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Custom on a Sliding Scale

Published online by Cambridge University Press:  27 February 2017

Frederic L. Kirgis Jr.
Frederic L. Kirgis Jr.*
Affiliation:
Washington and Lee University School of Law
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Extract

Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law:

  1. (a) concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;

  2. (b) continuation or repetition of the practice over a considerable period of time;

  3. (c) conception that the practice is required by, or consistent with, prevailing international law; and

  4. (d) general acquiescence in the practice by other States.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 146 - 151
Copyright
Copyright © American Society of International Law 1987

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References

1 [1950] 2 Y.B. Int’l L. Comm’n 26, UN Doc. A/CN.4/SER.A/1950/Add.1.

2 See especially North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 41–44 (Judgment of Feb. 20).

3 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

4 Id. at 101–02, paras. 191–92.

5 GA Res. 2625, 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970).

6 1986 ICJ Rep. at 106–07, paras. 202–04.

7 Id. at 107–08, para. 205.

8 Id. at 108–09, paras. 206–08.

9 The Declaration has often been cited in subsequent declarations and resolutions. This is evidence of state practice in one sense, but it does not reveal how governments actually act. For discussion of the Declaration’s effect as custom, see, e.g., Humphrey, The Universal Declaration of Human Rights: Its History, Impact and Juridical Character, in Human Rights: Thirty Years After The Universal Declaration 21, 32–37 (B. Ramcharan ed. 1979). In United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 42 (Judgment of May 24), the Court treated the fundamental principles in the Universal Declaration as legal norms standing on their own and capable of being applied to state-supported conduct.

Another explanation of the Universal Declaration’s normative significance is that it serves as an interpretation and elaboration of the references to human rights in the UN Charter. See, e.g., the official Canadian view in 1980 Canadian Y.B. Int’l L. 326.

10 1969 ICJ Rep. 3.

11 1927 PCIJ, ser. A, No. 10.

12 Fisheries Jurisdiction Case (UK v. Ice.; FRG v. Ice.), 1974 ICJ Rep. 3 and 175 (Judgments of July 25).

13 The Court’s holding on the merits has been overtaken by subsequent state practice. What is important here is the Court’s methodology in a case that involved armed confrontation on only a small scale, between states that were normally allies.

14 See, e.g., Lauterpacht, H., The Development of International Law by the International Court 380 (1958)Google Scholar; Parry, C., The Sources and Evidences of International Law 62 (1965)Google Scholar; Brownlie, I., Principles of Public International Law 8 (3d ed. 1979)Google Scholar; Baxter, Treaties and Custom, 129 Recueil des Cours 25, 69 (1970 I). Cf. Jenks, C., The Prospects of International Adjudication 253–54 (1964)Google Scholar; de Visscher, C., Theory and Reality in Public International Law 441 n.19 (rev. ed. 1968)Google Scholar. To the contrary, see Akehurst, Custom as a Source of International Law, 47 Brit. Y.B. Int’l L. 1, 32–34 (1974–75).

15 See The S.S. Wimbledon, 1923 PCIJ, ser. A, No. 1, at 25; Nottebohm Case (Liechtenstein v. Guat.), Second Phase, 1955 ICJ Rep. 4, 22 (Judgment of Apr. 6). See also Dissenting Opinions of Judges Lachs and Sørensen in the North Sea Continental Shelf Cases, 1969 ICJ Rep. at 218, 231, and 241, 246–47.

16 See C. Jenks, supra note 14, at 254; cf. Sørensen, M., Les Sources du droit International 110–11 (1946)Google Scholar. This probably explains the readiness of international tribunals to accept, as custom, the major substantive provisions of the Vienna Convention on the Law of Treaties. See Sinclair, The Vienna Convention on the Law of Treaties: The Consequences of Participation and Nonparticipation, 78 ASIL Proc. 271, 273 (1984), for a partial list of decisions. Some of the principles set forth in the Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18), may also be explained in this way. Examples are the principle that a baseline does not have to follow all the contours of the coast and the factors that determine the validity of straight baselines.