belief (opinio juris), ver-
bal acts are probably more likely to embody the beliefs of the State (or what it
says it believes) than physical acts, from which belief may need to be inferred
by others. And whichever school one subscribes to - or both or neither - there
seems to be no inherent qualitative difference between the two sorts of act.31
The practice of international tribunals is replete with examples of verbal acts
being treated as examples of practice.32 Similarly, States regularly treat this sort
of act in the same way. See further, Section 31, Commentary, paragraph (c).
However, it is important to note that this observation was made in the context of claims of territo-
rial sovereignty, where special considerations may obtain.
(For the avoidance of confusion, it should be pointed out that when the expression dictum is used
in this Statement, this does not mean - as it sometimes does in the United States - obiter dictum. It
simply means a judicial pronouncement. If obiter dictum is intended, both words will be used.)
29 Cf. e.g. Brownlie, Principles of Public International Law, (5th ed., 1998), 5. Villiger says,
“There is much merit in qualifying verbal acts as State practice” and that to do otherwise “would
hardly be possible, since States themselves as well as courts regard comments at conferences as
constitutive of State practice”: Customary International Law and Treaties (2nd ed. 1997), 20-21.
30 That is, those who treat the will of States as the source of customary obligation: see below, Part III.
31 This is not to say that their weight will always be the same: see above, Section 3. However, this
depends more on the particular facts than on whether an act is a verbal or a physical one.
32 E.g. “Lotus” case (1927), PCIJ Ser. A, No. 10, pp. 23, 26-30; Nottebohm case (2nd Phase), ICJ
Rep. 1955, p. 4 at pp.21-23; Fisheries Jurisdiction (Merits), ibid. 1974, p. 3 at 24- 26 (paragraphs
55-58); Nicaragua case (Merits), ibid., 1986, p. 14 at 97-109 (paragraphs 183-207); Nuclear
Weapons, ICJ Rep. 1996, p. 226, e.g. at 259-61 (paragraphs 86, 88); Gabcikovo-Nagymaros
Project, ICJ Judgment of 25 September 1997, e.g. at paragraphs 49-54, 83, & 85.
Some statements may nevertheless be more usefully regarded as expressions

of opinion than as formal acts of State practice.
5. Acts do not count as practice if they are not public.

Commentary.
(a) For a verbal act to count as State practice, it must be public - not in the
sense that it need necessarily be communicated to all of the world, but that, if it
is not publicized generally (e.g. by legislation, press statements, etc.), it must be
communicated to at least one other State. (For example, protests are not always
generally publicized, but they are at least communicated to one other State.)
Internal memoranda are therefore not, as such, forms of State practice, and the
confidential opinions of Government legal advisers, for instance, are not exam-
ples of the objective element in custom. If the customary process is seen as one
of claim and response, the reason is clear: an internal memorandum which is not
communicated to others is not a claim or a response. (It is otherwise if the State
publicizes the legal analysis in support of its position: it then becomes part of
its claim.) If the memorandum is only afterwards made public (e.g. through the
operation of laws opening national archives to the public after a certain period
of time), it may be evidence of the State’s subjective attitude to the issue, but is
not an instance of the “objective element”.
(b) By the same token, a secret physical act (e.g. secretly “bugging” diplo-
matic premises) is probably not an example of the objective element. And if the
act is discovered, it probably does not count as State practice unless the State
tries to assert that its conduct was legally justified.
6. In appropriate circumstances, omissions can count as a form of

State practice.
Commentary.
It is true that, in the “Lotus” case, the PCIJ refused to regard the abstention
of States (other than the flag State) from prosecuting for collisions on the high
seas as establishing the existence of a rule of customary international law requir-
ing them to refrain.33 However, that was because, in that case, the abstention was
ambiguous: there could have been other reasons, unconnected with international
law, why a State might have abstained.34 See further, Section 17(iv) and
Commentary. In appropriate circumstances, where there is not the same degree
of ambiguity, it seems reasonable to regard abstentions or omissions as examples
33 PCIJ Ser. A, No. 10, p. 28.

34 See Mendelson, “State Acts and Omissions as Explicit or Implicit Claims”, in Le droit interna-
tional au service de la paix, de la justice et du développement: Mélanges Michel Virally (1991),
373; reproduced in Report of 65th Conference (1992), 360, 370.
of State practice: e.g. if a State were to announce its intention to prosecute a for-
eign diplomat and then, following a protest, abstained from doing so.35
B. THE “STATE” FOR THE PURPOSE OF IDENTIFYING

STATE PRACTICE
7. Acts of individuals, corporations etc. do not count as State practice,

unless carried out on behalf of the State or adopted (“ratified”) by it.
Commentary.
The conduct of individuals, corporations and other, non-governmental bod-
ies undoubtedly contributes to the customary process in its extended sense. For
example, they may encourage their governments to adopt a certain form of
behaviour; they may be the objects of regulation by foreign States; and they
may directly invoke rules of law before national courts or before international
tribunals to which they have access. However, although they may be the occa-
sion or reason for the actions of States and other governmental bodies, only
those States and governmental bodies are capable of performing State practice.
However, if a State adopts the conduct of individuals as its own, then this does
count as State practice. And naturally, a State can act only through individuals
or groups of individuals, so that, if they do so as its representatives or agents, it
is the State itself which is considered to be the actor.
8. The activities of territorial governmental entities within a State

which do not enjoy separate international legal personality do not
as such normally constitute State practice, unless carried out on
behalf of the State or adopted (“ratified”) by it.
Commentary.
The activities of provinces within a federation, or of other subordinate local
authorities, are capable of giving rise to State responsibility;36 but as a matter
of principle the practice of such bodies, though it may impact on international
relations (e.g. California’s unitary tax system) should not, of itself, be regarded
as constituting State practice. The reason is that these entities are not States in
the international law sense of the term and they are not (normally) capable of
conducting their own international relations. It is, however, otherwise if the
entities are constitutionally empowered (albeit in a limited way) to conduct their
35 Cf. also “Lotus” case, PCIJ Ser. A. No. 10, p. 23 (absence of protest); Nottebohm case (2nd
phase), ICJ Rep. 1955, p. 4 at p. 22 (refraining from exercising diplomatic protection); Asylum
case, ibid., 1950, pp. 277-8 (refraining from ratifying convention).
36 Cf. Article 7 of the International Law Commission’s draft Articles on State Responsibility,
Yearbook of the ILC 1980-II, Part 2, 30-34.
own foreign relations, and other States recognize that capacity (e.g. the
Byelorussian and Ukrainian Soviet Socialist Republics before the break-up of
the USSR). Similarly if the entity concerned acts with the authority of the (fed-
eral) State, or if the latter adopts its acts. A State’s failure to prevent the conduct
in question can amount, for present purposes, to tacit adoption. For example, if
other States protest about a component unit’s unitary taxation system, and the
federal entity does nothing to prevent its being put into effect, then this conduct
has to be regarded as having been adopted by the federal State and therefore as
an instance of State practice (whether or not the centre is in a position, under its
constitutional law, to change the rules in question).
9. The practice of the executive, legislative and judicial organs of

the State is to be considered, according to the circumstances, as
State practice.
Commentary.
(a) According to some earlier writers37 State practice consists only of the
practice of those organs capable of entering into binding agreements on behalf
of the State - in other words, the head of State, head of government and foreign
minister. However, this approach is closely linked to one which regards cus-
tomary law as merely tacit treaty law. If one has no a priori attachment to such
a theory, there is no reason why the criteria should be so restrictive.38 As a mat-
ter of comparative constitutional law and of legal theory, the State comprises the
constituent, legislative, and judicial branches as well as the executive. It is cer-
tainly the case that the activities of organs of the State other than the executive
can also engage its international responsibility;39 and although this is not a con-
clusive argument, in the present context the analogy seems persuasive. See fur-
ther, paragraphs (c) to (e) below.
(b) Certainly, the actions of the whole of the executive, and not just the for-
eign ministry, should count. In modern practice, it is not always the foreign min-
istry which has the “lead” in international negotiations and transactions: it can
be the ministry of finance, transport, and so on. Unless an organ of the execu-
tive is acting outside the scope of its authority and its conduct is disavowed by
higher authorities, there seems to be no good reason why the ability to create
State practice should be confined to the foreign ministry.
37 E.g. Strupp, “Les règles générales du droit de la paix”, 47 RCADI (1934-I), pp. 313-315; cf.
Anzilotti, Cours de droit international (tr. Gidel, 1929), 74-75.
38 Accord e.g. Ferrari-Bravo, “Méthodes de recherche de la coutume internationale dans la pra-
tique des Etats”, 192 Collected Courses (1985), 237, 259-61; Daillier & Pellet, Droit internation-
al public (6th ed. 1999), 321.
39 See Arts. 5 & 6 of the International Law Commission’s draft on State Responsibility, Yearbook
of the ILC 1980-II, Part 2, 30-34.
(c) The practice of States and international tribunals shows that a State’s leg-
islation (including its constitution, which may, for instance, include claims to
zones of maritime jurisdiction) can also be regarded as a manifestation of its
practice.40 In addition to the reasons given in paragraph (a) above, it is by no
means everywhere the case that only the executive has a role in international
transactions: for instance, in many countries the legislature (or a section of it)
has a part to play in the making of war and peace, the negotiation of treaties,
and so forth. Again, a country’s legislation will normally apply to aliens within
its territory (and so affect their national State); and it may also be extraterritor-
ial in its range, thus affecting the interests of other States.
(d) Domestic courts, too, are organs of the State, and their decisions should
also be treated as part of the practice of the State.41 For example, a determina-
tion that international law does or does not require State immunity to be accord-
ed in a particular case, or the extraterritorial application of a domestic law. This
observation is unaffected by the fact that decisions of national courts can also be
regarded as (more or less persuasive) “subsidiary means for the determination of
rules of law” within the meaning of Article 38(1)(d) of the Statute of the ICJ.
(e) It can happen, particularly in countries where there is a separation of pow-

ers, that the position of the judiciary (or of the legislature) conflicts with that of
the executive. This is a matter of what weight is to be attached to the various
instances of the State’s practice (see Section 3 above). In the ultimate analysis,
since it is the executive which has primary responsibility for the conduct of for-
eign relations, that organ’s formal position ought usually to be accorded more
weight than conflicting positions of the legislature or the national courts. But it
should also be noted that, in such a case, the internal uniformity or consistency
which is needed for a State’s practice to count towards the formation of a cus-
tomary rule may anyway be prejudiced (see Section 13 below).
10. Although international courts and tribunals ultimately derive

their authority from States, it is not appropriate to regard their
decisions as a form of State practice.
Commentary.
Some authors regard the decisions of international courts and tribunals as a
sort of delegated State practice. But this is misleading. In the first place, the pur-
pose of international courts and tribunals is to act independently of those
appointing them. To treat them as States’ agents is therefore misleading as well
as - in a sense - demeaning. Furthermore, the real significance of the decisions
of international courts and tribunals (apart from their role in settling a particu-
40 See e.g. Nottebohm case (2nd Phase), ICJ Rep. 1955, p. 4 at p. 22.
41 See e.g. “Lotus” case, PCIJ Ser. A., no. 10, pp. 23, 26, & 28-9.
lar dispute) lies in their precedential value as determinations of the law. Even if
they are, strictly speaking, binding only on the parties and only in the particu-
lar case (see e.g. Article 59 of the Statute of the International Court of Justice),
their persuasive force can be considerable - depending on the status of the tri-
bunal, the quality of its reasoning, the terms of the compromis or Statute by
which it is set up, etc.42
11. The practice of intergovernmental organizations in their own

right is a form of “State practice”.
Commentary.
(a) Many intergovernmental organizations are (to some extent at least) inter-
national legal persons in their own right, and are capable of performing acts
which contribute to the formation of international law. For instance, in the
Reservations to the Genocide Convention case,43 the ICJ took into account the
depositary practice of the UN Secretary-General, as well as that of national
chancelleries; and the military activities of that organization can contribute to
the formation of customary rules relating to conduct during armed conflicts.44
(b) Organs of international organizations, and notably the UN General

Assembly, also from time to time adopt resolutions containing statements about
customary international law. Formally, since the decision is recorded as a reso-
lution of (the organ of the) organization, its adoption is a piece of practice by
the organization; and some writers treat it in this way. However, in the context
of the formation of customary international law, it is probably best regarded as
a series of verbal acts by the individual member States participating in that
organ.45 If so, it would add little or nothing to the weight of such practice by the
member States themselves to treat the resolution itself (as distinct from voting
for it) as a further piece of practice, this time on the part of the organization.
42 Prof. Wolfke, in his comments, argued that the fact that States accept the judgments and opin-
ions of judicial organs means that those decisions and opinions can themselves be regarded as a
form of State practice. However, this appears to involve a non sequitur. His further observation that,
in view of its prestige, the World Court can be regarded as “generally accepted law-making prac-
tice” is probably best treated as a suggestion that such decisions can in certain circumstances be
regarded as a “new” source of binding law. As such, it is outside the scope of this Committee’s
investigations. Prof. Villiger, whilst agreeing with the formulation of this Section and the accom-
panying Commentaries, correctly pointed out that what States claim before international tribunals,
on the other hand, is a form of State practice.
43 ICJ Rep. 1951, p. 15.
44 Whether the conduct of organs can create a sort of internal customary law of the organization
concerned, or of international organizations generally, is beyond the scope of this Statement.
45 Such verbal acts consisting in voting in favour, voting against or abstaining, along with expla-
nations of vote, etc.
C. THE DENSITY OF THE PRACTICE.

12. (i) General customary international law is created by State prac-
tice which is uniform, extensive and representative in character.
These three requirements are dealt with in Sections 13-15.
(ii) Although normally some time will elapse before there is suffi-
cient practice to satisfy these criteria, no precise amount of time
is required.
Commentary.
(a) In the North Sea Continental Shelf cases46 the ICJ observed 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 affect-
ed, should have been both extensive and virtually uniform in the sense of the
provision invoked ... .” This fairly summarizes both the State practice and the
case-law on this point.
(b) The quotation from the ICJ just cited makes it clear that, as stated in (ii)
above, there is no specific time requirement47: it is all a question of accumulat-
ing a practice of sufficient density, 48 in terms of uniformity, extent and repre-
sentativeness. Some customary rules have sprung up quite quickly: for instance,
sovereignty over air space, and the régime of the continental shelf, because a
substantial and representative quantity of State practice grew up rather rapidly
in response to a new situation.49
(c) However, in the nature of things some time will normally need to elapse
before a practice matures into a rule. The development of the continental shelf
is an example of how the process often works. In 1945, President Truman pro-
claimed the “jurisdiction and control” of the USA over the adjacent continental
shelf. Other States with important interests in their own continental shelf, such
46 ICJ Rep. 1969, p. 3 at p. 43 (paragraph 74). Cf. also p. 42 (paragraph 73).
47 It is probably in the nature of any customary process that, being informal, it is not possible to
specify precisely how much time is required for a customary rule emerge (unless an arbitrary fig-
ure is set by a central authority). This is certainly true of customary international law.
It is also worth noting that it is often unnecessary to determine at what precise moment the rule did
emerge: what is important is to know whether it had emerged by the time the decision-maker (espe-
cially a third-party decision maker) had to make his or her decision.
48 The expression comes from Waldock, “General Course on Public International Law”, 106
Collected Courses (1962), 1, 44.
49 The former because, on the outbreak of the First World War, States suddenly realized that they
were vulnerable to bombing and to espionage; the latter because developments in technology and
demand for petroleum made it both feasible and desirable for States to exploit deposits in the con-
tinental shelf beyond the territorial sea.
as the United Kingdom, followed suit. Some others, though their own interests
were affected, failed to object. What started out as, first, a unilateral claim and
undertaking, next a bilateral set of obligations, and then a body of particular
customary law restricted to a confined (though not regionally defined) group of
States, gradually ramified into a rule of general law. The process took several
years to be completed. Even in the present era of easy and instantaneous com-
munications, if a State or group of States adopts a practice, others will need to
consider how (if at all) they wish to respond. These responses may give rise to
further responses, and so on. All of this will usually involve some delay.
(d) It might also be argued that the time element is implicit in the notion of
customary law, and there is a good deal of truth in this. As against this, it has
been argued that there are some principles of unwritten international law which
are axiomatic and which therefore do not need to be supported by practice over
time. Examples might be the principles of sovereign equality, and of non-inter-
vention. To some extent, this point could be met by observing that the notion of
customary international law is not necessarily coterminous with that of unwrit-
ten law, so that these other forms of unwritten law are perhaps not really “cus-
tomary law” at all. See above, Introduction, paragraph 8, where it was also
pointed out that the remit of the Committee did not include ius cogens or “gen-
eral principles of law recognized by civilized nations”. But in any case, it could
probably also be shown that all or most of the “axiomatic” principles in ques-
tion actually took some time to become generally accepted.50
(e) On the question whether UN General Assembly resolutions are capa-

ble of creating “instant” customary law, see Section 32, Commentary, para-
graph (e).
13. For State practice to create a rule of customary law, it must be

virtually uniform, both internally and collectively. “Internal”
uniformity means that each State whose behaviour is being con-
sidered should have acted in the same way on virtually all of the
occasions on which it engaged in the practice in question.
“Collective” uniformity means that different States must not have
engaged in substantially different conduct, some doing one thing
and some another.51
Commentary.
(a) See the quotation in paragraph (a) of the Commentary to Section 12.
50 One has only to think of the nineteenth century law on capitulations and on intervention for
humanitarian purposes or for the collection of debts to see that the principles of sovereign equali-
ty and non-intervention, for instance, have not always been regarded as axiomatic.
51 See e.g. Asylum case, ICJ Rep. 1950, p. 266 at p. 277; Fisheries case, ibid. 1951, p. 116 at p. 131.
(The French text renders the requisite practice as “fréquente et pratiquement

uniforme”.) In the Asylum case, the Court referred to the need for “constant and
uniform usage”: ICJ Rep. 1950, p. 266 at 277.
(b) So far as concerns internal uniformity (or consistency), in the following

year, in the Fisheries case, the Court considered whether the Norwegian system
of straight base-lines for the delimitation of the territorial sea was valid and
opposable to the United Kingdom. In this context, it said:
The Court considers that too much importance need not be attached to
the few uncertainties or contradictions, real or apparent, which the United
Kingdom Government claims to have discovered in Norwegian practice.
They may be easily understood in the light of the variety of the facts and
conditions prevailing in the long period which has elapsed since 1812, and
are not such as to modify the conclusions reached by the Court.52
The ICJ also rightly pointed out in the Nicaragua case53 that inconsistencies
between what a State says is the law and what it does are not fatal, so long as it
does not try to excuse its non-conforming conduct by asserting that it is legally
justified.
(c) So far as concerns what has been termed “collective” uniformity or con-
sistency54, if there is too much inconsistency between States in their practice,
there is no general custom and hence no general customary rule. (It is beyond
the scope of this Statement to consider whether the result is one or more bodies
of particular customary law, or the relation between parties to a specific body
of particular law and those who do not adhere to it.) In the Fisheries case, the
ICJ pointed out that, although a ten-mile closing line for bays had
been adopted by certain States both in their national law and in their
treaties and conventions, and although certain arbitral decisions have
applied it as between these States, other States have adopted a different
limit. Consequently, the ten-mile rule has not acquired the authority of a
general rule of international law.55
Another much-cited example is the Asylum case. Here, Colombia claimed

that a regional custom existed which entitled it to demand a safe-conduct from
52 See ICJ Rep. 1950, p. 116 at 138. Similarly, in the Asylum case, the Court brushed aside cer-
tain internal inconsistencies in the stated views of the parties: ICJ Rep. 1951, p. 266 at 278. The
Rapporteur has also observed that statements by the government or governments concerned may
smooth out inconsistencies in physical acts.
53 (Merits), ICJ Rep. 1986, p. 14 at p. 98.
54 By Mendelson, 272 Collected Courses, 211-14.
55 ICJ Rep. 1950, p. 116 at 131.
its embassy in Lima, Peru, for a political opponent of the Peruvian Government.
In support of its claim, Colombia relied on a number of treaties, to some of
which Peru was not a party, and on a large number of particular cases in which
this type of diplomatic asylum (as opposed to territorial or political asylum) was
sought and granted. The International Court observed that
The facts brought to the knowledge of the Court disclose so much

uncertainty and contradiction, so much fluctuation and discrepancy in the
exercise of diplomatic asylum and in official views expressed on various
occasions, there has been so much inconsistency in the rapid succession
of conventions on asylum, ratified by some States and rejected by others,
and the practice has been so much influenced by considerations of politi-
cal expediency in the various cases, that it is not possible to discern in all
this any constant and uniform usage, accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the offence.56
However, over time inconsistencies may disappear.57 And, as with internal

uniformity, it seems that minor departures from collective uniformity will not
necessarily be fatal. Thus, although the various proclamations of an exclusive
economic zone were not identical, they were sufficiently similar for the ICJ to
be able to hold, in the Continental Shelf (Libya/Malta) case that the EEZ had
become part of customary international law.58 At any rate, there was sufficient
uniformity for the main principles to have become part of international law,
even if that was not necessarily so (at least at that time) for detailed rules about,
say, the allocation of surplus stocks.
14. (i) For a rule of general customary international law to come into
existence, it is necessary for the State practice to be both extensive
and representative. It does not, however, need to be universal.
(ii) Subject to the rules about persistent objection in Section 15

below, for a specific State to be bound by a rule of general cus-
tomary international law it is not necessary to prove that it par-
ticipated actively in the practice or deliberately acquiesced in it.
56 ICJ Rep. 1951, p. 266 at 277. Although this case concerned an alleged regional customary rule,
it is authority for the proposition stated here. Another case where the practice was held to be too
inconsistent was the Reservations to the Genocide Convention case, ibid., p. 15 at 25.
57 As Akehurst pointed out (“Custom as a Source of International Law”, 47 British Year Book of
International Law (1974-5), 1, 20), over time an inconsistent practice may align itself in one sense,
citing the Paquete Habana, 175 US 677 (US Supreme Ct., 1900).
58 ICJ Rep. 1985, p. 13 at 33 (paragraph 34); cf. ibid. 1982, p. 18 at 74 (paragraph 100).
Commentary.
(a) Leaving aside the question of persistent objection, which is dealt with in
Section 15, no international court or tribunal has ever refused to hold that a
State was bound by a rule of alleged general customary international merely
because it had not itself actively participated in the practice in question or delib-
erately acquiesced in it. In other words, it is not necessary to prove the individ-
ual consent of a State for it to be bound by a rule of general law. There have
been several cases in which the International Court, for instance, has taken it for
granted that the State concerned would be bound by the rule if it could be shown
that the other criteria for the formation of general customary law were satis-
fied.59 This is also generally the position taken by States, and there have been
no substantial challenges to this proposition. For instance, when one examines
the emergence of such universally applicable customary rules and principles as
those relating to diplomatic immunities, the prohibition of piracy and of priva-
teering, and sovereign rights over the continental shelf, it is impossible to show
that every State positively consented to the emergence of the rule in question.
Yet it is virtually unanimously accepted that these rules have come to bind all
States. It follows, therefore, that a practice does not need to be universal for all
States to be bound by it: “general” practice suffices.
(b) It follows, also, that newly-independent States or those new to a partic-

ular activity are bound by existing rules of customary law. Although the con-
trary view is occasionally found in the academic literature, this proposition has
not been seriously contested by States which fall into either category. As
Waldock pointed out, in the cases in which they participated in the PCIJ and
ICJ, respectively, neither Poland nor India sought to rely on the fact that they
were new States, and it seems to have been assumed that they would be bound
by existing rules.60 Equally, although the new States formed after the dissolu-
59 In the “Wimbledon” case (PCIJ Ser. A, No. 1 (1923)), the Permanent Court of International
Justice did not rely on any German participation in the State practice concerned; neither did it look
for specifically French or Turkish participation when considering, in the “Lotus” case, the claim
that only the flag State had jurisdiction in the case of collisions on the high seas: ibid., No. 10
(1927). In the Nottebohm case (2nd Phase), the ICJ did not seem concerned to discover whether
the parties to the dispute, Liechtenstein and Guatemala, had recognized the rule requiring a “gen-
uine link” of nationality before a diplomatic claim could be brought: it was content to examine the
general practice of (third) States: ICJ Reports, 1955, p. 4. Similarly, in the North Sea Continental
Shelf cases, although the ICJ rejected the Danish and Netherlands submissions on customary law,
this was because, on the facts, it considered that no new rule had emerged, and not because
Germany was not a participant in this practice. In the pleadings in the Fisheries case, it was agreed
by the parties that the conduct of third parties was sufficient to found a rule of general law: ICJ
Pleadings, Fisheries case, I, 381, paragraph 255 (Norwegian counter-memorial); ibid., II, 427,
paragraph 161) (UK reply) .
60 Waldock, “General Course on Public International Law”, 106 Collected Courses (1962-II), 52-
53. See German Settlers in Poland case (1923), PCIJ Ser. B, No. 6 at p. 36; Certain German
Interest in Polish Upper Silesia case (1926), ibid., Ser. A, No. 7 at pp. 22 & 42; Right of Passage
case, ICJ Reports, 1960, p. 6.
tion of the Soviet Union, Yugoslavia and the Czech and Slovak Republics took
different stands as to succession to treaty obligations of their predecessors, they
have never indicated that they do not consider themselves bound by customary
international law. On the contrary, many of them have confirmed in their con-
stitutions not only that they are bound by customary international law, but also
that they consider generally recognized principles and norms of international
law to be a part of the law of the land.61 Certainly, newcomers are free to try
and change the rules through contrary practice which obtains the acquiescence
of others (or through amendment by treaty). But that is equally true for longer-
established States. And until the existing customary rules are changed, they con-
tinue to oblige old and new States alike.
(c) Supporters of the voluntarist approach, which regards the consent of

States as a necessary ingredient in customary international law, seek to square
the facts stated in paragraphs (a) and (b) with their theory that States are bound
by customary rules only because they consent to them. They assert that existing
States, by doing nothing, do in fact consent, and that newly independent States
(and those new to an activity) voluntarily choose to accept existing customary
law, even though they are (at least in theory) free to reject it.62 Section 18 deals
with the validity of this theory. For the present it will suffice to note that, what-
ever the approach taken to the subjective element, it is conceded on all sides that
general customary rules are (for whatever reason) binding on all States, even
new ones and those new to a type of activity63, as well as those existing States
which played no part in the new custom, neither engaging in the practice con-
cerned nor acquiescing in any real sense.
(d) A custom will not be binding on all States unless the practice, as well as
being uniform, is also “extensive” - to use the language of the Court in the
above-quoted passage from the North Sea Continental Shelf cases. Given the
inherently informal nature of customary law, it is not to be expected, neither is it
the case, that a precise number or percentage of States is required. Much will
depend on circumstances and, in particular, on the degree of representativeness of
the practice: as to which see paragraph (e) below. Provided that participation is suf-
ficiently representative, it is not normally necessary for even a majority of States
to have engaged in the practice, provided that there is no significant dissent.64
61 See, for example, Article 15(4) of the Constitution of the Russian Federation, Article 3 of the
Constitution of Estonia, Preamble and Article 17 of the Uzbek Constitution; Article 6 of the
Turkmen Constitution, Article 8 of the Belarus Constitution. See further Vereshchetin, “New
Constitutions and the Old Problem of the Relationship between International Law and National
Law”, 7 European Journal of International Law (1996), 28.
62 E.g. Tunkin, Theory of International Law (tr. Butler, 1974), 127 & 129, and Wolfke, Custom in
Present International Law (2nd ed., 1993), esp. at 165-6
63 See e.g. Accioly, Tratado de Direito Internacional Publico (2nd ed., 1956), I, 38-39.
64 See. e.g. The “Scotia” , 14 Wallace 170 (US Supreme Court, 1871); The “Paquete Habana”,
(e) In addition to the explanations already given, one reason why it is impos-
sible to put a precise figure on the extent of participation required is that the cri-
terion is in a sense qualitative rather than quantitative. That is to say, it is not
simply a question of how many States participate in the practice, but which
States. In the words of the Court in the North Sea Continental Shelf cases, the
practice must “includ[e] that of States whose interests are specially affected”.
(“Practice” here includes acquiescence.) The criterion of representativeness has
in fact a dual aspect - negative and positive. The positive aspect is that, if all
major interests (“specially affected States”) are represented, it is not essential
for a majority of States to have participated (still less a great majority, or all of
them). The negative aspect is that if important actors do not accept the practice,
it cannot mature into a rule of general customary law.
The fact that the test is not purely quantitative may appear undemocratic. But
leaving aside the question what is meant by “democratic” in this context, it
should be noted that customary systems are rarely completely democratic: the
more important participants play a particularly significant role in the process.
And certainly, the international system as a whole is far from democratic. So, in
this regard, customary international law is at least in touch with political reality.
In the nature of things, who is “specially affected” will vary according to cir-
cumstances. There is no rule that major powers have to participate in a practice
in order for it to become a rule of general customary law. Given the scope of their
interests, both geographically and ratione materiae, they often will be “special-
ly affected” by a practice; and to that extent and to that extent alone, their par-
ticipation is necessary.65 However, it will not necessarily be only the major pow-
ers who are “specially affected”. In the law of the sea, for instance, some of the
States whose nationals are most heavily engaged in distant-water fishing would
not normally be regarded as major powers; and the same is true of most of the
coastal States who have a special interest in offshore fisheries. These States have
also played an important part in the evolution of customary rules in that domain.
In other areas of activity, different States may be particularly affected. 66
175 US 677 (1900); and cases cited in Mendelson, 272 Collected Courses 214-227, where some
statistics are given. Prof. Wolfke rightly pointed out that the requirement of extensiveness and rep-
resentativeness of practice is particularly important when such practice challenges an existing rule.
He went on to say that “In [the] case ... of customary regulation of a completely new situation... a
very short and scarce practice may suffice: see, e.g. the legal status of outer space”. As a statement
of principle, this may quite possibly be correct: but the example may not be the most apposite.
Apart from anything else, it begs the question whether (what might theoretically have been claimed
to be) “overflight” by a couple of States, but acquiesced in by many others, can properly be said to
constitute “scarce” practice.
65 A separate but connected point is that, because their extensive interests, major powers often
contribute a greater quantity of practice than other States.
66 See further, Mendelson, loc. cit., for a detailed analysis of the representativeness of the practice
in some cases before the International Court.
15. If whilst a practice is developing into a rule of general law, a State per-
sistently and openly dissents from the rule, it will not be bound by it.
Commentary.
(a) There is in practice some overlap between two conceptually distinct situ-
ations. (i) A State or group of States which is important in a particular area of
activity can, by its opposition, prevent any rule of general (as opposed to partic-
ular) customary law from developing. (ii) Any State whatsoever can, by its per-
sistent objection, prevent an emerging rule of customary law becoming oppos-
able to it. Case (i) is simply a manifestation of the rule, just discussed in Section
14, Commentary, paragraph (e), that for a rule of general law to come into exis-
tence, participation in the practice must be sufficiently representative. If States
of sufficient importance in the area of activity in question manifest their dissent,
the requisite condition is not fulfilled. Consequently, the present Section is con-
cerned only with case (ii) - the so-called “persistent objector rule”.
(b) There is fairly widespread agreement that, even if there is a persistent

objector rule in international law, it applies only when the customary rule is in
the process of emerging. It does not, therefore, benefit States which came into
existence only after the rule matured, or which became involved in the activity
in question only at a later stage. Still less can it be invoked by those who exist-
ed at the time and were already engaged in the activity which is the subject of
the rule, but failed to object at that stage. In other words, there is no “subsequent
objector” rule. The rule, if it exists, is available only those who object before the
rule has fully emerged.
(c) Although some authors67 question the existence of this rule, most accept
it as part of current international law.68 As a matter of theory, voluntarists, at any
rate, are not in a position to dispute it, because for them consent, whether given
or withheld, is crucial. There is a measure of judicial and arbitral support for the
existence of the rule,69 and no decisions which challenge it. There is also a body
67 E.g. D’Amato, The Concept of Custom in International Law (1973), 233-63; Stein, “The
Approach of the Different Drummer: the Principle of the Persistent Objector in International Law”,
26 Harvard Int. Law Jl. (1985), 457; Charney, “The Persistent Objector Rule and the Development
of Customary International Law”, 56 BYIL (1985), 1.
68 E.g. Jennings & A. Watts (eds.), Oppenheim’s International Law, I: Peace (9th ed., 1992), 29;
Rousseau, Droit international public, I (1970), 326; Verzijl, International Law in Historical
Perspective, I (1968), 37; Brownlie, Principles of Public International Law (5th ed., 1998), 10;
Tunkin, Theory of International Law (tr. Butler, 1974), 130; Villiger, Customary International Law
& Treaties (2nd ed. 1997), 33-37; Wolfke, op. cit., 66-7; Danilenko, Law-Making in the
International Community (1993), 109-13; Hulton, “The Persistent Dissenter Rule in Customary
International Law: A Survey of the Case-Law and the Literature”, paper circulated on behalf of the
British Branch of the ILA at the Cairo conference (1992). An early example is Bynkershoek, De
Foro Legatorum (1744, tr. G.J. Laing, 1946), Ch. XIX in fine (p. 539).
69 E.g. Asylum case, ICJ Rep. 1950, pp. 266, 277-8; Fisheries case, ibid. 1951, pp. 116, 131;
of State practice in support,70 though it is not as copious as one might at first

expect, for two reasons: (i) States often prefer the argumentative strategy of
claiming that no general rule exists anyway; and (ii) the lone State swimming
against the stream may eventually give up - though this does not, of course,
prove that it was not entitled to invoke the persistent objector rule so long as it
wished to do so. As a matter of policy, the persistent objector rule could be
regarded as a useful compromise. It respects States’ sovereignty and protects
them from having new law imposed on them against their will by a majority; but
at the same time, if the support for the new rule is sufficiently widespread, the
convoy of the law’s progressive development can move forward without having
to wait for the slowest vessel.
(d) The objection must be expressed, not entertained purely privately within the
internal counsels of the State; and it must be repeated as often as circumstances
require (otherwise it will not be “persistent”). Verbal protests are sufficient: there
is no rule that States have to take physical action to preserve their rights.
(e) In its pleadings in the Fisheries case, the United Kingdom (unlike
Norway) sought to restrict the operation of the rule to cases where the objector
had an acquired right under an established rule, which the new rule would
remove.71 There does not seem to be any other support in practice or in theory for
this limitation; but as a matter of fact, a State is unlikely to object unless it thinks
that its rights (which can include freedom of action in an area previously unregu-
lated) will be infringed by the new rule.
(f) The British written pleadings in that case also suggested that a State
could not exclude itself from the operation of a “fundamental principle” of
international law.72 The point was not pursued in the oral arguments, nor dealt
with by the Court. A number of writers support this proposition when applied to
Fisheries Jurisdiction case (Merits), ibid., 1974, pp. 3, 10-11 (cf. especially the individual opinions
at pp. 92, 120 & 147-9); Fischbach & Friedricy case, 10 RIAA 388, 397 (1903, Germany-Venezuela
Mixed Claims Commission); Roach & Pinkerton v. US, Inter-American Commission on Human
Rights, Annual Rep. 1986-7, p. 147 at p. 168 (paragraph 54); The “Antelope”, 10 Wheaton 66, 122
(1825, US Supreme Court); Le Louis, Forest, (1817) 2 Dods. 210 (England, High Court of
Admiralty). Charney, in particular, has argued that the first two cases are not authority for this propo-
sition, particularly on the ground that they constitute obiter dicta. However, his reasoning is not con-
vincing: see Hulton, op. cit.; Mendelson, 272 Collected Courses 227-44.
70 E.g. the British and Norwegian Pleadings in the Fisheries case, ICJ Pleadings, I, 381-3, para-
graphs 256-60 (Norwegian counter-memorial); II, 426-7, paragraphs 162-4 (UK reply); IV, 98-9
(UK oral argument) - cf. Fitzmaurice, “The General Principles of International Law Considered
from the Standpoint of the Rule of Law”, 92 RCADI (1957-II), 99-101; the opposition of the USA
and its allies to the lowering of the standard of “just compensation” for State takings of
foreign-owned property; and (broadly) the same group’s opposition, as a matter of customary as
well as of treaty law, to the rules contained in Part XI of the Law of the Sea Convention 1982.
71 Fisheries case, ICJ Pleadings, IV 98-9 (UK oral argument).
72 Ibid., II, 426-7.
ius cogens; but ius cogens is outside the scope of the Committee’s remit.73 Nor
is it the case that “fundamental principles of international law” are automatical-
ly ius cogens: for instance, sovereign equality is a fundamental principle, but it
can be derogated from by consent (e.g. in the voting rules of some internation-
al organizations). To the extent that the “fundamental principle” in question
forms part of the ius dispositivum and not the ius cogens, there seem to be no
other precedents to support the British position.74
PART III: THE SUBJECTIVE ELEMENT

Introductory Remarks
1. The substance of this Part is taken from the 3rd Interim Report of the
Committee and the discussion of it at the 67th Conference in Helsinki in 1996.
That Report comprised partly a summary by the Rapporteur of an article by the
Chairman entitled “The Subjective Element in Customary International Law”,75
and partly a report of the replies of members of the Committee to a question-
naire, submitted to them by the Rapporteur, about the ideas contained in that
summary. The response to the questionnaire indicated that a majority of mem-
bers agreed with those ideas, save in relation to some small points. The 3rd
Interim Report did not, however, reduce those ideas to some sort of codified
form: this is now attempted in the present Part.
2. The question of the subjective element in customary law is highly con-
troversial. It has been well said that “The precise definition of ... the psycho-
logical element in the formation of custom, the philosopher’s stone which trans-
73 Bos, A Methodology of International Law (1984), 247-55, suggests that a persistent objector can
be bound by a rule embodying a “paramount value”. It is not clear whether this concept is cotermi-
nous for him with ius cogens and, if not, how the paramountcy of such a value is to be determined.
74 Thirlway, International Customary Law & Codification (1972), 28-29, & 110, and Schachter,
International Law in Theory & Practice (1991), 13-14, give qualified support to such a limitation.
But Thirlway does so only insofar as what is dissented from is a fundamental concept or principle,
as opposed to a rule, without however succeeding in making a convincing distinction between these
notions. In any case, States do not so much dissent from concepts as from norms (rules or princi-
ples). For his part, Schachter concedes that the British limitation is not authoritatively established,
but finds it attractive on policy grounds. But one of his criteria for determining whether a principle
is “fundamental and of major importance” appears to be the attitude of the majority of States, which
is precisely where, on policy grounds, the persistent objector rule comes into its own. He also draws
attention to the fact that other States are accepting reciprocal obligations, and implies that the dis-
senting State would otherwise be a “free rider”. But a State might reasonably conclude that it has
more to lose from a new rule than it gains thereby: reciprocity is not a panacea. Thirdly, it might well
be thought that to say that “The degree to which new customary rules may be imposed on recalci-
trant States will depend, and should depend, on the whole set of relevant circumstances” is, in this
particular context, too vague even by the standards of international law, particularly when it is borne
in mind that there is no tribunal with the compulsory jurisdiction to determine these questions.
75 66 British Year Book of International Law (1995) ,177-208. The substance of this Chapter, with
some amendments, forms Chapter III of Mendelson’s Hague lectures, 272 Collected Courses 155.
mutes the inert mass of accumulated usage into the gold of binding legal rules,
has probably caused more academic controversy than all the actual contested
claims made by States on the basis of alleged custom, put together.”76 This
observation also neatly highlights the fact, however, that in the real world of
diplomacy the matter may be less problematic than in the groves of Academe.
It is the Committee’s conviction that some of the controversy surrounding this
topic is due to the fact that the proponents of conflicting views were not always
really addressing the same question and that, more generally, distinguishing
between different issues can assist in understanding the topic and in dispelling
some of the misconceptions and mutual misunderstandings which have bedev-
illed it. Amongst other things, it is useful to distinguish between (1) individual
views or positions of States and their collective view or position; (2) the differ-
ent form these views or positions may take - on the one hand, belief, and on the
other, will or consent; (3) the different stages in the life of a customary rule, and
especially the time when it begins to be formed, on the one hand, and the time
when it is already established, on the other.
3. As will be seen in the remainder of this Part, the subjective element

means, for some, consent or will that something be a rule of customary law, and
for others a belief that it is a rule - to put it simply76a. It is possible to achieve
an elision or apparent reconciliation of these two approaches by using such
terms as “accepted” or “recognized” as law.77 These words can connote a mere
acknowledgement of an existing state of affairs (a declaratory viewpoint), or
they may bear a constitutive meaning - States are bound by the rule because
they choose to acknowledge its obligatory character. In some respects these
portmanteau terms are useful: except in special circumstances to be described
in Section 17, State practice satisfying the criteria set out in Part II is accepted
as law. But it is nevertheless useful to analyze more precisely the mechanism
that is at work, and the degree - in the Committee’s opinion limited - to which
the presence of a subjective component (and especially its proof) is in fact nec-
essary to the formation of a rule of customary international law.
4. In essence, and without prejudice to the precise way in which these Sections
and Commentary are formulated, the Committee’s view may be summarized as
follows. If it can be shown that States generally believe that a pattern of conduct
fulfilling the conditions set out in Part II is permitted or (as the case may be)
required by law, this is sufficient for it to be law; but it is not necessary to prove
the existence of such a belief. Indeed, it is only in the case of a practice which has
76 Thirlway, International Customary Law and Codification (1972), 47
76aStern, “La coutume au coeur du droit international: quelques réflexions” in Melanges offerts à
Paul Reuter: le droit international, unité et diversité (1981), 479, 486 describes the distinction as
one between “assentiment” and “sentiment”.
77 As it happens, “accepted as law” is the expression used in Article 38(1)(b) of the Statute of the
ICJ.
already achieved an appropriate level of generality that such a belief is likely to

exist: those who initiate a new practice which is inconsistent with the previous
law (e.g. the assertion of rights to an exclusive economic zone) cannot realistical-
ly be said to have a belief in its legality. See Section 16. This is not to say, how-
ever, that opinio juris has no part to play whatsoever. For even where there is a
settled pattern of behaviour which at first sight satisfies the conditions set out in
Part II, there may be circumstances which disqualify the practice concerned (or
some parts of it) from counting towards the formation of a rule of customary law.
This is because those concerned assume, assert or take the position that the con-
duct concerned does not count, has no precedential value. This is dealt with in
Section 17. The reason why this conduct does not count is often expressed in
terms of a lack of belief (a sort of opinio non juris), and it will be shown that most
of the judicial assertions of the necessity of opinio juris in fact arose in that con-
text. These are, however, exceptional cases, and most members of the Committee
agreed that, where practice exists which satisfies the conditions set out in Part II
and is not covered by one of the exceptions discussed in Section 17, it is not nec-
essary to prove the existence of an opinio juris. It may often be present, or it may
be possible to infer it; but it is not a requirement that its existence be demonstrat-
ed. Whilst Section 16 (and, to a large extent, Section 17) is concerned with belief,
Section 18 deals with will. The main point there is that (as already stated in
Section 14(ii)), it is not necessary for an individual State to have consented (still
less, to be proved to have consented) to a rule for it to be bound, provided the
other conditions set out in Part II are satisfied. More generally, whilst someone
needs to have willed a new practice to become law if the process of custom-for-
mation is to begin (namely, the initiators of the practice and those who respond
positively to it), it is not necessary that the international community as a whole
should have consented to the rule in a conscious sense. Customary law is not tacit
treaty law. However, this does not mean that consent is wholly irrelevant. First, as
stated in Sections 14 and 15, the deliberate withholding of consent can either
exempt the objecting State from itself being bound by a general rule or even, if
the objector or objectors are significant actors in the field, prevent a general rule
coming into existence. In other words, in the circumstances specified in those
Sections, dissent counts. Secondly, Section 18 states that whilst, for the reasons
given, it is not necessary to prove that an individual State (or States generally) did
in fact consent to a rule, such proof, if it is in fact forthcoming, will normally be
sufficient for the State or States to be bound.
5. Broadly stated, therefore, the purport of these Sections is that it is not

always, and probably not even usually, necessary to prove the existence of any
sort of subjective element in addition to the objective element, but (a) where it
is present, that may be sufficient to establish the existence of a customary rule
binding on the State(s) in question; and (b) proof of its absence may mean that
such a rule has not come into existence, either because the practice is not of a
sort which “counts” towards the formation of a customary rule, or because per-
sistent objection has prevented a general rule from emerging, or at any rate has
prevented its binding the particular objector(s). Finally, Section 19 considers the
degree to which a strong showing of the subjective element can make up for a
paucity of actual practice (and vice versa).
16. A belief, on the part of the generality of States, that a practice sat-
isfying the criteria set out in Part II corresponds to a legal obliga-
tion or a legal right (as the case may be) (opinio juris sive neces-
sitatis) is sufficient to prove the existence of a rule of customary
international law; but it is not (subject to Section 17) necessary to
the formation of such a rule to demonstrate that such a belief
exists, either generally or on the part of any particular State.78
Commentary
(a) Like the corresponding provisions in the Statute of the PCIJ, Article
38(1)(b) of the Statute of the ICJ instructs the Court to apply “international cus-
tom, as evidence of a general practice accepted as law”. Although many have
expressed puzzlement with the order of this group of words, the explanation
appears to have much to do with the influence, at that time the PCIJ Statute was
drafted, of the historical school of legal theory (not, originally, a theory about
international law). This held that law, and customary law in particular, was an
emanation of the Volksgeist (national spirit) and the embodiment of the nation’s
“juridical consciousness” - one possible interpretation of the phrase opinio juris
(sive necessitatis). Such theories, which were of dubious validity even in the
context of domestic, let alone international, law, have long since been rejected.
But the language lingers on to muddy the waters of customary international law.
(b) The so-called subjective element in custom has often been described
(including in dicta of the ICJ) by the Latin phrase “opinio juris sive necessi-
tatis”. The expression is not to be found in classical Roman law and appears to
be of relatively recent and rather dubious provenance, especially when applied
to international law.79 Literally, the phrase means “belief of law or of necessi-
ty”, and it (and especially its short form opinio juris) is probably best rendered
78 For a different view see especially Cheng, “United Nations Resolutions on Outer Space:
‘Instant’ International Customary Law?”, 5 Indian Journal of International Law (1965), 23;
reprinted in Cheng (ed.), International Law: Teaching and Practice (1982), 273.; id., “Custom: The
Future of General State Practice in a Divided World”, in Mcdonald & Johnston (eds.), The
Structure & Process of International Law (1983), 515. He holds that it is opinio juris which is the
crucial element in customary law. For him, State practice is, in the final analysis, significant only
as evidence of an opinio juris. Most commentators, including most members of the Committee,
would not go so far.
79 Cf. Guggenheim, “L’origine de la notion de l’ opinio juris sive necessitatis comme deuxième
élément de la coutume dans l’histoire du droit des gens”, in Hommage d’une génération de juristes
au Président Basdevant (1960), 258; Mendelson, 272 Collected Courses 268-70.
by “belief in the legal permissibility or (as the case may be) obligatoriness of
the practice”.80 This approach is exemplified by the dictum of the International
Court in the North Sea Continental Shelf cases cited above (Introduction, para-
graph 9). For most of those who follow this approach, it is not so much a ques-
tion of what a State really believes (which is often undiscoverable, especially
since a State is a composite entity involving many persons with possibly differ-
ent beliefs), but rather a matter of what it says it believes, or what can reason-
ably be implied from its conduct. In other words, it is a matter of what it claims.
(c) It may well be true (though trivial) to observe that States will usually or
always hold an opinio juris about an established rule of law. The first part of the
present Section therefore says that where it can be shown that an opinio juris
exists about a practice, that will be sufficient. But this tells us nothing about the
necessity of this subjective state for the formation of a new rule of customary
law; and neither does it follow that, if an established practice exists which sat-
isfies the criteria of Part II, it is also necessary to prove the separate existence
of an opinio juris about that practice.81 And in fact, it is hard to see how a State,
if properly advised, could entertain the belief that its conduct is permitted (or
required) by existing law when that conduct is, by definition, a departure from
it.82 States actively engaged in the creation of a new customary rule may well
wish or accept that the practice in question will give rise to a legal rule, but it is
logically impossible for them to have an opinio juris in the literal and tradition-
al sense, that is, a belief that the practice is already legally permissible or obli-
gatory. This is true both individually and collectively. Hence the last clause of
this Section (“it is not necessary to the formation of such a rule that such a belief
exists, either generally or on the part of any particular State”).
(d) This latter statement is contrary to a substantial body of doctrine and,
more importantly, appears to be contrary to a number of dicta of the
International Court. However, in Section 17 it will be shown that these dicta
have been taken out of context and that most or all of them relate to special sit-
uations where opinio juris is relevant, especially in preventing practice count-
ing towards the formation of a customary rule.
80 Some conduct may be referable to an obligation of States to do or refrain from doing some-
thing: e.g. to make reparation for an international wrong or to refrain from prosecuting foreign
diplomats; other conduct may be referable to certain action (or inaction) being permissible - e.g.
sending a ship in innocent passage through another State’s territorial waters, or refraining from
humanitarian intervention. Of course, what is permissible in the case of State A can connote an
obligation on the part of State B: for instance, if A has a right of innocent passage through B’s
waters, B is under an obligation not to take action to prevent that passage. For further discussion,
see the work cited at n. 34 above, and also Section 1.
81 It might be argued that, although opinio juris is necessary, it is not necessary to prove it. But
from a practical legal perspective, this seems tantamount to saying that it is not necessary.
82 Cf. e.g. Kelsen, “Théorie du droit coutumier”,1 Revue internationale de la théorie du droit
(N.S.) (1939), 253, 263.
Those special, and comparatively unusual, cases do not provide guidance on

whether, in the more typical instance of a constant and uniform practice by sev-
eral States, unopposed by others (including those directly affected by the prac-
tice), it is necessary to demonstrate some sort of opinio juris. Of course, in such
a case it might often be relatively easy to infer the existence of the subjective
element from the practice, if one so desired. But this begs the question why it is
necessary to look for it at all. In practice international tribunals and, it seems,
States, do not specifically look for evidence of opinio juris unless there is rea-
son to believe, for the sorts of reasons examined in the Section 17, that practice
otherwise satisfying the criteria of Part II does not “count” towards the forma-
tion of customary law. See further, Section 19, Commentary, paragraph (a)
below.
(e) The present Section concerns belief. Section 18 sets out broadly similar
principles in relation to will or consent.
17. Nevertheless, in certain circumstances an assumption, belief, or

taking of position on the part of States that certain conduct can
not or does not give rise to a legal obligation or right can prevent
that conduct from contributing to the formation of a rule of cus-
tomary law.
Commentary.
It is for the purpose of distinguishing practices which generate customary
rules from those that do not that opinio juris is most useful. The Court itself
referred to this function in the North Sea Continental Shelf cases.83 It is useful
to think of this criterion as a means of distinguishing, not so much (or only) one
class of rules from another, but those precedents which count towards the for-
mation of law from those which do not. Another way of putting this, which
harks back to the phrase “in their international legal relations” in the working
definition in Section 1(i), is to say that certain conduct of States does not take
place in the context of their international legal relations and so does not count.
Acts of mere comity are an example of this.84
83 I.C.J. Rep. 1969, p. 3 at 44 (para. 77), cited in paragraph 9 of the Introduction.

84 Certain other acts do take place within the overall context of a State’s international legal rela-
tions, but nevertheless do not count because of the specific circumstances. One example is a com-
pensatory payment made ex gratia, which is dealt with in (iii) below. Here the State demanding
compensation is certainly acting within the framework of what it perceives to be international law:
but by issuing a disclaimer, the respondent is in effect saying that its payment takes place outside
the law, but is merely a matter of comity. Similarly, bilateral treaties which settle disputes between
States are certainly instruments of particular international law, but the circumstances may be such
that they have no bearing on the position in general international law: see paragraph (b) of the
Commentary to (iv) below.
(i) Some practices (acts of mere comity), even though regularly

observed, are treated by States as being by their nature outside the
sphere of legal relations.
Commentary.
There are some practices which, although regularly observed in internation-
al relations, might said be to fall into a class of actions which cannot give rise
to customary obligations. For example, sending condolences on the death of a
head of State. It might seem inevitable that these rules of etiquette should not
be considered legally obligatory; but given the importance which has been
attached to protocol in other times and other societies, it is not entirely axiomat-
ic.85 If forced to explain why these practices amount merely to comity, one
would probably say that it is generally believed in the international community
that they do not give rise to legal obligations (a sort of opinio non juris), or - to
put it differently - no-one claims performance of these duties as a matter of legal
right. But the truth may be that the absence of legal obligation in such a con-
text is regarded as self-evident, just as, in municipal law, questions of good
manners are treated as self-evidently not a matter for legal regulation.86
(ii) Some practices would in theory be capable of giving rise to cus-

tomary rules, but for an understanding on the part of States as a
whole that they do not in fact do so.
Commentary
Another group of practices which are regarded as belonging to the sphere of
mere comity are cases where the usage is of such a nature that it could perfect-
ly well give rise to legal rights and duties, but it happens not to do so because
of a common belief that the conduct does not entail legal rights or duties. Again,
there is an opinio non juris or, to put it differently, no claim of right. A fre-
quently-cited example is the exemption from customs duties of goods imported
for the personal use of diplomats. Article 36 of the Vienna Convention on
Diplomatic Relations 1961 shows that this exemption is perfectly capable of
being the subject of legal regulation; but before the adoption of the Convention
it was regarded as merely a concession granted as a matter of comity. Probably
the origin of this opinio non juris is that such concessions were always accom-
panied by disclaimers, as to which see (iii) below.
85 Quadri, “Cours général du droit international public”, 113 Collected Courses (1964-III), 237,
328 seems mistaken when he says that the distinction between legal usages and rules of mere comi-
ty depends on the relative importance of the subject-matter.
86 This meets Akehurst’s point (“Custom as a Source of International Law”, 47 BYIL (1974-75),
34) that States do not normally issue disclaimers about the obligatoriness of this kind of conduct.
(iii) Some specific instances of State practice would be capable of giv-

ing rise to a customary rule, but for a disclaimer on the part of
those performing them.
Commentary
Here one is dealing with acts of State practice which would be perfectly
capable of creating precedents which could in the future be invoked against the
State performing the act or against others, but for an accompanying statement
by the government concerned that it is, for example, making a compensatory
payment ex gratia or without prejudice. Here it is possible, once again, to speak
in terms of an opinio non juris; but it is perhaps more natural to speak, not in
terms of belief, but of claims: indeed, the natural expression to describe this
type of conduct is disclaimer. The point is that the disclaimer prevents a pay-
ment which would otherwise be regarded as a precedent from counting as one.87
(iv) Some conduct is too ambiguous to be treated, without more, as

constituting a precedent capable of contributing to the formation
of a customary rule. In such cases, the conduct will only count if
there is positive evidence that the State or States concerned
intended, understood or accepted that a customary rule could
result from, or lay behind, the conduct in question.
Commentary
There are cases where the conduct in question is ambiguous; here the language
of opinio juris is commonly employed, not least by the International Court, to
explain why it is that it does not count as a precedent. Conduct which is not clear-
ly referable to an existing or potential legal rule - which, in other words, does not
necessarily belong to the sphere of international legal relations - should not count
towards the creation or determination of the existence of a general customary rule.
(a) One such case involves ambigous omissions. Omissions are perfectly
capable, if they are sufficiently unambiguous, of constituting acts of State prac-
tice: see Section 6. But even though it is possible, both in theory and in practice,
for such omissions to count, in many cases they are ambiguous. An example is
the “Lotus” case.88 There, France argued that the rarity of prosecutions for col-
lisions on the high seas (other than by the flag State of the ship on board which
the wrongful act took place) was evidence of an obligation not to institute such
prosecutions. The Permanent Court disagreed, on the ground that there was no
evidence of a “conscious[ness] of having a duty to abstain”. What it seems to
have meant was the following. There are all sorts of possible reasons why a State
might refrain from prosecution in such a case. One possibility, admittedly, is that
87 By contrast, the demand for compensation by the other party is a precedent.
88 (1927) PCIJ Ser. A, no. 10, at p. 28. Cf. the dissenting opinion of Judge Nyholm, pp. 59 & 60.
it would be contrary to customary international law. But there may be other rea-
sons: for example, lack of jurisdiction under municipal law; lack of interest; or a
belief that a court of the flag State is a more convenient forum. To use the lan-
guage of claim and response, it might be said that a mere failure to prosecute
could not in itself be said to amount to an implied acknowledgment of an inter-
national legal duty to refrain from prosecuting. In other words, the omissions
were too ambiguous to count, in the absence of evidence of why (or the context
in which) they occurred.
(b) Omissions are not the only kind of ambiguous conduct, however. Another
occurred in the North Sea Continental Shelf cases.89 There an alternative argu-
ment of Denmark and the Netherlands was that, even if Article 6 of the Geneva
Convention on the Continental Shelf 1958 did not embody pre-existing custom-
ary law or crystallize an emerging equidistance rule for delimitation, State prac-
tice had grown up since 1958 along the same lines, so that a new rule of cus-
tomary international law had come into being whose content was the same as the
conventional rule. In support of this contention they referred to a number of
bilateral treaties whereby the continental shelf had been apportioned on the basis
of equidistance. The International Court of Justice rejected this argument, rely-
ing once again (amongst other things) on the notion of opinio juris. The Court
found that over half of the States which had delimited on the basis of equidis-
tance were already, or were shortly to become, parties to the Geneva Convention
on the Continental Shelf. Their practice could therefore be discounted, as they
had a treaty obligation so to act. It went on:
As regards those States, on the other hand, which were not, and have not
become parties to the Convention, the basis of their action can only be prob-
lematical and must remain entirely speculative. ... [N]o inference could jus-
tifiably be drawn that they believed themselves to be applying a mandatory
rule of customary international law. ... The essential point in this connection
... is that even if these instances of action by non-parties to the Convention
were much more numerous than they in fact are, they would not, even in the
aggregate, suffice in themselves to constitute the opinio juris.90
What the Court was apparently saying was the following. One of the con-
ceivable reasons why States might decide to delimit their overlapping conti-
nental shelf on the basis of equidistance is the existence of a general legal oblig-
ation necessitating it. But there are other possible explanations. For example, to
divide a resource equally is an obvious common-sense way of settling a dispute
89 ICJ Reports, 1969, p. 3.

90 Ibid., at 43-44 (paras. 76-77). See also the Asylum case (though admittedly not a case about gen-
eral international law), where the Court was also of the opinion that “considerations of convenience
or political expediency seemed to have prompted the territorial State to recognize asylum without
such a decision being dictated by any feeling of legal obligation”: ICJ Rep. 1950, p. 266 at 286.
over entitlement; but just because two States decided on this practical solution
does not necessarily mean that either of them thought that this was the limit of
its entitlement, or that they were obliged to determine the matter in this way.
The conduct, in short, was ambiguous, and in such cases it will only be if there
is an accompanying opinio juris or, to put it in different words, an unambigu-
ous (express or implied) claim and response based on general international law,
that the conduct in question will count as a precedent.
18. Whilst the will or consent of a particular State that a practice sat-
isfying the criteria set out in Part II shall be a rule of law is suf-
ficient to bind that State to a corresponding rule of customary
international law, it is not generally necessary to prove that such
consent has been given by a State for it to be bound by the rule in
question, subject to Section 15. Neither is it necessary to prove the
consent of the generality of States.
Commentary
(a) For some authorities, often called voluntarists, the key to customary law
is not belief (opinio juris) but will.91 For them, sovereignty means that States
can only be bound by legal obligations if they consent. Such consent can be
given expressly and in writing, by means of a treaty; or informally and often
implicitly, in the form of customary law. Although, as Wolfke has pointed out,
this is not necessarily to treat customary law as tacit treaty law,92 it is often,
through this approach, tantamount to it.93 But it is a fallacy to reason that, just
because international law as a system is based on consent, and just because the
identification of the processes by which the law is created (i.e. the sources)
depends also on the will of States, it necessarily follows that any given process
91 Though they often use the phrase opinio juris (sive necessitatis) to denote what they understand
the subjective element to be, strictly speaking opinio cannot mean “will” or “consent”.
To espouse a voluntarist approach it is not necessary to think that the primary object of the prac-
tice in question is the creation of a rule. The primary purpose may be simply to achieve a particu-
lar result; but States are in general aware that their acts can have legal consequences because of the
existence of the customary law process. Most members of the Committee who responded to the
Rapporteur’s questionnaire agreed with the Chairman that, whether or not customary rules devel-
oped in the past in a haphazard or spontaneous way, “much customary law today emerges as a result
of careful calculation on the part of its instigators and is thus far from spontaneous”.
92 Custom in Present International Law (2nd ed., 1993), 96-100. A similar view is taken by Sur,
“La coutume internationale. Sa vie, son oeuvre”, 3 Droits, Revue française de théorie juridique
(1986), 111, 122-23.
93 See e. g. Anzilotti, Cours de droit international (tr. Gidel, 1929), 68. For what it is worth, the
drafting history of Art. 38(1)(b) of the Statute seems to bear out the conclusion that its authors were
not thinking in terms of tacit consent. For a particularly full account, see Haggenmacher, “‘La doc-
trine des deux éléments du droit coutumier dans la pratique de la Cour internationale”, 90 RGDIP
(1986), 18-32.
(and, in the present context, customary law) has consent as its sole or indis-
pensable ingredient.94
(b) Section 14 has already stated the principle, for which there is a great deal
of support in State practice and in the decisions of tribunals, not to mention the
literature, that it is not necessary for any particular State to have consented to a
rule of general international law to be bound by it.
(c) The voluntarist theory in fact suffers for almost exactly the opposite
defects to those displayed by the approach which is based on belief (opinio
juris). As stated in paragraph (c) of the Commentary to Section 16, if a general
opinio juris exists, that is good evidence that a customary rule has already come
into existence, but it does not explain the formation of the rule, particularly in
its early stages, because the pioneers of the new rule could not have had the re-
quisite belief. Voluntarists, on the other hand, can explain quite well the sub-
jective position of, say, the USA at the time of the Truman Proclamation: it
wanted a new rule to emerge giving States “jurisdiction and control” over the
adjacent continental shelf. But their approach is less useful in explaining the
binding force of a rule which has matured. The voluntarist approach also seeks
to explain why new States (and those new to a practice) are bound by existing
customary law by postulating their tacit consent: but that consent is a mere legal
fiction developed in order to try and maintain the voluntarist position. Likewise,
it is simply not true that, whilst the rule is in the course of emerging, all States
consent in one way or another to it. Obviously, those who initiate the practice
do consent to the rule. This applies also to those who imitate the practice.
Similarly for those who, being specially affected by a claim, fail to protest
against it - e.g. if States whose nationals have traditionally fished in waters adja-
cent to the territorial sea of State X fail to object when it claims an exclusive
economic zone and excludes their fishermen from those waters (before sover-
eign rights over the EEZ became an established rule).95 But there may well be
a significant number of States who do nothing and who are not so directly
affected by a claimed new rule that a response on their part seems called for.
(Especially when it is borne in mind that even a protest is often regarded as a
relatively unfriendly act.) If the practice nevertheless eventually achieves the
requisite level of generality and representativeness, those States will find one
day that a rule binding on them has come into being without their having con-
sented to it in any real sense of the term. So, once again, to presume their con-
sent is a mere fiction.
(d) On the other hand, if it can be shown that a particular State has in fact
94 For a fuller critique of the voluntarist approach, and indeed of a more general insistence on the
proof of the presence of a subjective element, see Mendelson, 272 Collected Courses, Chap. III.
95 In the Fisheries case the Court held that the United Kingdom’s failure to protest against the
Norwegian straight baseline system, of which it must have known and which directly affected its
national interests, precluded it from complaining about the application of those rules to its nation-
als: ICJ Reports, 1951, pp. 116, 136-9.
assented to an alleged rule of customary international law, that will usually be

enough to bind it. The reason is that, even if there is not a general rule of cus-
tomary law, there can still be a rule of particular law, and to establish that
narrower form of obligation it is usually sufficient simply to demonstrate that
the particular State consented to the alleged rule.96 The consent of a State is
therefore a sufficient, but it is not a necessary, condition of its being bound by
a rule of customary international law.97
(e) The consent of States is also significant in two negative ways. First, it
has already been shown that, if a sufficient number of States refuse to accept an
emerging rule, or if some specially affected States withhold their approval, the
threshold requirement of participation by a sufficiently extensive number of
States, representative of all the interests affected, will not be satisfied. See
above, Section 14. Secondly, it has also been seen (Section 15) that, even if the
requisite threshold has been met, a particular State which objects whilst the rule
is in the process of emerging will not be bound, but can benefit from the “per-
sistent objector” rule.
(f) For the foregoing reasons, it would not be correct to say that consent or will
play no part at all in the formation of customary rules. But equally, it would not
be accurate to say that it is only through consent that customary law is created.
19. It appears that, in the conduct of States and international courts

and tribunals, a substantial manifestation of acceptance (consent
or belief) by States that a customary rule exists may compensate
for a relative lack of practice, and vice versa.
Commentary.
(a) The view has already been expressed in this Statement that the subjec-
tive element is not in fact usually a necessary ingredient in the formation of cus-
tomary international law - certainly on the part of any given State which is
allegedly bound by the putative customary rule. But whether or not this
approach is accepted, what seems clear is that, if there is a good deal of State
practice, the need (if such there be) also to demonstrate the presence of the sub-
jective element is likely to be dispensed with.98 There are, for instance, numer-
96 Although in the Nicaragua case (Merits) the ICJ said that “The mere fact that States declare their
recognition of certain rules is not sufficient for the Court to consider these as being part of customary
international law, and as applicable as such to those States” (ICJ Rep. 1986, p. 16 at pp. 97-98, para-
graph 184), this attitude is inconsistent with normal judicial attitudes to concessions by the parties to
litigation, and also with theory. It perhaps reflects a desire that the Judgment should not just be seen
as the application of particular law, but as a pronouncement having a more general applicability.
97 This is the view propounded by Mendelson, 272 Collected Courses 253-67.
98 Unless there are grounds for considering that the practice does not count towards the formation
of a rule - e.g. because it is a usage of mere comity (see above, Section 17).
ous examples where the ICJ has simply referred to the constant and uniform
practice of States, without any reference to the subjective element.99 For vol-
untarists, this is because, the more widespread the practice, the easier it is to
infer the requisite consent. Mutatis mutandis, this is also the case for supporters
of the belief approach. For Mendelson, it is simply because it is a misconcep-
tion to think that the subjective element is invariably (or perhaps even usually)
necessary.100 But whatever the theory, the result is the same: the more the prac-
tice, the less the need for the subjective element.
(b) More controversial is the converse proposition, that if there is a great

deal of evidence of consent or opinio juris, less proof of practice is required.
Some would question it on the grounds that customary law without custom
(practice) is a contradiction in terms. The answer to this could be that terminol-
ogy is not the key issue. It could also be recalled that, as stated in Section 4,
statements are a form of State practice.101 Others would have reservations on
the grounds that, to put it crudely, “talk is cheap” and only practice represents a
sufficiently serious prise de position by States. But it has already been suggest-
ed that this is something of an over-simplification: see Sections 3 and 4. In par-
ticular, verbal acts can constitute a form of State practice, and not all verbal acts
carry little weight. For those who, like Cheng, consider that opinio juris is the
key element in customary law, there is no need to attach excessive importance
to State practice anyway. And for voluntarists, consent is the key ingredient.
Even though this Statement does not endorse either of these positions in an
unqualified form, it has already been stated (in Section 18) that, if an individual
State does consent to a rule, that State will normally be bound by it. It follows
that, if the generality of States consent, they will all be bound. Consequently,
this assertion in this Section appear to be correct as a matter of theory. It also
seems to correspond to current trends in the practice of international courts and
tribunals. For instance, in the Nicaragua case (Merits), the International Court
of Justice, whilst re-emphasizing the need for both the objective and the sub-
jective elements, in fact demanded very little evidence of actual practice in the
face of what it apparently considered to be clear-cut proof of the opinio juris of
the international community embodied in such instruments as the Declaration
on Principles of International Law concerning Friendly Relations and Co-oper-
ation among States in Accordance with the Charter of the United Nations.102 On
99 See e.g. Fisheries case, ICJ Reports, 1951, p. 116 at p. 128 (low, as opposed to high, water mark
the starting point for measurement of the territorial sea); Nottebohm case (Second Phase), ibid.,
1955, p. 4 at 23 (definition of nationality); Barcelona Traction case, ibid. 1970, p. 3 at 42 (para. 70
- attribution of nationality to corporations); Continental Shelf (Libya/Malta) case, ibid. 1985, p. 13
at 33 (para. 34 - exclusive economic zone now a part of customary law).
100 Cf. Mendelson, 272 Collected Courses, Chap. III. See also the authors cited in note 103 below.
101 Though those who insist on the necessity of two separate elements must beware of double
counting.
102 Annex to General Assembly res. 2625 (XXV), 24 Oct. 1974.
the basis of this case in particular, Kirgis has speculated that there might be a
“sliding scale”:
On the sliding scale, very frequent, consistent state practice establishes
a customary rule without much (or any) affirmative showing of an opinio
juris so long as it is not negated by evidence of non-normative intent. As
the frequency and consistency of the practice decline in any series of
cases, a stronger showing of an opinio juris is required. At the other end
of the scale a clearly demonstrated opinio juris establishes a customary
rule without much (or any) affirmative showing that governments are con-
sistently behaving in accordance with the asserted rule.103
But if this approach is to be accepted, it can only be with the clear proviso
that the evidence of States’ intentions or opinio juris must be clear-cut and
unequivocal. This is a very high threshold. The matter will be considered fur-
ther below, especially in Part V when considering resolutions of the UN General
Assembly. See especially Section 32.
PART IV: THE ROLE OF TREATIES IN THE FORMATION OF

CUSTOMARY INTERNATIONAL LAW
1. The draft of the 5th Interim Report of the Committee, which was prepared
by the Chairman after taking into account comments of the Rapporteur, was cir-
culated to members at the end of 1998 and revised by him in the light of com-
ments received from some of the members.104
103 “Custom on a Sliding Scale, 81 American Journal of International Law (1987), 146. Danilenko
(Law-Making in the International Community (1993), 107) and Schachter (“Entangling Treaty and
Custom”, International law in a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dinstein
ed., 1989), 731) take a somewhat similar view, the latter holding that this effect is more likely to
be present if the rules are of a fundamental character, such as those prohibiting aggression, geno-
cide, torture, the widespread killing of prisoners of war, etc. Henkin takes an analogous view so far
as concerns at least “constitutional” norms of the system: International Law: Politics and Values
(1995), 31-32. However, this encroaches on territory which, as has already been noted, is beyond
the scope of the present Report: see Introduction, paragraph 8. Müllerson is of the opinion that “the
more consistent and general is practice, the lower the necessity to look for the subjective element
confirming the acceptance of such practice as legally binding. And on the contrary, strong opinio
juris generalis is able to compensate the lack of consistency in ‘actual’ practice” (Ordering
Anarchy: International Law in International Society (2000), 229).
It might perhaps be added that, the more widespread the participation in a treaty, the more diffi-
cult (ex hypothesi) it will be to find evidence of practice outside the treaty by non-parties, or by
parties in relation to non-parties, even though, strictly speaking, it is only such practice, and not the
practice under the treaty, which counts towards the formation of a customary rule: see below,
Section 24, Commentary, paragraph (b).
104 Mr. Bangert, Prof. Cheng, Dr. Villiger and Prof. Wolfke. Some other members, whilst not mak-
ing specific comments, wrote to express their agreement with the draft.
2. The present Statement will not be examining the formal hierarchical rela-
tionship between custom and treaty; their relative usefulness; the development of
customary rules regarding the application or interpretation of treaties; or the pur-
pose and effectiveness of trying to codify rules of substantive customary interna-
tional law. It is confined to the formation of customary rules. This being the case,
even a discussion of whether and how treaties can constitute evidence of existing
customary law falls, strictly, outside its purview. However, for the purposes of
exposition, it will be convenient to deal with this topic, which is the subject of Part
IV(A). The Statement then describes the ways in which treaties can sometimes
provide the impetus for the formation of new customary law (Part IV(B)). Finally,
it deals with the more controversial and difficult matters of whether and to what
extent treaties can either help to “crystallize” rules of customary law (Part IV(C))
or of themselves give rise to new rules of general law (Part IV(D)).
A. Treaties as Evidence of Pre-existing Customary Law.

20. There is no general presumption that a treaty codifies existing
customary international law.
Commentary
Treaties seldom simply codify well-established and uncontroversial rules of
customary international law: it would not be worth the parties’ effort to do so.105
Furthermore, it may be evident from the language (e.g. the preamble) of a par-
ticular treaty that it was in order to improve an existing (legal) state of affairs
that the treaty was concluded - in other words, that it aimed at the “progressive
development of international law”.
21. Section 20 does not, however, exclude the possibility of a treaty
containing specific provisions which do represent existing custom-
ary law; it is a question in each case of examining the evidence.
Commentary
(a) What is new law (lex ferenda) for some may be existing law (lex lata) for
others, but the disagreement can be circumvented for practical purposes by sim-
ply agreeing to a treaty provision. Again, the treaty may contain some elements
of customary international law and others of purely conventional law. For
instance, (i) some substantive provisions of the treaty may be lex lata and oth-
ers lex ferenda, or (ii) some provisions reflecting the customary lex lata may be
accompanied by others establishing machinery for their implementation.
Consequently, whilst it may be reasonable (for the reasons given in Section 20)
to presume (rebuttably) that a given treaty will not, in its entirety, simply codi-
105The point is an elementary one, but it is worthwhile re-stating it in view of the frequency with
which non-specialists misunderstand the position. Moreover, it is the logical first step in the pre-
sent sequence of propositions.
fy existing (undisputed) customary international law, it would not be safe to

make that assumption about each and every provision contained therein.
(b) The treaty may say on its face that it is declaratory of customary law.
Such statements are rare, and where they do exist, the treaty will not necessar-
ily assert that all of its terms fall into this category. For instance, the preamble
to the Geneva Convention on the High Seas 1958 merely states that the parties
wished to codify the law relating to the high seas and had adopted the
Convention’s provisions as “generally declaratory of established principles of
international law”, which does not exclude the possibility that particular provi-
sions are not. Furthermore, the fact that the parties assert that the treaty is
declaratory of existing law is (so far a concerns third parties or independent
observers) no more than a piece of evidence to this effect; though, naturally, the
larger the number of parties the more persuasive this evidence will be. The par-
ties themselves may be bound by their assertion.
22. The fact that a treaty permits reservations to all or certain of its
provisions does not of itself create a presumption that those pro-
visions are not declaratory of existing customary law.
Commentary.
In the North Sea Continental Shelf cases the ICJ, pointing out that Article 6
of the Geneva Convention on the Continental Shelf was (unlike Articles 1-3) one
of the provisions in respect of which reservations were permitted, said that,
“speaking generally, it is a characteristic of purely conventional rules and oblig-
ations that, in regard to them, some faculty of making unilateral reservations
may, within certain limits, be admitted; - whereas this cannot be so in the case of
general or customary law rules and obligations which, by their very nature, must
have equal force for all members of the international community, and cannot
therefore be the subject of any right of unilateral exclusion exercisable at will by
any one of them in its own favour”.106 From this, it inferred that Article 6 did not
reflect existing customary law or crystallize it. However, this reason has been
strongly criticized, both judicially and in the literature.107 Just because, for some
diplomatic reason or another, reservations are permitted to some articles and not
to others, this surely does not prove that those to which reservations are permit-
ted are not rules of customary law. If they were customary law, the fact that the
treaty obligation could be removed or reduced would not affect them.108 The
106 ICJ Reports, 1969, pp. 38-39 (para. 63).
107 See esp. the dissenting opinions of Judges Morelli & Lachs, ibid., pp. 197, 198 and 218, 223-
25, respectively.
108 Indeed, the Court’s reasoning could be stood on its head, by arguing that, the more secure a rule
is in customary law, the less harm can be caused to its integrity by permitting reservations to a pure-
ly conventional restatement of it. Furthermore, since on any view both the conventional and the
customary rule of continental shelf delimitation were ius dispositivum (i.e. derogable, unlike a rule
of jus cogens), it is not at all clear why derogations would prejudice the rule’s normativity. See fur-
ther below, Section 27, Commentary, paragraph (d).
Committee therefore considered it appropriate respectfully to refrain from adopt-

ing the Court’s rather categorical statement on this point.
23. A treaty concluded in order to settle a specific issue between

States does not of itself provide any indication that the general
customary law is (or is not) the same as that laid down in the
treaty. The same applies to a succession of such treaties.
Commentary
(a) If two or more States have a specific dispute (or potential dispute) and
agree on terms of settlement, there is no inherent reason to assume that these
terms represent their agreement on the general law: they may constitute no more
than a compromise to settle that particular controversy. In the Barcelona
Traction Co. case (2nd Phase),109 the ICJ, considering whether the lifting of the
corporate veil in agreements for compensation arising out of nationalization
constituted a precedent in the present circumstances, stated:
Specific agreements have been reached to meet specific situations, and

the terms have varied from case to case. Far from evidencing any norm as
to the classes of beneficiaries of compensation, such arrangements are sui
generis and provide no guide in the present case.110
However, some settlements may constitute evidence of the position in cus-

tomary law, if they constitute an acknowledgement of the other party’s claim.
One example cited by Baxter111 is the agreement of the United States to com-
pensate Japan for the sinking of a cartel ship during World War II.112
The question whether a succession of agreements intended to regulate rela-
tions for the future in a specific domain - e.g. extradition treaties or investment
protection agreements - gives rise to, or evidences, new customary rules is dealt
with in Section 25.
109 ICJ Reports, 1970, p. 3 at 40 (para. 61) - though the Court also relied on the inconsistency of
the practice. Cf. the decision of the arbitral tribunal in Govt. of Kuwait v. American Oil. Co.
(AMINOIL), (1982), 66 International Law Rep., 518 at 606-7, rejecting Kuwait’s argument that a
series of agreements providing for compensation for nationalization of oil companies’ assets based
on a calculation of net book value represented customary law.
110 A similar observation was made in the North Sea Continental Shelf cases, but this concerned
agreements which were alleged to constitute evidence of the emergence of a new rule. It will
accordingly be dealt with in Part IV (B) below; but it should be appreciated that the line between
evidence of existing law on the one hand, and new or emerging law on the other, can be blurred at
times, especially where bilateral treaties are concerned.
111 “Treaties & Custom”, 129 Collected Courses (1970), 25, 80.
112 Agreement between the United States and Japan for the Settlement of the Awa Maru Claim,
Tokyo, 1949, 89 UNTS 141.
B. Treaties and the Formation of (New) Customary Law

24. Multilateral treaties can provide the impulse or model for the
formation of new customary rules through State practice. In other
words, they can be the historic (“material”) source of a customary
rule. However, there is no presumption that they do so. Conduct
which is wholly referable to the treaty itself does not count for this
purpose as practice: though see Part IV(C) and (D).
Commentary
(a) History records several examples of specific treaty provisions being repli-
cated in the practice of States outside the treaty and in due course becoming rules
of customary international law. Examples are the abolition of privateering in the
Declaration of Paris 1856, and Articles 2(4) and 51 of the United Nations
Charter. Essentially what happens is that parties to the treaty, in relation to non-
parties, or non-parties in relation to parties or between themselves, adopt a prac-
tice in line with that prescribed (or authorized) by the treaty, but which is in fact
independent of it because of the general rule that treaties neither bind nor bene-
fit third parties.113 In the North Sea Continental Shelf cases the ICJ acknowl-
edged that this form of custom-creation was a perfectly possible phenomenon.114
The International Military Tribunal at Nuremberg found that Hague Convention
IV on land warfare enunciated norms which had become generally binding rules
of customary law, notwithstanding the inclusion in Article 2 of a si omnes
clause.115 In its advisory opinion on the Legality of the Threat or Use of Nuclear
Weapons, the ICJ came to similar conclusions about a broader range of conven-
tions dealing with humanitarian law.116 A number of conventions drafted under
the auspices of the UN have also (in whole or in part) had this effect.
In such cases, the treaty constitutes an historic (“material”) source of the
customary rule, but not the “formal” source. For further discussion of this
distinction, see the Commentary to Section 2 (viii).
(b) It is, however, important to note that in principle, and subject to what
will be said in C and D below, what States do in pursuance of their treaty oblig-
ations is prima facie referable only to the treaty, and therefore does not count
towards the formation of a customary rule. It was for this reason that the ICJ
113 Cf. Article 38 of the Vienna Convention on the Law of Treaties 1969: “Nothing in Articles 34
to 37 [embodying the rule that treaties neither burden or benefit third parties, together with very
limited qualifications of it] precludes a rule set forth in a treaty from becoming binding upon a third
State as a customary rule of international law, recognized as such.”
114 ICJ Rep. 1969, p. 41 (para. 71).
115 Judgment of the International Military Tribunal for the Trial of Major War Criminals (1946),
UK Command Paper Cmd. 6964, p. 65.
116 ICJ Rep. 1996, p. 226 at 256-58 (paras. 74-82). It also expressed the same views (albeit in
vaguer terms) about the “principle of neutrality, whatever its content”: ibid., pp. 260-61 (paras. 88-
89). Cf. also the Nicaragua case, ibid. 1986, p.14 at 97-98 (paras. 183-185).
refused, in the North Sea Continental Shelf cases, to accept that delimitations
and proclamations, based on equidistance, by a number of States following the
conclusion of the Continental Shelf Convention had resulted in the emergence
of a new rule of customary international law along the same lines as that con-
tained in Article 6, insofar as these States were parties to the Convention.117
Evidently, it considered that practice under the Convention was exclusively
referable to the Convention and did not count outside that context. Logically,
that must be correct, subject to the observations to be made in C and D below.
But the conduct of parties to a treaty in relation to non-parties is not practice
under the treaty, and therefore counts towards the formation of customary
law.118 (After the rules contained in a treaty have also found general acceptance
as rules of customary law, it may in some cases be difficult to distinguish
between conduct in pursuance of a conventional obligation from that undertak-
en in compliance with the customary rule.)
(c) It is also important to notice that, although (as noted above) provisions
of multilateral treaties can be the historic source of a new customary rule, they
do not necessarily do so. The normal conditions for the formation of customary
law must be satisfied (a sufficiently extensive, representative, and uniform prac-
tice and - if and insofar as relevant - the presence of a subjective element: see
Parts II & III). Thus, in the North Sea Continental Shelf cases the Court held,
amongst other things, that the practice was insufficiently extensive to warrant
the conclusion that the content of Article 6 of the Continental Shelf Convention
had passed into customary law.119
25. There is no presumption that a succession of similar treaty provi-

sions gives rise to a new customary rule with the same content.
Commentary
(a) As already noted,120 the International Court of Justice in the North Sea
Continental Shelf cases refused to regard a number of bilateral treaties and other
117 ICJ Reports, 1969, p. 3 at 43-44 (paras. 75-76). The Court’s exclusion, in addition, of States
which were not at the relevant time parties to the Convention, but merely about to become parties,
seems logically more questionable; but for practical purposes it may have been reasonable.
118 In some cases, parties to a treaty find themselves compelled, for practical reasons, to apply the
same standard to non-parties as they do to parties. This may be for reasons of administrative con-
venience, or it may be because acting in a manner inconsistent with the treaty, although legally per-
missible in relation to a non-party, will in fact simultaneously violate the rights of the other treaty
parties. For instance, even if a non-party to a nuclear test-ban treaty had no right to complain of the
carrying out of such a test, a party to the treaty could not test a nuclear weapon without violating
its obligation to other signatories. See further Mendelson, “Disentangling Treaty and Customary
International Law”, 1987 Proceedings of the American Society of International Law, 160.
119 It also placed reliance of the absence of evidence that the non-parties who had delimited on the
basis of equidistance recognized an obligation to do so: see Section 17(iv ).
120 Above, n. 110.
instruments delimiting the continental shelf on the basis of equidistance as evi-

dence of an emerging customary rule121 imposing even a prima facie obligation
to delimit in this way. The question of the legal effect of a succession of similar
treaties or treaty provisions arises particularly in relation to bilateral treaties, such
as those dealing with extradition or investment protection. Bearing in mind the
considerations set out in Sections 23 and 24, there seems to be no reason of prin-
ciple why these agreements, however numerous, should be presumed to give rise
to new rules of customary law or to constitute the State practice necessary for their
emergence. For instance, even though there are very many bilateral extradition
treaties, it would be wrong to assume that there is a duty to extradite in the
absence of a treaty. Some have argued that provisions of bilateral investment pro-
tection treaties (especially the arrangements about compensation or damages for
expropriation) are declaratory of, or have come to constitute, customary law. But
for the reasons analogous to those given in relation to Section 23, there seems to
be no special reason to assume that this is the case, unless it can be shown that
these provisions demonstrate a widespread acceptance of the rules set out in these
treaties outside the treaty framework. In short, there is no presumption that a
series of treaties gives rise to a new rule of customary law, though this does not
preclude such a metamorphosis occurring in particular cases.122
(b) As a matter of principle, similar considerations should apply to a suc-

cession of multilateral conventions. However, in some cases it may be that fre-
quent repetition in widely accepted treaties evinces a recognition by the inter-
national community as a whole that a rule is one of general, and not just partic-
ular, law. See, for instance, the discussion of various humanitarian conventions
in the Nuclear Weapons case,123 and C and D below. But the test remains qual-
itative rather than quantitative.
(c) A succession of treaties along similar lines can sometimes give rise to a
new customary rule about the law of treaties (rather than of substantive law).
Thus, according to Schwarzenberger,124 it became the practice to incorporate
into treaties a clause requiring them to be interpreted according to the ius aequ-
um (i.e. in good faith) rather than strictly and literally. Eventually, it came to be
taken for granted that such was the required method of interpretation, so that
express stipulation became unnecessary.
121 Arising subsequently to the conclusion of the 1958 Convention on the Continental Shelf.
122 Baxter, 129 Collected Courses 25, 78 ff. gives a number of examples.
123 ICJ Rep. 1996, pp. 226, 256-9, paras. 74-84.
124 The Inductive Approach to International Law (1965), p. 111.
C. The “crystallization” by treaties of emerging customary interna-

tional law.
26. Multilateral treaties can assist in the “crystallization” of emerg-

ing rules of customary international law. But there is no pre-
sumption that they do.
Commentary.
(a) In the North Sea Continental Shelf cases, though the Court considered
whether Article 6 of the Geneva Convention on the Continental Shelf was
declaratory of pre-existing customary law, this was not actually the contention
of Denmark and the Netherlands by the time of the oral argument. Instead, they
submitted that the adoption of the Convention by the Geneva Conference of
1958 had “crystallized” an “emerging” customary rule.125 The ICJ showed itself
willing to entertain the possibility, and in effect found that this had actually
occurred in relation to the rules embodied in Articles 1 to 3 of the same
treaty;126 but it held on the facts that this was not true of the article at issue
(Article 6). Hence there is no presumption that a multilateral treaty (and still
less a bilateral treaty or treaties) will have this crystallizing effect.
What Denmark and the Netherlands specifically submitted was that “the
process of the definition and consolidation of the emerging customary law took
place through [1] the work of the International Law Commission, [2] the reaction
of governments to that work and [3] the proceedings of the Geneva Conference”,
and that this emerging customary law became “crystallized in [4] the adoption of
the Continental Shelf Convention by the Conference”.127 In one sense, it could be
argued that each of these four stages is relevant solely to the creation of treaty
norms and that they have no bearing on customary law. But in reality, if State
practice is developing in parallel with the drafting of the treaty (stages 1-3), the
latter can influence the former (as well as vice-versa) so that the emerging cus-
tomary law is indeed consolidated and given further definition. Similarly for the
final stage - the adoption of a convention. Indeed, the longer the drafting and
negotiating process takes, the more scope there may be for State practice to
become crystallized in this way.128 The lengthy gestation of the Law of the Sea
Convention 1982 is an example of this process: in the thirteen years leading up to
125 ICJ Rep. 1969, pp. 3, 38, para. 61.
126 Ibid., pp. 38-39, para. 63. A similar willingness to countenance the possibility of crystallization
of an emerging norm of customary law in a particular instance can be seen in the Fisheries
Jurisdiction cases (Merits), ibid., 1974, p. 3 at pp. 22-23, paras. 51-52, and the Tunisia/Libya
Continental Shelf case, ibid., 1982, p. 18 at 38, para. 24.
127 Ibid., 1969, p. 38, para. 61.
128 Though it is questionable whether the metaphor of the formation of crystals is in fact entirely
apt: in chemistry, the beginning of crystallization can be located fairly precisely in time, whereas
it is not normally possible (or necessary) to be so precise about the emergence of a customary rule.
See Mendelson, 272 Collected Courses, 304-5.
its adoption, a number of States anticipated the outcome by unilaterally pro-

claiming exclusive economic zones, archipelagic waters and the like. 129
Strictly speaking, it may not even be crucial whether or not the treaty is wide-
ly ratified, though if it is not, this may give rise to the suspicion that States’
recognition of the rules concerned is not as firm as it may have seemed. But all
depends on circumstances and the reasons for their acceptance or non-accep-
tance of the treaty rules.
(b) But in any event, the holding in the North Sea Continental Shelf cases
that the equidistance rule had not in fact become a rule of customary law serves
as a warning that it is not lightly to be presumed that the adoption of a multi-
lateral convention (or the process leading up to it) will tip the balance.
(c) It is difficult to imagine that, in normal circumstances, “crystallization”

as described above could be accomplished by the drafting and conclusion of a
single bilateral treaty. So far as concerns a succession of bilateral treaties, again
there is certainly no presumption that they will have assisted in the crystalliza-
tion of an emerging norm. But it is possible that in certain circumstances this
could be the case, for instance where the bilateral treaties are the means of
adding precision to a general customary norm.130
D. Treaties giving rise to customary rules “of their own impact”.
27. In exceptional cases, it may be possible for a multilateral treaty to

give rise to new customary rules (or to assist in their creation) “of
its own impact” if it is widely adopted by States and it is the clear
intention of the parties to create new customary law. But such an
occurrence will be extremely rare, and is to be presumed not to
have occurred.
Commentary
(a) In the North Sea Continental Shelf cases, the Court considered the sub-
mission that a new rule of customary international law had emerged, partly
through State practice subsequent to, but outside, the Continental Shelf
129 Furthermore, though with all due caution, some statements made at the Third UN Conference
on the Law of the Sea can probably be interpreted as prises de position contributing to the evi-
dencing or development of customary law, and not merely as proposals or negotiating positions
regarding the projected conventional regime.
130 Consular conventions may be an example: see Baxter, 129 Collected Courses, 87. Instances
sometimes cited to support this proposition are bilateral treaties on the apportionment of the waters
of international watercourses, or on delimitation of the continental shelf or exclusive economic
zone. But given the variety of geographical circumstances, and the corresponding variety of the
detailed arrangements, it might be better to regard these agreements as more or less persuasive
illustrations of what States consider “equitable”, rather than as strictly normative.
Convention,131 and partly through Article 6 of the Convention having produced

this effect “of its own impact”.132 The use of the expression “and partly...” sug-
gests that the Court thought that this was a separate basis from that considered in
B above. And even though it rejected the submission on the facts (on the grounds
that the rule concerned was not of a “fundamentally norm-creating character”, and
that in any case the Convention had not yet received a sufficient, or sufficiently
representative, number of ratifications), it did not hold that a treaty was incapable
of producing customary international law “of its own impact”. Paragraphs (b) &
(c) below consider the issues of principle involved, and paragraph (d) evaluates
the reasons why the Court rejected the submission on the facts of the particular
case, in order to see what are the limitations on the doctrine.
(b) It is at first sight surprising that the Court was prepared even to entertain the
possibility of a treaty producing customary law “of its own impact”. As indicated
above, States who enter into a conventional obligation are essentially doing no
more than that, and it is rather hard to see why this should have any effect on cus-
tomary law. In a tantalizingly delphic indication of its reasoning, the Court said:
In so far as this contention is based on the view that Article 6 of the
Convention has had the influence, and has produced the effect, described,
it clearly involves treating that Article as a norm-creating provision which
has constituted the foundation of, or has generated a rule which, while
only conventional or contractual in its origin, has since passed into the
general corpus of international law, and is now accepted as such by the
opinio juris, so as to have become binding even for countries which have
never, and do not, become parties to the Convention. There is no doubt
that this process is a perfectly possible one and does from time to time
occur: it constitutes indeed one of the recognized methods by which new
rules of customary international law may be formed. At the same time this
result is not lightly to have been regarded as having been attained.
With respect, this explanation does not seem entirely coherent. In particular, it
seems to blur into the cases where a conventional norm is replicated in practice
outside the treaty regime (a subject dealt with in Section 24), which was not the
context in which the Court apparently now claimed to be considering the issue.133
Perhaps a better justification of what the Court was saying would be along the fol-
lowing lines. As stated in Section 18, the consent of States to a rule of customary
law, whilst not a necessary condition of their being bound, is a sufficient condi-
tion. In other words, if States indicate by any means that they intend to be bound
as a matter of customary law, being bound will be the consequence, so long as
131 See above, Part IV (B).
132 ICJ Rep.1969, pp. 3, 41-3, paras. 70-74 (emphasis added). This point is usually overlooked in
the literature and, indeed, the Court’s pronouncements on the point are far from clear.
133 See the italicized words in paragraph (a) above.
their intention is clear. They can evince that intention by a public statement, for
instance. That being so, there is no a priori reason why they cannot instead evince
it through, in conjunction with, or subsequent to, the conclusion of a treaty, pro-
vided that it is their clear intention to accept more than a merely conventional
norm. Cases where it can be shown that they intend to go beyond merely con-
ventional law will be rare, but - as the Court indicated without being specific -
they are not unknown. One such example is probably the prohibition of the threat
or use of force in Article 2(4) of the UN Charter, particularly bearing in mind
paragraph 6 of the same Article: “The Organization shall ensure that States which
are not Members of the United Nations act in accordance with these Principles so
far as may be necessary for the maintenance of international peace and security.”
It is also clearly the objective of at least parts of the Geneva Conventions of 12
August 1949 to create obligations extending beyond the parties.134 Again when,
in the Treaty of Peace of 1856, the act of the Congress of Vienna relating to the
navigation of international rivers was extended to the Danube, it was done in these
terms: “Que cette disposition fait désormais partie du droit public de l’Europe”.135
Rather than basing this explanation on consent, some might prefer to use the con-
cept opinio juris generalis; but the effect is the same: there is an acceptance or
recognition by States as a whole of the rule as one of customary, and not merely
conventional, international law. Cf. Section 16.
(c) It is, however, important to stress again that, in the Court’s words, “this
result [of a treaty giving rise to new customary law of its own effect] is not light-
ly to have been regarded as having been attained”; and it should be noted that the
Court failed either to give examples or properly to develop the point. Too much
emphasis should therefore probably not be placed on the few words it did utter.
And certainly, evidence of a more than merely contractual intention will not nor-
mally be present in a convention.
(d) Turning to the specific reasons why the Court considered that Article 6
of the Continental Shelf Convention had not in fact produced the effect con-
tended for, two grounds emerge.
(1) The ICJ questioned whether Article 6 was of a “fundamentally
norm-creating character”. This phrase does not seem to have any
antecedents in international law, and the Court was somewhat delphic
about what it had in mind. However, from the reasons it adduced for
reaching this conclusion, it can be inferred that what it meant was that the
rule did not have the degree of generality and compulsoriness that it
thought necessary. It pointed out that Article 6 was subject to reservations;
that the equidistance “rule” would not apply if “special circumstances”
were present; and that States were in any case free to agree to delimit in
134 See esp. common Article 3.
135 For further examples see Kosters, Les fondements du droit des gens (1925), p. 221.
accordance with any other principles or techniques of their choice. This

reasoning has been severely criticized, not only by dissenting Judges, but
also in the literature. The point about reservations has already been dis-
cussed in another context.136 So far as the “special circumstances” excep-
tion is concerned, it is not incompatible with something being a rule
(norm) that it is subject to exceptions. And the point about the primacy of
any agreement on delimitation does not seem, with respect, a very strong
one: most customary international rules are ius dispositivum, which means
that they can be derogated from by agreement even without this being
expressly stated. It is, accordingly, difficult to see the value in the Court’s
requirement that a treaty stipulation has to be of a “fundamentally norm-
creating character” before it can even qualify to become customary law
“of its own impact” - or at any rate to concur in its understanding of what
this requirement entails.137
(2) The other reason why the ICJ held that Article 6 of the Convention
had not created customary law “of its own impact” was that it was not
impressed by the quantity of ratifications and accessions which the
Convention had received in the nearly eleven years since its conclusion.
Even allowing for the existence of States to whom acceptance was not
open or who might not have any particular interest in the Convention (e.g.
land-locked States), “the number of ratifications and accessions so far
secured is, though respectable, hardly sufficient”. In fact, the number of
States who had ratified or acceded at that time was 39 out of a possible
total of over 130, of whom about 26 were landlocked. Even though some
Judges differed,138 the Court’s description of this as “though respectable,
hardly sufficient” seems reasonable; and in any case, this was a matter of
appreciation which it is unproductive to discuss further.139 The Court was
also surely right to add: “That non-ratification may sometimes be due to
factors other than active disapproval of the convention concerned can
hardly constitute a basis on which positive acceptance of its principles can
be implied: the reasons are speculative, but the facts remain.”
It might perhaps be objected that numbers are irrelevant, since ex hypoth-
esi one is not talking about the gradual build-up of customary law through
136 See Section 22.

137 Except, perhaps, that “soft law” provisions in a treaty would certainly not meet the test.
138 Judges Lachs and Tanaka, in particular, were critical of the Court’s failure to consider more
carefully the relative importance in this area of activity of the States which had ratified the
Convention: ICJ Reports, 1969, pp. 218, 227 and 171, 176 respectively.
139 In addition, the majority alluded to the fact that, although the short lapse of time since the con-
clusion and entry into force of the treaty was not in itself a bar, it was necessary 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...”.
the “traditional” process whereby the pool of States engaging or acquiesc-

ing in a practice gradually widens, but the creation of law through a treaty’s
“own impact”. However, the Court’s (presumed) reasons seem valid. In the
“normal” customary process, a few States cannot create law for all: the prac-
tice must be sufficiently widespread and representative.140 It cannot be oth-
erwise just because the vehicle is a treaty, for otherwise a small and unrep-
resentative group could create law for all.141
(e) It follows from the foregoing analysis that a single plurilateral or bilat-
eral treaty cannot instantly create general customary law “of its own impact”,
and it seems improbable that even a series of such treaties will produce such an
effect, save in (at most) the rarest of circumstances.142
PART V: THE ROLE OF RESOLUTIONS OF THE UN GENERAL

ASSEMBLY AND OF INTERNATIONAL CONFERENCES IN
THE FORMATION OF CUSTOMARY INTERNATIONAL LAW
1. The first draft of the 6th Interim Report of the Committee was prepared by
the Rapporteur and revised by the Chairman. It was circulated on 7 February
2000. Several members commented either on that draft, or on its equivalent in
the draft of this Part of the Final Report.
2. The legal effect of resolutions of the General Assembly has been much
debated. The Committee’s examination has been facilitated by a number of fac-
tors. First, its task was to study the role of such resolutions in the formation of
general customary law, and other questions, such as whether a State voting in
favour of a resolution asserting the existence of a rule of international law is
estopped from denying it are, strictly, beyond its scope, even if it has had to
140 See Sections 12-15.
141 Admittedly, the provisions of a convention (at least one open to all States) cannot even be
adopted for signature unless there is at least a simple majority of those present, and often a quali-
fied majority or even a consensus. However, when it comes to ratification it may be that only very
few (or even no) States are prepared to commit themselves, and this may (amongst other things)
cast doubt on whether they really do assent to the rules in question becoming part of customary law.
142 In the Nicaragua case (ICJ Rep.1986, p. 14) the ICJ seems to have been somewhat more ready
to derive customary law from certain multilateral and even plurilateral treaties than would be com-
patible with the foregoing Sections and Commentary. However, (a) the decision has been severely
criticised for this, both in dissenting opinions and in the opinions of a number of jurists; (b) the
Court seems to have been more cautious in later cases, especially the Nuclear Weapons Advisory
Opinion ( ibid. 1996, p. 226); (c) the parties in that case were broadly agreed that at any rate the
main treaty provisions were also part of customary law; and (d) in the final analysis, it may be that
the problem was less the fact of the (partial) derivation of customary rules from those treaties as
the Court’s failure to spell out properly the steps in its reasoning which would have warranted such
a conclusion. In short, the Judgment appears not to afford sufficient grounds for deviating from the
views expressed in the present Statement.
touch on some of these issues for the sake of completeness. Secondly, much of
what has been said in Part IV on the relation between treaties and customary law
applies, mutatis mutandis, to resolutions of intergovernmental conferences and
organizations. Thirdly, some key questions bearing on the present issues, such
as the role of consent and the definition of State practice, had already been dealt
with in previous Interim Reports, and now in Parts II and III. Finally, without
necessarily adopting all of their conclusions, note may be taken of the valuable
work already done on this subject by the Thirteenth Commission of the Institute
of International Law and in particular its Rapporteur, Prof. K. Skubiszewski.143
3. Sections 28-32 deal with the role in the formation of customary interna-
tional law of resolutions of the United Nations General Assembly, whilst Section
33 considers the role of resolutions of general international conferences.
4. Although discussion has centred on resolutions of the General Assembly,

resolutions of other universal intergovernmental organizations can also, in
theory, contribute to the formation of general customary international law in a
similar way.144
A: RESOLUTIONS OF THE UN GENERAL ASSEMBLY145
28. As explained in Sections 29-32, resolutions of the United Nations

General Assembly may in some instances constitute evidence of
the existence customary international law; help to crystallize
emerging customary law; or contribute to the formation of new
customary law. But as a general rule, and subject to Section 32,
they do not ipso facto create new rules of customary law.
Commentary.
(a) It should be noted at the outset that many General Assembly resolutions
are simply concerned with internal administrative arrangements or the articula-
tion of political wishes, etc.: they do not even purport to assert an existing or
desired legal obligation. It is only when a resolution claims (explicitly or by
implication) to enunciate binding rules that the question of customary law even
143 Report to the Institute of International Law: in Institute of International Law, 61-I Yearbook
(1985), 29-358, 62-II, ibid. (1987), 65-126.
144 However, given that the UN is the only universal organization with a general remit, the con-
tribution of such organizations will necessarily be more limited in any event. And in practice,
instances seem hard to find.
145 The question whether resolutions of a given international organizations can contribute to the
internal law of that organization is beyond the scope of the Committee’s work, which is confined
to general international law. Similarly, it has not explored whether or to what extent resolutions of
international organizations generally can contribute to the formation of a general customary law of
international organizations (if any).
arises, for only these resolutions pass the threshold test of being what one might
term “legal pronouncements”.
(b) One must also try to distinguish a statement in a resolution that it would
be desirable if the law were such-and-such (lex ferenda) from a statement that
the law is such-and-such (lex lata). Statements of the former kind can (if cir-
cumstances prove propitious) contribute to the crystallization or formation of
new customary law, but by definition they do not even purport to state existing
law. So far as concerns a statement that the law is (already) such-and-such, on
its face this is simply declaratory (evidence), as opposed to constitutive, of
existing law. However, the matter is in fact not so simple. Some of those voting
in favour of the resolution may not really consider that the law is already as stat-
ed, and it is quite common for States to assert that something is the law in the
hope that this will help to bring about the desired state of affairs. So an appar-
ently declaratory resolution may actually be, in whole or in part, for some or all
of its supporters, de lege ferenda. Moreover, as has previously been observed
(note 21), the reiteration of an existing customary rule is always in a sense con-
stitutive, for the customary process is a continuing one, and every new assertion
of a rule helps to strengthen it. Nevertheless, it is useful, for the purposes of
analysis and exposition, to distinguish the declaratory function from the consti-
tutive, even if in reality they are sometimes intertwined.146
(c) It is not intended to elaborate in detail on the idea that a resolution might
contribute to the crystallization of an emerging rule (i) because the concept was
examined more fully in Section 26 (in relation to treaties) and (ii), because in
the present context crystallization may amount to little more than a combination
of, or an intermediate stage between, the two other functions - evidencing exist-
ing, and contributing to the formation of new, customary international law.
(d) The way in which General Assembly resolutions can evidence or con-
tribute to the development of customary international law is similar to the way
in which treaties can do so (see Part IV), with one important difference: treaties
do at least lay down some legal obligation, even if it is “only” a conventional
one. In practice, this may facilitate the transformation from particular to gener-
al law, though (as noted in that Part) this is by no means automatic. By contrast,
General Assembly resolutions are not usually binding as such.147
146 Conclusions 4 and 5 (amongst others) of the Institute of International Law’s Thirteenth
Commission also make this distinction: 62-II Yearbook of the Institute of International Law (1987),
111-12.
147 The language of the Charter in its context, and particularly the contrast between the wording of
Chapters IV and VII, make it clear that Assembly resolutions are not normally intended to have
binding force. The drafting history of the Charter also tends to bear this out: at the San Francisco
Conference, a proposal that the General Assembly should be given the power to enact rules of inter-
national law which would be binding when approved by a majority of the Security Council was
29. Resolutions of the General Assembly expressly or impliedly

asserting that a customary rule exists constitute rebuttable evi-
dence that such is the case.
Commentary.
(a) The reference in this Section to express or implicit assertion is due to the
fact that a resolution may not in so many words assert that a rule exists, but
rather that a State or States are under the obligation or, as the case may be, at
liberty, to perform a certain act. This implies, but does not expressly allude to,
the existence of a corresponding rule.148
(b) That General Assembly resolutions can in appropriate circumstances
constitute evidence of existing customary law is not controversial. Thus, in its
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the
ICJ observed that resolutions “can, in certain circumstances, provide evidence
important for establishing the existence of a rule or the emergence of an opinio
juris”.149 Similarly, the representative of Italy in the General Assembly’s 6th
Committee observed that “general resolutions or declarations by the United
Nations ... could spell out ... existing customary rules”.150 A resolution can,
indeed, not merely reiterate an existing rule, but serve to clarify it or help to
crystallize an emerging rule. As Skubiszewski says, it “can become a means
whereby the law would be identified in a field where it seems uncertain or con-
troversial whenever other instruments, in particular, judicial decisions and
treaties, have not fulfilled that role. A carefully prepared resolution permits to
avoid [sic] many ambiguities which usually arise if the rule is to be stated on
the basis of an analysis that concentrates exclusively on the practice of individ-
ual States”151 Castañeda, referring to resolutions such as Resolution 95 (I)
defeated by 26 votes to 1: United Nations Conference on International Organization, Documents
(1945), III, 536-37, IX, 70. If its resolutions were legally binding, the General Assembly would be
a world legislature; and whether or not this is regarded as desirable, there is no evidence that inter-
national society is yet ready to establish one. In the South West Africa Voting Procedure case, Judge
Lauterpacht stated that “The absence, in general, of full legal binding force in the Resolutions of
the General Assembly is a proposition ... fundamental and ... rudimentary” - ICJ Rep. 1955, pp. 90,
92. Resolutions will not normally give rise to an estoppel against those voting for them - not least
because of a lack of reliance on them; and they cannot be regarded as “instant treaties” due to a
lack of intent to create treaty relations as well as the absence of the appropriate full powers. There
are, it is true, instances where the Charter does (exceptionally), give binding force to Assembly
decisions: for example, on the apportionment of the budget. The Assembly also has the power of
authoritative interpretation of its constituent rules. But none of these exceptions is pertinent to the
present topic. (For a fuller justification of these assertions and the others made in this footnote, see
Mendelson, 272 Collected Courses 347-82.)
148 Cf. Institute of International Law, 13th Commission, Conclusion 3, 62-II Yearbook of the
Institute of International Law (1987), 108-9.
149 ICJ Rep.1996, p. 226 at 254 (paragraph 70).
150 GAOR, 29th Sess., 6th Cttee, 1429th mtg., 5 Nov. 1974.
151 Institute of International Law, 61-I Yearbook (1985), 109.
endorsing the principles of the Nuremberg Charter, has observed that “the res-
olutions are binding, not in the sense that they created new obligations, but in
the sense that they are the expression and the legally irrefutable proof of gener-
al principles of law that are obligatory”.152
(c) Normally, a resolution expressly or impliedly declaring the law creates
only a rebuttable presumption that the law is indeed as declared. The first rea-
son is that the assertion is not opposable against those who voted against it,
those who were not present or those who were not even Members of the UN.153
Secondly, even in the case of those who voted in favour of the resolution, one
must examine more closely the precise language of the resolution and the cir-
cumstances of its adoption before one can be sure that the rule in question has
been accepted by those States.154 So far as concerns the language used, Virally
notes that it “always contains some indications on the will or intention of the
authors of the text”;155 but to understand it, some familiarity with the special
language of diplomacy is needed. For instance, as Skubiszewski has observed,
“normally the term ‘should’ is a sufficient indication that the rule is no more
than recommendatory. Hence the choice of ‘shall’ is usually significant”.156 It
is also the case that delegations sometimes feel able to cast a positive vote pre-
cisely because they believe that General Assembly resolutions do not have any
legal effect. Or again, whilst for some Members the resolution may be declara-
tory of existing law, for others it might be “merely” lex ferenda. So the circum-
stances of adoption need to be examined closely. It is necessary to examine, not
just who voted for the resolution as a whole, but also the explanations of vote
and the paragraph by paragraph votes of States. Thus, in the Texaco v. Libya
award, the sole arbitrator noted that, although Resolution 3201 (S-VI), the
Declaration on the Establishment of a New International Economic Order, was
adopted without a vote, statements made by representatives of the main capital-
exporting countries made it clear that they did not agree to the alteration of the
rules concerning compensation for expropriation etc. previously embodied in
Resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources.157
McDougal puts it in this way: “[I]n order to decide whether a UN statement
reflected an accurate description of what peoples’ expectations were concerning
the law, one needed to know several facts: Who voted for the statement? Who
voted against it? What was the relative and effective power of these voters?
How compatible is the asserted policy with past expectations? What followed
152 The Legal Effects of United Nations Resolutions (1969), 192-93.

153 It is less clear whether this is true of those who abstained
154 Cf. the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Rep.
1996, p. 226 at 254-55, para. 70.
155 Institute of International Law, 61-I Yearbook (1985), 177.
156 Ibid., 178.
157 (1977), 53 Int. Law Rep. 389, 489. He reached similar conclusions about resolution 3281
(XXIX) - the Charter of Economic Rights and Duties of States.
from the resolution? What were the expectations coming from other sources?
And so on.”158
In very exceptional circumstances, because of the degree of unanimity and
the clarity of the Assembly’s intention to lay down the law, the presumption that
the resolution represents the law may in effect be irrebuttable. This is dealt with
in Section 32.
(d) Pace the guarded suggestion by Judges Klaested and Lauterpacht in the
South West Africa Voting Procedure Advisory Opinion,159 repetition of the same
alleged rule in a series of resolutions does not of itself add to the legal obliga-
tion. Reiteration may serve to underline the importance attached by a majority
of Members to the alleged rule, and/or the emergence of an opinio juris: but all
depends on the circumstances. Even if there is, as some would say, an increased
obligation to consider the resolution in good faith, this does not amount to a
substantive obligation to comply. In its 1996 Advisory Opinion on the Legality
of the Threat or Use of Nuclear Weapons, the ICJ noted the reiterated resolu-
tions asserting the illegality of the threat or use of nuclear weapons, but in the
light of the opposition of nuclear-weapon States to these resolutions felt unable
to hold that they represented binding customary law.160
30. Resolutions of the General Assembly can (but do not necessarily)

constitute an historic (“material”) source of new customary rules.
Commentary.
As with treaties (see Section 24), there is no reason why a General Assembly
resolution should not provide the (or an) inspiration for the formation of a new
customary rule. This is uncontroversial. But as with treaties, there is no pre-
sumption that the “rule” embodied in the resolution will actually become part
of customary law subsequently: in each case it is a question of examining all of
the evidence.
31. Resolutions of the General Assembly can in appropriate cases

themselves constitute part of the process of formation of new
rules of customary international law.
Commentary.
(a) Section 30 is uncontroversial partly because the statements of any person
or association can provide the inspiration for State practice. A somewhat more
difficult question is whether the adoption of a resolution can itself form part of
158 Panel Discussion, “The Legal Status of General Assembly Resolutions”, Proceedings of the
American Society of International Law. 73rd Annual Meeting (1979), 324, 328-29.
159 ICJ Rep. 1955, p. 88 at 118-22.
160 ICJ Rep. 1996, p. 226 at 254-55, paras. 70 & 71.
the process, i.e. constitute a part of the formal source of law161 known as cus-
tomary international law. But before proceeding further, it should be noted that
the present Section is concerned only with the question whether resolutions can
contribute to the process of creating customary law, i.e. whether they can be
counted amongst the varying kinds of “building block” - in other words ele-
ments - from which a rule of customary law can be created.162 It therefore over-
laps with, but is distinct from, the question whether General Assembly resolu-
tions can of their own force ipso facto create new general customary law. The
latter issue is dealt with in Section 32 below.
(b) In principle, the present question - whether resolutions can contribute to

the formation of a new rule - can be answered in the affirmative. As indicated
in Part III, States can be bound by a rule if they can be shown to have consent-
ed to it or otherwise recognized it. It is not impossible for such consent or recog-
nition to be manifested by voting in favour of a resolution.163 Admittedly, the
language of the resolution and all of the circumstances of its adoption need to
be examined carefully before coming to the conclusion that such consent or
recognition exists; but in appropriate circumstances that may indeed be the case.
In the Nicaragua case (Merits) the ICJ, referring to Resolution 2625 (XXV), the
Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of the United
Nations, said that “The effect of consent to the text of such resolutions cannot
be understood as merely that of a ‘reiteration or elucidation’ of the treaty com-
mitment undertaken in the Charter. On the contrary, it may be understood as an
acceptance of the validity of the rule or set of rules declared by the resolution
by themselves”164 - which, in its context, means as rules of customary law. To
explain this phenomenon in traditional terminology, States voting in favour of
such resolutions are able thereby to provide the subjective element165 of cus-
tomary law. How much weight is attributed to this depends, not only on the
terms of the resolution and the whole process of its adoption, but also on any
other supporting or conflicting statements or practice.166
(c) Some commentators, whilst accepting that (voting for a) General

Assembly resolution can supply the subjective element, also require the mani-
festation of the objective element - State practice. In Section 4, this Statement
expresses the view that verbal acts (e.g. protests and voting for General
161 Or, better, law-making process.
162 Other building blocks being acts of State practice of various kinds, and (to the extent appropri-
ate) indications of State will or opinio juris: see Parts II and III.
163 Cf. the comment of Schachter: “[R]esolutions are also a means by which States may express an
intent to be bound (with legal effect)...”: Institute of International Law, 61-I Yearbook (1985), 284.
164 ICJ Reports, 1986, p. 14 at pp. 99-100 (para. 188); emphasis added.
165 See Part III.
166 Though see also Section 19.
Assembly resolutions), can constitute a form of State practice. Indeed, for States
without the material means for concrete activity in the field in question (e.g.
States lacking weapons of mass destruction, or landlocked States), verbal acts
may be the only form of practice open to them. However, when considering
whether the requirements for the formation of a customary rule have been met,
it should be realized that one is not dealing with a large quantity of practice plus
a large number of expressions of consent or belief, but simply with a large num-
ber of expressions of consent or belief, the true significance of which will
depend on the circumstances. And certainly if (as some do, but as the
Committee has not found useful167), one treats the adoption of the resolution as
the practice of the Organization, it would also be a form of double counting to
regard that adoption both as an analogue of State practice (the practice of the
Organization) and also to treat the separate affirmative votes of each Member
as further adding to its significance.
(d) It could be argued that a resolution without accompanying or corrobora-

tive practice may not be very convincing: to put it crudely, talk is cheap. But
this objection belongs more to Section 32 (where it will be examined). In con-
sidering whether the adoption of General Assembly resolutions can form part of
the process of customary law creation, it should also be borne in mind that there
is no requirement that a specific expression of opinio juris should be accompa-
nied by simultaneous practice.168
32. Resolutions accepted unanimously or almost unanimously, and

which evince a clear intention on the part of their supporters to lay
down a rule of international law, are capable, very exceptionally, of
creating general customary law by the mere fact of their adoption.
In the event of a lack of unanimity, (i) a failure to include all repre-
sentative groups of States will prevent the creation of a general rule
of customary international law (see Section 14); and (ii) even if all
representative groups are included, individual dissenting States
enjoy the benefit of the persistent objector rule (see Section 15).
Commentary.
(a) Unlike Section 31, which was merely concerned with whether General
Assembly resolutions can be legitimately regarded as contributing elements
from which - along with other elements - a customary rule might emerge, the pre-
sent Section is concerned with the more controversial question whether General
Assembly resolutions can ever of themselves and ipso facto create such law.
167See Section 11, Commentary, paragraph (b).
168If the subsequent practice contradicts the resolution, a customary rule will not be created
because the requirement of uniformity will not have been met: see Section 13.
(b) The phrase “lay down [a rule of international law]” in this Section is
deliberately chosen for its ambiguity. The phrase can mean declaring existing
law, or it can mean making new law. If the conditions set out in this Section are
met, it makes no practical difference whether the resolution purports (or is
thought by some or all of those voting for it) to declare existing law on the one
hand, or to establish a new rule on the other.
(c) It must be stressed that it will be extremely unusual for the condition to be
met that there exists a clear intention of the parties to the resolution that it lays
down a rule of law. The intentions of governments may be hard to determine. As
previously indicated, one cannot simply take a resolution at face value: the lan-
guage and the process by which it was adopted, as well as the wider context, must
be carefully examined. Unanimity or a “consensus” does not necessarily establish
such an intention: on the contrary, the price of obtaining unanimity or the absence
of objection may be that the “obligation” becomes so watered down as not to con-
stitute a legal one, or so ambiguous that it means such different things to differ-
ent States that it is devoid, or almost devoid, of legally definable content.
Furthermore, it is notable that, even in the case of unanimous resolutions on outer
space, which was largely “virgin territory” before the adoption of those resolu-
tions and therefore apparently a suitable candidate for the creation of new law,
Cheng concluded, after a careful analysis of the relevant resolutions, that there
was not a sufficiently widespread or representative agreement that their content
should be, as he put it, “instant” customary law.169 This justifies the use of the
term “very exceptionally” in this Section. However, very occasionally the condi-
tion may be met, as in the case of the Declaration on Friendly Relations, accord-
ing to the Judgment of the ICJ in the Nicaragua case (Merits).170
(d) The title of the resolution may offer a clue of the intentions of those vot-
ing for it, but it is no more than an element to be taken into consideration. The
General Assembly sometimes attaches a special name, such as “Declaration”, to
its most solemn pronouncements: e.g. the Universal Declaration of Human
Rights, the Declaration on the Granting of Independence to Colonial Countries
and Peoples, the Declaration on Friendly Relations, etc. But there is no magic
in the label.171 On the one hand, there may not be sufficient, or sufficiently
widespread, acceptance of a particular part of a Declaration (or even of the
whole Declaration) as law. On the other hand, even a resolution which does not
169 “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?” 5 Indian
Journal of International Law (1965), 23; reprinted in Cheng (ed.), International Law: Teaching and
Practice (1982), 273. See also note 172 below.
170 See further Section 19 above.
171 Cf. Conclusion 12 of the Institute of International Law’s 13th Commission, 62-II Yearbook of
the Institute of International Law (1987), 110. For a very full discussion of the subject, in addition
to the writings already cited, see Sloan, “General Assembly Resolutions Revisited (Forty Years
Later)”, 58 British Year Book of International Law (1987), 39. (This is not necessarily to endorse
all of the views expressed in that article.)
bear the title “Declaration” or something equally sonorous may nevertheless (in
whole or in part) represent the consensus of the whole community as to the law.
(e) It might be argued that “instant customary law”172 is a contradiction in

terms: the very concept of customary law normally requires a certain amount of
practice and the lapse of at least some time. It might further be suggested that it
is too easy for States to be able to make law without the necessary discipline of
having to back up their words with deeds and test their aspirations against real-
ity (cf. the Commentary on Sections 3 and 4). Against the first of these objec-
tions - the contradiction inherent in the concept of “instant customary law” - the
response might perhaps be made that this is simply a matter of terminology: the
essence of customary law is that it is the unwritten manifestation of the will of
the international community as a whole, and the fact that, in the past, this has
usually occurred through the slow accretion of practice is not the essential fea-
ture: in short, one should not be unduly attached to labels. To the second objec-
tion it might perhaps be retorted that although it is easy to make statements on
the spur of the moment, without any real intention to take them seriously or for
them to have legal consequences, this is not invariably the case. A formal
protest, for instance, is a verbal act, but must be taken seriously in the context
of the formation of customary law; similarly, a formal prise de position by a
government is not “mere talk”. All depends on the context. Accordingly, if gov-
ernments choose to take their formal stance by means of a General Assembly
resolution, there is no a priori reason why this should not count. To put it in
another way, Section 18 has already stated that if it can be shown that a partic-
ular State or States have consented to a particular rule, at any rate those States
will be bound by it. So it would seem that, if it can be shown that States as a
whole really did consent to the rule set out in the resolution, they would be
bound.173 The word “if” in the preceding sentence is important, however. Given
that General Assembly resolutions are not, in principle, binding174, something
more is needed to establish this consent than a mere affirmative vote (or failure
to oppose a resolution adopted by consensus). It must also be recognized that
not all authorities would accept that it is possible - even in exceptional cases -
to dispense entirely with the need for at least some “real” practice.175
(f) The reason for requiring unanimity or near unanimity (or a true consensus)
172 The phrase is taken from an important article by Cheng, cited at n. 169 above. It is important
to notice the question mark in the title, and that, although the two key resolutions in question were
adopted unanimously, in his view they were merely pacta de contrahendo and did not amount to
instant customary law. This despite the fact that, for him, practice is not the essential and invari-
ably indispensable element in customary law: rather, opinio juris is.
173 Mutatis mutandis, the same is true if they generally believe the rule to be law: see Section 16.
174 With the exception of decisions regarding matters internal to the Organization, etc. The excep-
tion is of no significance in the present context.
175 On this last point, see the last part of paragraph (f) below.
is as follows. Whilst the consent of individual States might (if the requisite con-
ditions are met) bind those States, and the consent of several of them may there-
by produce particular customary law,176 the normal rules for the formation of
general customary law require widespread and representative acceptance of the
rule. (See Sections 12-15). The second sentence of the present Section reflects this
and the further fact that, even if all representative groups did accept the resolu-
tion, individual dissenters would presumably be entitled to avail themselves of the
persistent objector rule described in Section 15. Admittedly, in the more tradi-
tional customary process, the requirement of widespread and representative prac-
tice could be satisfied by less than unanimity or near-unanimity: a rule can come
into being through the participation of far from the totality of States, provided that
no important actors or groups of actors in the field in question dissent. See
Sections 14 and 15. But in the case of General Assembly resolutions, the fact that
almost all existing States are represented in the organ and that virtually all inter-
ested parties have the opportunity to register their dissent or hesitation means that,
if they do so in any numbers, the requirement of widespread and representative
approval will probably not have been met. Perhaps another reason why those
commentators who are ready to countenance (at least in theory) the possibility of
“instant customary law” tend to assume (almost without thinking about the rea-
son) that the resolution needs to have been adopted unanimously or almost unan-
imously is the following. Some scholars, especially in the West, have expressed
concern that a simple (or even a two-thirds) numerical majority in the General
Assembly can easily outvote the major powers. And more generally, however the
majority is constituted, it would be in a position to impose its version of interna-
tional law on a reluctant minority. In other words, if majority resolutions could
constitute instant customary law, the General Assembly would have become the
world legislature, and the sovereignty of individual States diminished. But ex
hypothesi these objections disappear if the resolution is unanimous. If all States
deliberately choose, by means of a resolution, to be bound, none can claim that its
interests are being disregarded or overridden.177 Admittedly, this argument does
not meet the possibility that non-Members might object, or that the resolution may
be only nearly unanimous. But in that case, it is submitted, the interests of dissi-
176 Of which local and regional customary law are but two manifestations.
177 The 13th Commission of the Institute of International Law put this somewhat differently.
Conclusion 13 asserts that “A law-declaring resolution, adopted without negative vote and abstention,
creates a presumption that the resolution contains a correct statement of law. That statement is subject
to rebuttal” (emphasis added): 62-II Yearbook of the Institute of International Law (1982), 110. (Cf.
Conclusion 21, which appears to make all evidence contained in “law-declaring” resolutions rebut-
table.) However, in the present Committee’s view, if the General Assembly unanimously evinces a
clear intention to declare existing law, then in these circumstances rebuttal will not be open to
Members, or at any rate will be extremely difficult. Non-members of course have the right to question
this evidence. The Institute’s Conclusion 14 goes on to say that, where a rule of customary law is
(merely) emerging or there is still some doubt as to its status, a unanimous resolution can consolidate
the custom and remove doubts which might have existed. Significantly, the Commission nowhere con-
cludes that a unanimous resolution can ipso facto create completely new international law.
dents can be adequately protected by the application of the persistent objector

rule.178 , 179 Unanimity also has another consequence. If all (or virtually all) UN
Members genuinely agree on a rule (by whatever means), there is very little scope
left for contrary practice. Hence it becomes easier to conclude that a new cus-
tomary rule has come into being, without having to wait and see how the practice
develops. This is perhaps particularly true if the resolution enters virgin legal ter-
ritory.180 See also Section 19.
B: RESOLUTIONS OF GENERAL INTERNATIONAL CONFER-

ENCES.
33. Mutatis mutandis, the same principles apply to the resolutions of
international conferences of a universal character as apply to res-
olutions of the UN General Assembly.
Commentary.
(a) For the avoidance of doubt, it should be stressed here that it is inter-gov-
ernmental conferences which are envisaged here, not those of non-governmen-
tal bodies.
(b) This Section is confined to conferences which are open to all States (here
described as “international conferences of a universal character”). Resolutions
of more restricted conferences may (in appropriate circumstances) provide
rebuttable evidence of the opinions of their participants as to the content of
existing customary law, or even help to create new particular customary law for
those voting in favour; but the lack of generality of participation will prevent
such resolutions from becoming general law (unless the participation is never-
theless sufficiently widespread and representative and/or subsequent practice
widens the scope of the rule’s recognition and application).
(c) As with other State acts, the resolutions of international conferences are
capable, in appropriate circumstances, of evidencing existing customary inter-
178 Of course, if the objector(s) are important actors in the field in question, their opposition will
completely block the resolution’s being regarded as representing general customary law. This was
the fate, for instance, of the relevant parts of General Assembly resolution 3201 (S-VI), the
Declaration on the Establishment of a New International Economic Order, in the Texaco arbitra-
tion: see text accompanying n. 157 above.
179 Indirectly, the Nuclear Weapons Advisory Opinion may provide support for the view expressed
here. For paragraphs 70 and 71 of the Opinion seem to assume that, were it not for the negative
votes and abstentions, the relevant resolutions could well have been regarded as laying down the
law: ICJ Rep. 1996, p. 226 at 254-55.
180 Cf. paragraph 1 of Conclusion 19 of the Institute of International Law’s 13th Commission: “A
resolution can serve as a supplementary means for the determination of a rule of international law
particularly where evidence of State practice or of the opinio juris is not otherwise readily avail-
able” - 62-II Yearbook of the Institute of International Law (1982), 111 (emphasis added).
national law. The circumstances in which they will do so are essentially the
same as those applying to resolutions of the General Assembly: see Sections 29
and 32.
(d) Equally, there is no difficulty about the idea of resolutions international

conferences being the material/historic source of (i.e. providing the inspiration
for) State practice which develops into a rule of customary law: see Section 30.
(e) Sections 31 and 32 apply in principle (mutatis mutandis) to the question

whether resolutions of international conferences can themselves contribute to
the formal creation of a new rule of customary law, or even establish one ipso
facto. In taking into account all relevant circumstances, however, there is one
important difference which should be noted. Most (though admittedly not all)
inter-governmental conferences are convened for the purpose of concluding a
treaty (or at least for the purpose of considering whether to conclude one). If
there is too little consensus for the alleged rule to be embodied in a treaty, a for-
tiori it must be questionable whether there is enough for the creation of a rule
of general customary law. (It is not suggested that this is an irrebuttable pre-
sumption: it may be, for instance, that the 1972 Stockholm Conference on the
Human Environment established, or helped to establish, certain principles of
customary international environmental law even though it did not directly result
in a treaty.) However, this is certainly a factor which must be taken into account:
and if the conference concludes a treaty, but the content of the resolution is not
included in it, it must again be open to question how far the resolution can be
said to represent customary law.

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INTERNATIONAL LAW ASSOCIATION

LONDON CONFERENCE (2000)

Professor M. H. Mendelson, Q.C. (UK): Chairman

FINAL REPORT OF THE COMMITTEE

STATEMENT OF PRINCIPLES APPLICABLE TO THE

3. A further complication is an evolution in the ways in which customary

4. The Sections (and accompanying Commentary) which follow are not

perhaps understandably, in view of the difficulties just alluded to. However, it

5. Another consequence of this Statement not being a draft convention or

7. In studying the customary process, it is necessary to be aware of the issue

8. As its title indicates, the Committee’s remit is limited, and it is important

9. The International Court of Justice has on several occasion underlined the

(b) Part of the confusion may be caused by a failure to distinguish between

This gestalt approach may perhaps somewhat oversimplify a more com-

(b) Certain features of this working definition should be mentioned.

(1) It underlines that it is the actions of States in their international

(3) It indicates that the customary law process is a continuing one: it

it is not usually necessary to demonstrate the existence of the subjective

(i) In this Statement, “rule(s)” includes principles.

(ii) “(Customary) rule” or “rule of customary (international) law” in

(iii) In this Statement, “customary (international) law” refers to the

(vi) In this Statement, “mere usage” or “(mere) comity” means con-

(vii) In this Statement “State(s)” includes, where appropriate, inter-

(viii) In this Statement, the term “source(s) of law” is used to denote

PART II: THE OBJECTIVE ELEMENT: STATE PRACTICE

A. WHAT TYPES OF ACT CONSTITUTE STATE PRACTICE?

3. When defining State practice - the objective element in customary

Some statements may nevertheless be more usefully regarded as expressions

5. Acts do not count as practice if they are not public.

6. In appropriate circumstances, omissions can count as a form of

33 PCIJ Ser. A, No. 10, p. 28.

B. THE “STATE” FOR THE PURPOSE OF IDENTIFYING

7. Acts of individuals, corporations etc. do not count as State practice,

8. The activities of territorial governmental entities within a State

9. The practice of the executive, legislative and judicial organs of

(e) It can happen, particularly in countries where there is a separation of pow-

10. Although international courts and tribunals ultimately derive

11. The practice of intergovernmental organizations in their own

(b) Organs of international organizations, and notably the UN General

C. THE DENSITY OF THE PRACTICE.

(e) On the question whether UN General Assembly resolutions are capa-

13. For State practice to create a rule of customary law, it must be

(The French text renders the requisite practice as “fréquente et pratiquement

(b) So far as concerns internal uniformity (or consistency), in the following

Another much-cited example is the Asylum case. Here, Colombia claimed

The facts brought to the knowledge of the Court disclose so much

However, over time inconsistencies may disappear.57 And, as with internal

(ii) Subject to the rules about persistent objection in Section 15

(b) It follows, also, that newly-independent States or those new to a partic-

(c) Supporters of the voluntarist approach, which regards the consent of

(b) There is fairly widespread agreement that, even if there is a persistent

of State practice in support,70 though it is not as copious as one might at first

PART III: THE SUBJECTIVE ELEMENT

3. As will be seen in the remainder of this Part, the subjective element

already achieved an appropriate level of generality that such a belief is likely to

5. Broadly stated, therefore, the purport of these Sections is that it is not

Those special, and comparatively unusual, cases do not provide guidance on