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42-605: The manual is a legally recognized document but is not binding on states. The Manual is a codification of customary international law , an integration of existing legal standards for naval conflict with the Geneva Conventions of 1949 and Protocol I of 1977. The Manual is broken into six parts that each discuss a different section of the law, these being: The San Remo Manual was cited by the Israeli government to justify its boarding and seizure of ships trying to break

84-734: A French citizen for acts committed on the high seas (outside of Turkey's territory). France presented a number of historical examples to demonstrate that the state of nationality or the state whose flag the ship had flown had exclusive jurisdiction in cases such as this. However, the Permanent Court of International Justice (a precursor to the ICJ) declared that the evidence showed merely that "States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having

126-545: A certain way, it is exponentially more difficult to prove why it did not act. For this reason, the necessity of demonstrating that a behavior was prompted by a sense of legal obligation makes it particularly difficult for customary international law to develop around the prohibition of a practice. One important case in the development of modern customary international law theory is the Lotus case , in which France attempted to protest Turkey 's assertion of criminal jurisdiction over

168-417: A customary law prohibiting their use existed. Moreover, it wrote that the non-use of nuclear weapons could actually provide evidence of their "use" as a deterrent force. This logical framework makes sense for existing norms of customary international law, but it becomes problematic in the context of new or emerging customary rules. If a practice is not currently governed by customary international law, then it

210-462: A dispute with any nation that has not affirmed the "silence implies consent" principle, any invocation of the "silence implies consent" principle involves an appeal to custom, such that if that nation does not espouse the broader premise of acknowledging the existence of customary international law, such an appeal will depend on circular reasoning ("customary international law is binding because silence implies consent, and silence implies consent because

252-598: A duty to abstain would it be possible to speak of an international custom." This reasoning was cited approvingly in the North Sea Continental Shelf cases , which similarly declined to find the existence of customary law regarding the proper method to delimit territorial claims to the continental shelf extending from the coastline of states bordering the North Sea. The ICJ also declined to find evidence of customary international law in an opinion on

294-535: A general practice accepted as law." Article 38(1)(b) of the Statute of the International Court of Justice, has recognized International Custom as evidence of general practice accepted as law. Thus, general practice demonstrates custom, and not vice versa. In order to prove the existence of customary rule, it is necessary to show that there exists a 'general practice' which conforms to the rule and which

336-404: A given practice for reasons other than a sense of legal obligation (e.g. political expediency, economic gain, courtesy, etc.); next, States reinforce the practice by engaging in it or making claims based upon it, creating loops of reciprocity and reliance based on expectations that the practice will continue; finally, as these relationships expand in number and complexity, they eventually harden into

378-548: A matter of customary law before they were codified in the Hague Conventions of 1899 and 1907 , Geneva Conventions , and other treaties. However, these conventions do not purport to govern all legal matters that may arise during war. Instead, Article 1(2) of Additional Protocol I dictates that customary international law governs legal matters concerning armed conflict not covered by other agreements. Generally, sovereign nations must consent in order to be bound by

420-500: A particular act. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation. Article 38(1)(b) of the Statute of the International Court of Justice accepts "international custom" as

462-419: A particular treaty or legal norm. However, international customary laws are norms that have become pervasive enough internationally that countries need not consent in order to be bound. In these cases, all that is needed is that the state has not objected to the law. However, states that object to customary international law may not be bound by them unless these laws are deemed to be jus cogens . However, in

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504-732: A rule of law requiring it ... The States concerned must therefore feel that they are conforming to what amounts to a legal obligation." The Court emphasised the need to prove a "sense of legal duty" as distinct from "acts motivated by considerations of courtesy, convenience or tradition". This was subsequently confirmed in Nicaragua v. United States of America . The recognition of different customary laws can range from simple bilateral recognition of customary laws to worldwide multilateral recognition. Regional customs can become customary international law in their respective regions, but do not become customary international law for nations outside

546-516: A series of U.N. resolutions had been issued "that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons," and argued that this signified "the existence of a rule of international customary law which prohibits recourse to those weapons." Nonetheless, the ICJ wrote that states possessing nuclear weapons had almost always objected to these resolutions, which strongly suggests that those states did not believe that

588-463: A significant number of States and not be rejected by a significant number of States." A marker of customary international law is consensus among states exhibited both by widespread conduct and a discernible sense of obligation. The two essential elements of customary international law are state practice and opinio juris , as confirmed by the International Court of Justice in the Legality of

630-564: A small group of states. States are typically bound by customary international law, regardless of whether the states have codified these laws domestically or through treaties. A peremptory norm (also called jus cogens , Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a non-derogable norm. These norms are rooted in natural law principles, and any laws conflicting with it should be considered null and void. Examples include various international crimes ;

672-399: A source of law, but only where this custom is 1) "evidence of a general practice," (the objective component) (2) "accepted as law." (the opinio juris or subjective component) Thus, for example, while it may be observed that heads of state virtually always shake hands when they first meet, it is highly unlikely that they do so because they believe that a rule of international law requires it. On

714-741: A state violates customary international law if it permits or engages in slavery , torture , genocide , war of aggression , or crimes against humanity . Jus cogens and customary international law are not interchangeable. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable. Some international customary laws have been codified through treaties and domestic laws, while others are recognized only as customary law. The laws of war , also known as jus in bello , were long

756-416: A variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include

798-506: A way that escalated the potential for conflict. Paragraph 67 of the Manual states that belligerents may attack merchant vessels flying the flag of neutral states outside of neutral waters if they "are believed on reasonable grounds to be carrying contraband or breaching a blockade, and if after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture". Paragraph 146 states that it

840-495: A way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it." Nonetheless, a state's motives can change over time, and that it is not necessary that opinio juris be a significant impetus for each instance of action. As Judge Lachs wrote in a dissenting opinion in the North Sea Continental Shelf cases, "At successive stages in the development of

882-483: Is a state practice that "appears to be sufficiently widespread, representative as well as consistent" showing that a significant number of states have used and relied on the rule in question and the concept has not been rejected by a significant number of states, (2) states were motivated by a belief that they were legally compelled to accept the legitimacy of the rule in question because customary international law obligated them to do so ( opinio juris ) . In 1950,

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924-439: Is accepted as law. Customary international law "consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way". It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (state practice); Acts must occur out of sense of obligation ( opinio juris ); Acts must be taken by

966-672: Is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice , jurists , the United Nations , and its member states to be among the primary sources of international law . Many governments accept in principle the existence of customary international law, although there are differing opinions as to what rules are contained in it. A rule becomes customary international if two requirements are met: (1) There

1008-499: Is illogical to inquire into a state's beliefs about the legality of engaging in or abstaining from that practice, i.e., to ask whether it believed that its practice was in compliance with a law that does not yet exist. This paradox may be resolved to some extent by the idea of "crystallization" of customary international law, in which practice and legal obligation evolve jointly and eventually ripen into law. Under one model, this process occurs in three stages: first, some States engage in

1050-554: Is permitted to capture neutral merchant vessels outside neutral waters if they are engaged in any of the activities referred to in paragraph 67. Further, while article 102 of the San Remo Manual states that a blockade is prohibited if it has the sole purpose of starving the civilian population or denying it other objects essential for its survival, the Inquiry panel found that there was a legitimate military objective (to prevent

1092-444: Is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice. A situation where opinio juris would be feasible is a case concerning self-defense . A condition must be met where the usage of force is limited to the situation at hand. The act of striking an attacker may be done with legal justification; however, legal territory limits

1134-417: Is the belief that an action was carried out as a legal obligation . This is in contrast to an action resulting from cognitive reaction or behaviors habitual to an individual. This term is frequently used in legal proceedings such as a defense for a case. Opinio juris is the subjective element of custom as a source of law , both domestic and international , as it refers to beliefs. The other element

1176-682: The Gaza blockade (see Legal assessments of the Gaza flotilla raid ), as well as by the United Nations Human Rights Council 's international fact-finding mission to support their finding that the seizure was illegal. In 2011 the UN-Secretary-General's Panel of Inquiry came to the conclusion that the Gaza blockade had been "imposed as a legitimate security measure", and that the flotilla should not have acted in

1218-608: The International Law Commission listed the following sources as forms of evidence of customary international law: treaties, decisions of national and international courts, national legislation, opinions of national legal advisors, diplomatic correspondence, and practice of international organizations. In 2018, the Commission adopted Conclusions on Identification of Customary International Law with commentaries. The United Nations General Assembly welcomed

1260-422: The U.S. Navy in earlier conflicts, and the opinions of legal treatise writers. Finally, the context, circumstances, and manner in which the state practice is carried out can also be used to infer the existence of opinio juris. As the ICJ stated in the North Sea Continental Shelf cases of 1969, "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such

1302-533: The Conclusions and encouraged their widest possible dissemination. The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "a general practice accepted as law". This is generally determined through two factors: the general practice of states, and what states have accepted as law ( opinio juris sive necessitatis ). This means that many states need to engage in

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1344-465: The Threat or Use of Nuclear Weapons . In relation to the psychological element that is opinio juris , the International Court of Justice further held in North Sea Continental Shelf that "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

1386-428: The [customary] rule the motives which have prompted States to accept it have varied from case to case. It could not be otherwise. At all events, to postulate that all States, even those which initiate a given practice, believe themselves to be acting under a legal obligation is to resort to a fiction, and in fact to deny the possibility of developing such rules." As difficult as it can be to prove why an actor did act in

1428-401: The acceptability of such a claim. Even in this case, the usage of force must be acceptable to the conditions of the environment, the attacker, and the physical conditions of the people involved, as well as any weapons or tools used. In international law , opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obligated to do

1470-532: The fact that silence implies consent is one aspect of customary international law"). The Statute of the International Court of Justice acknowledges the existence of customary international law in Article 38(1)(b), incorporated into the United Nations Charter by Article 92: "The Court, whose function is to decide in accordance with international law such as disputes that are submitted to it, shall apply ... international custom, as evidence of

1512-812: The influx of weapons). However, the report also noted that Israel's use of force against the passengers was excessive, and recommended that Israel immediately report its use of force to the United Nations Security Council so it could find a permanent solution, as is required of Israel by the United Nations Charter. Customary international law Customary international law consists of international obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or conventions. Customary international law

1554-469: The legality of the use or threat of nuclear weapons, despite what some argued to be uniform state practice. As in the North Sea Continental Shelf cases, in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons it found that the mere fact that no state had used nuclear weapons against another state since World War II did not reflect opinio juris. Some states had pointed out that

1596-487: The other hand, a state would almost certainly expect some form of legal repercussions if it were to prosecute a foreign ambassador without the consent of his or her home state, and in this sense opinio juris does exist for the international law rule of diplomatic immunity . Because opinio juris refers to the psychological state of the state actor – asking why the state behaved as it did – it can be difficult to identify and to prove. In practice,

1638-444: The practice (in particular, great powers) and that states engage in the practice out of a sense of legal obligation (rather than custom or habit). There are several kinds of customary international laws recognized by states. Some customary international laws rise to the level of jus cogens through acceptance by the international community as non-derogable rights, while other customary international law may simply be followed by

1680-655: The principle of non-refoulement . In 1993, the United Nations Security Council adopted the Geneva Conventions as customary international law. If any treaty or law has been called as customary international law, then parties which have not ratified said treaty will be bound to observe its provisions in good faith. Opinio juris sive necessitatis#International law Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris ("an opinion of law")

1722-584: The region. The existence of bilateral customary law was recognized by the International Court of Justice in the Right of Passage Over Indian Territory case between Portugal and India, in which the court found "no reason why long continued practice between the two states accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two states". Other examples accepted or claimed as customary international law include immunity of visiting foreign heads of state and

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1764-641: The same obligation(s), resolutions and declarations by the United Nations, and other sources. In the Paquete Habana case (decided by the United States Supreme Court in 1900 on the question of whether small coastal fishing boats are immune from capture during wartime under customary international law), evidence of opinio juris included medieval English royal ordinances, agreements between European nations, orders issued to

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