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References
For Sur, custom “appears as the result of an accumulation of successive connected interpretations” (op. cit., p. 189).
Which leads H. Torrione to state that, as regards customary law, the interpretation occurs when the norm is produced “no customary law comes about unless a previous process of interpretation has taken place” (L’influence des conventions de codification sur la coutume en droit international public, eds. Universitaires, Fribourg, 1989, p. 224). See also Guggenheim, P., Traité de droit international public, 2nd ed., vol. I, Geneva, 1967, pages 93 et seq. and Kammerhofer, J., “Uncertainty in the formal sources of international law: customary international law and some of its problems”, European Journal of International Law, 15 (2004) 3, pp. 523–553.
See in this regard the case of the Maritime Delimitation in the Area Between Greenland and Jan Mayen (ICJ, Reports 1993, p. 62, para. 5 in fine) the value given by Article 38 of the Statute of the I.C.J. as a subsidiary means for the determination of rules of law must not be forgotten.
Haggenmacher, R., “La doctrine du droit coutumier dans la pratique de la Cour internationale”, RGDIP, 1986/1, page 114.
Dupuy, P.M., Droit..., op. cit., page 229.
Torrione, H., op. cit., p. 228. He adds that I.C.J. case law, “in a general way, is a manifestation of the existence inside the International Community of a coordinated interpretation of customary law imposed upon particular interpretations” (cf. ibid.). On the other hand, the value which Article 38 of the I.C.J. Statute gives to judicial decisions as a means for the determination of rules of law must be taken into account.
See TORRIONE, H., op. cit., p. 215. On this question, as regards the importance of precedents in the formation of a customary norm, see Roben, V., “Le précédent dans le jurisprudence de la Cour internationale”, German Yearbook of International Law, 1989, vol. 32, pages 382–407.
Thus, the interpretation is not only an act of knowledge, but, once all the judicially possible solutions have been considered, includes an act of will: the choice of promoting one of these (cf. Torrione, H., op. cit., page 221).
Thus, in the case of the Maritime Delimitation in the Area Between Greenland and Jan Mayen, the I.C.J. states that the “statement of an ‘equitable solution’ as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones” (I.C.J., Reports 1993, p. 59). In the case concerning Land, Island and Maritime Frontier Dispute, the ICJ stated that, when proof exists, acquiescence and recognition can be used as factors for the interpretation of the customary applicable law (cf. ICJ, Reports 1992, page 401).
Haggenmacher, R., La doctrine du droit coutumier dans la pratique de la Cour internationale”, RGDIP, 1986/1 op. cit., p. 118. On the interpretation of customary norms by the internal judge see with regard to France, Treboul, G. “Le droit international non ecrit devant le juge administrative. Quelques reflexions”, RGDIP, 1991/2, p. 321–370.
See ICJ, Reports 1993, p. 60.
Haggenmacher, R., La doctrine du droit coutumier dans la pratique de la Cour internationale”, RGDIP, 1986/1 op. cit., p. 117. See also Mendelson, M.H., “The Formation of Customary International Law”, R.C.A.D.I., 1998, vol. 272, pp. 155–410 and Yee, S., “The News that Opinio Juris ‘Is not a Necessary Element of Customary (International) Law’ Is Greatly Exaggerated”, G.Y.I.L., 2000, vol. 43, pp. 227–238.
Haggenmacher, R., La doctrine du droit coutumier dans la pratique de la Cour internationale”, RGDIP, 1986/1 op. cit., p. 117. And in the opinion of P.M. Dupuy, as the basis of the validity of the norm invoked “lies less in the conviction of the States than in that of the judges” (“Le juge et...”, op. cit., p. 586).
And he adds that “When it wa hindered by the drafting of article 38 of the Statute, the Court tried to emancipate itself in this way” (Dupuy, P.M., “Le juge et...”, op. cit., p. 586).
Torrione H., op. cit., p. 233. Cf. Ferrari Bravo, L., “Méthodes de recherche de la coutume internationale dans la pratique des Etats”, R. des C., vol 192 (1985-III), pages 233–330. Especially pages 246 et seq.
This fact is stressed by Judge M. Soerensen in his dissenting opinion concerning the case of the North Sea Continental Shelf when he states, “The possibility has thus been reserved — by the Court-of recognizing the rapid emergence of a new rule of customary law based on the recent practice of States. This is particularly important in view of the extremely dynamic process of evolution in which the international community is engaged at the present stage of history” (ICJ, Reports 1969, p. 243). The italics are ours.
Vid Sur, S., op. cit., p. 192. One example of interaction examined recently by the ICJ is the case of the Maritime Delimitation in the Area between Greenland and Jan Mayen where, in relationship with the delimitation of the continental shelf, the Court states that the fact that the 1958 Geneva Convention, ratified by Denmark and Norway, should be applied to the present case, “does not mean that Article 6 thereof can be interpreted and applied either without reference to customary law on the subject, or wholly independently of the fact that a fishery zone boundary is also in question in these waters” (I.C.J., Reports 1993, p. 58).
Cot, J.P. “La conduite subséquente des parties à un traité”, RGDIP, 1966, vol. 70 p. 638 (vid also p. 663). The italics are in the original. On the other hand this is a retroactive interpretation which the treaty again takes up from the beginning “nothing prevents it from developing problems little by little regulated by the treaty” (Sur, op. cit., pages 192 et seq.) For an example of practice subsequent to the treaty see Cot, J.P., “L’interprétation de l’accord franco-américain...”, op. cit., pages 370 et seq.
See ICJ, Reports 1986 and Reports 1993, respectively.
See ICJ, Reports 1986, pages 99, 100 and 107. In the case of the Maritime Delimitation in the Area Between Greenland and Jan Mayen the I.C.J used the arbitral award of the case on the Gulf of Maine and stated that “the equidistance/special circumstances rule of the 1958 Convention is, in the light of this 1977 Decision, to be regarded as expressing a general norm based on equitable principles”(I.C.J., Reports 1993, p. 58).
This is deduced from general International Law as developed trough the case law of the Court and arbitral case law, and through the work of the Third United Nations Conference on the Law of the Sea“, which also uses the concept of “relevant circumstances” (I.C.J., Reports 1993, p. 62).
See ibid., p. 64.
See ibid., pages 67, 70 et seq. and 72, respectively. Nevertheless, the Court will reject others: the population, socio-economic factors and the cultural factor (ibid., pages 73 et seq.).
ICJ, Reports 1984, pages 424 et seq., para. 73. The ICJ repeats this assertion in its Judgement on the merits of the case, on 27 june1986 (I.C.J., Reports 1986, p. 93, para. 174) In this last it adds, “even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability” (ibid., p. 94, paragraph 175).
The ICJ adds, “It rather demonstrates that in the field in question, the importance of which for the present dispute need hardly be stressed, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content” (I.C.J., Reports 1986, p. 94, para. 176).
As “A State may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules” (ibid., pp. 95 et seq. paragraph 178).
Ibid., p. 96, para. 179. Cf. Gonzalez Campos; J.D., Sanchez Rodriguez, L.I., Andres Saenz de Santa Maria, M. P., Curso..., op. cit., pages 123–125. See also Rodriguez Carrion, A., Lecciones de Derecho Internacional Público, 5th ed., Tecnos, Madrid, p. 231 et seq. The same criterion is adopted by the I.I.L. in conclusion number 11 of its Lisbon resolution (see I.I.L., Yearbook of the Institute of International Law, 1995, vol. 66-I, Pedone, Paris, 1995, pages 247–248.
IIL, Yearbook..., op. cit., p. 248.
Cf. ICJ, Reports 1986, pages 95 et seq.
Cf. Cahier, Ph., “Cours général...”, op. cit., pages 223–247.
Vid Rodriguez Carrion, A., Lecciones de..., op. cit., pages 224 et seq. Cf. Ferrari Bravo, L., op. cit., page 246 and Brownlie, I., “Some problems in the evaluation of the practice of status as an element of custom”, in Studi di diritto internazionale in onnore di Gaetano Arangio Ruiz, 2004, vol. I, pp. 313–318.
Gonzalez Campos, J.D., Sanchez Rodriguez, L., and Andres Saenz de Santa Maria, M. P., Curso..., op. cit, p. 111. The words in italics corresponds to the original. Cf. also, Jimenez de Arechaga, E., “The work and the jurisprudence of the International Court of Justice”, B.Y.I.L., 1987, pages 1–38.
It adds that “This follows from article 38 of the Statute of the Court, which refers to international custom ‘as evidence of a general practice accepted as law’” (ICJ, Reports 1950, pages 275 et seq.).
In the Asylum Case referred to, the ICJ states, “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State” (ibid.). In the Fisheries Case, the I.C.J. adds that evidence shall be “convincing” (I.C.J., Reports 1951, p. 138).
“The material of customary international law is to be looked for primarily in the actual practice and opinio iuris of States” (ICJ, Reports 1985, pages 29 et seq., para. 27).
ICJ, Reports 1950, pages 277 et seq.
ICJ, Reports 1951, page 131.
ICJ, Reports 1950, page 278. In the Fisheries Case the I.C.J. states, “although the ten-mile rule has 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” (I.C.J., Reports 1951, p. 131).
ICJ, Reports 1961, p. 34. In the case of the Arbitral Award Made by the King of Spain on 23 December 1906, the Court states that Nicaragua, “by express declaration and by conduct, recognized the Award as valid and it is no longer open to Nicaragua to go back upon that recognition and to challenge the validity of the Award” (I.C.J., Reports 1960, p. 213). Also in the case of the North Sea Continental Shelf, concerning the equidistance principle of Article 6 of the 1958 Geneva Convention, where it states that the cases cited “are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice,...” (I.C.J., Reports 1969, p. 45).
ICJ, Reports 1962, page 32. And adds, “as a whole, Thailand’s subsequent conduct confirms and bears out her original acceptance, and that Thailand’s acts on the ground do not suffice to negative this. Both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier ” (ibid., p. 33). In the Fisheries Case, it is the United Kingdom of Great Britain which suffers the consequences of its prolonged abstention when it did not react when Norway pronounced the Decree of 1869 which contained the criterion of the delimitation of ten miles in order to close off bays. When Great Britain alleged it did not know of this system of delimitation, the ICJ responded that, “As a coastal State on the North Sea, greatly interested in the fisheries in this area, as a maritime Power traditionally concerned with the law of the sea and concerned particularly to defend the freedom of the seas, the United Kingdom could not have been ignorant of the decree of 1869 which had at once provoked a request for explanations by the French Government. Nor, knowing of it, could it have been under any misapprehension as to the significance of its terms, which clearly described it as constituting the application of a system” (I.C.J., Reports 1951, p. 139). Cf. also the quoted case of the Arbitral Award Made by the King of Spain on 23 December 1906 involving Nicaragua and Honduras (I.C.J., Reports 1960, p. 214), where passivity acts against Nicaragua.
ICJ, Reports 1971, p. 22, para. 22.
ICJ, Reports 1969, p. 42. Cf Jimenez de Arechaga, E., The work and...“, op. cit., pages 31 et seq. and Vismara, F., “La prova di una pratica generale acettata come diritto nella prassi della Corte internazionale di giustizia”, Comunità Internazionale, 2000, vol. LV, no 3, pp. 439–463.
ICJ Reports 1986, p. 98, para. 186. Cf. Dupuy, P.M., Le juge et...”, op. cit., p. 573.
The ICJ states, “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 affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have ocurred in such a way as to show a general recognition that a rule of law or legal obligation is involved” (I.C.J., Reports 1969, p. 43).
This relativisation is backed up by the rapidity in the transmission of information in the contemporary International Community and expressed in specific terms, as Cahier shows, in the fact that the conduct of the different States is known almost immediately by the rest of the International community. On the other hand, the increased number of international conferences and meetings of the bodies of International Organizations provides States with the opportunity to make public its statements on any question, this was not possible in the last Century nor at the beginning of the XXth Century (cf. “Cours...”, op. cit., p. 226).
ICJ, Reports 1951, p. 133.
Cf. in this regard, the case of the Fisheries Jurisdiction (United Kingdom v. Iceland), (ICJ, Reports 1974, pages 191 et seq.).
This was present in the case law of the PCJI, as in the Lotus case, when it states that, “Only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom” (P.C.I.J. Series A, No. 10, 1927, p. 28).
This is the conviction which differentiates these acts from “many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of a legal duty”(both quotations are from the I.C.J., Reports 1969, p. 44). The italics corresponds to the original.
Thus, “the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them” (I.C.J., Reports 1985, p. 29, paragraph 27. The part in italics corresponds to the original).
In which the ICJ states that, “The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice (I.C.J., Reports 1986, p. 98, paragraph 184. The italics correspond to the original).
The existence of the opinio iuris of the States as specified by the I.C.J. in the case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area “can be tested by induction based on the analysis of a sufficiently extensive and convincing practice, and not by deduction from preconceived ideas”. (I.C.J., Reports 1984, p. 229). The same can be stated with regard to the legal effects of the resolutions of the United Nations General Assembly.
ICJ, Reports 1986, pages 99 et seq.
Ibid.
Ibid. p. 100. The ICJ follows the same reasoning with regard to the relation with other obligations affected by this matter, such as the principle of non-intervention, “It is easy to find numerous expressions of an opinio iuris on the existence of this principle in customary international law” (Ibid., p. 106); and cites General Assembly Resolutions 2625 (XXV) and 2131 (XX), this latter relating to the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. It finally uses its own jurisprudence stated in the Corfu Channel case (cf. Ibid., p. 107).
Gonzalez Campos, J.D., Sanchez Rodriguez, L.I. and Andres Saenz De Santa Maria, M.P., Curso..., op. cit., p. 117. Cf. also Thirlway, H., “The Law and Procedure of the International Court of Justice”, 1989, op. cit., pp. 143–157.
Dupuy, P.M., Droit..., op. cit., p. 576. The italics are in the original.
Ibid. p. 579. The italics are in the original.
To the extent that “on being released at different levels from reference to international practice, in order to affirm the legal validity of certain general rules, the Court has undoubtedly overlooked the statutory conditions under which it is allowed to apply international law” (Droit..., op. cit., p. 580).
Ibid., pages 580 et seq.
Cf. The Asylum Case (ICJ, Reports 1950, pages 275 et seq.).
On the occasion of the case of the Right of Passage over Indian Territory, in which the practice had extended over 125 years, “It is difficult to see why the number of States between which a local custom may be established on the basis of a long practice must necesarily be larger than two. The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States” (I.C.J., Reports 1960, p. 39).
Ibid., p. 40.
In the following cases: the Asylum Case (Reports 1950, pages 275 et seq.), the Fisheries (Reports 1951, pages 136 et seq.), of the Right of Passage over Indian Territory (Reports 1960, pages 39 et seq., the Arbitral Award Made by the King of Spain on 23 December 1906 (Reports 1960, p. 213), the Temple of Preah Vihear (Reports 1961, p. 34), the Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa) notwithstanding Security Council Resolution 276 (1970) (Reports 1971, p. 53). The Court accepts nuances of these characteristics in the following cases: the North Sea Continental Shelf (Reports 1969, p. 42), the Continental Shelf (Libyan Arab Jamahiriya/Malta) (Reports 1985, pages 29 et seq., para. 27), and the Military and Paramilitary Activities in and against Nicaragua (Reports 1986, pages 98 et seq. paragraphs 185 and 186).
Those constituted over a long period of time: (cases: the Fisheries (Reports 1951, p. 131) the Right of Passage over Indian Territory Reports 1960, p. 40), and the Temple of Preah Vihear (Reports 1961, p. 34), becomes progressively relativised by the Court (cases concerning the North Sea Continental Shelf (Reports 1969, p. 43), the Continental Shelf (Libyan Arab Jamahiriya/Malta), (Reports 1985, pages 29–30, paragraph 27), and the Military and Paramilitary Activities in and against Nicaragua (Reports 1986, p. 98, paragraph 186).
In the Cases: the North Sea Continental Shelf (Reports 1969, pages 28 and 44), the Continental Shelf (Libyan Arab Jamahiriya/Malta) (Reports 1985, pp. 29–30, paragraph 27), and the Military and Paramilitary Activities in and against Nicaragua (Reports 1986, p. 100, paragraph 188). Already, in the jurisprudence of the P.C.I.J. in the Lotus Case (Series A, No. 9, pages 18–21).
The case of the Military and Paramilitary Activities in and against Nicaragua (Reports 1986, page 94, para. 175).
The Asylum Case (Reports 1950, pages 276–278).
The case of the Right of Passage over Indian territory (Reports 1960, pages 39–43).
The case of the Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa) notwithstanding Security Council Resolution 276 (1970), (Reports 1971, p. 53).
In the case of the Military and Paramilitary Activities in and against Nicaragua (Reports 1986, pages 99 et seq.). See Chapter X of this work.
In the following cases: the Fisheries (Reports 1951, pages 131–138) the Arbitral Award Made by the King of Spain on December 23, 1906 (Reports 1960, pages 213 et seq.), and the Temple of Preah Vihear (Reports 1961, pages 32–34).
The Fisheries Case (Reports 1951, page 139).
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(2007). Conduct, the Expression of the Will of the State, Constitutes the Subject of the Discrepancy: The Customary Norms. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_4
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