Customary International Law

CUSTOMARY INTERNATIONAL LAW
Customs in international law can generally be defined as rules developed by the practice of states, which rules the states concerned follow because they believe there is a rule of law requiring them to behave as such. Rebecca Wallace (1997) defines it as “a practice followed by those concerned because they feel legally obliged to behave in such a way” (p. 172). Thus, for there to exist a rule of customary international law, there must be a practice that is followed by the generality of states in the belief that there is a rule of law requiring such practice. It is important to distinguish custom from other rules that states may follow not out of any feeling of a legal obligation, such as behavior undertaken out of courtesy, friendship or convenience. The difference between customs and these other norms is the fact that custom is derived from two elements: (a) a material element (state practice) and (b) a psychological element (opinio juris). The material element is derived from the practice and behavior of states whereas the psychological element is the subjective conviction held by states that the behavior is question is necessitated by a rule of law and not discretionary (Villiger, 1985).
State practice includes any act, articulation or other behavior of a state that discloses the state’s conscious attitude with respect to its recognition of a rule of customary international law. The International Law Commission (ILC) in 1950 listed the
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