In a society without government, individuals may chose to act in a way that they are accustomed to. Individuals may continue behaving customarily because they think it is the most sensible and rational way to live together, it reduces the cost of finding alternative ways of achieving the same goals in everyday life;or simply they are obligated to do something because others expect this of them. Article 38(1)(b) says that the International Court of Justice, in resolving disputes between states, may look for international custom as evidence of a general practice accepted as law. By using the term ‘custom’, the reference is clearly to some habitual form of conduct.
In laying down the Permanent Court of International Justice to what was believed to represent the view of international tribunals, Art 38 of the Statute of the Court suggested that the could should apply international custom as evidence of a general practice accepted by law. Though this provision is worded imprecisely, it does emphasise that it is only a practice accepted by law which the court is to apply. This dual requirement that there should be a sufficiently uniform practice and the belief that such a practice is obligatory has been summarised into two factors. The first is that there must be a material fact, the repitition of similar acts by states. The second a psychological element usually called the opinio juris which is the feeling on the part of the states that in acting as they do, they are fufilling a legal obligation.
What ammounts to state practice for the purose of creating a customary rule of internaitonal law and the extent to which it would also be necessary to establish the psychological element of a custom will depend entirely on the circumstances of the case. The local remedies rule requires that before a state can take up claim against another in an internaitonal forum, it must have exhausted all of the domestic remedies. This rule is a good example because it is supported by a wealth of state practice and many statements that states do this because they are under a legal obligation to do so. This is what customary international law is, braodly speaking, composed of.
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Tags: art 38, customary international law, international court of justice, international tribunals, legal obligation, opinio juris, permanent court, psychological element, repitition, uniform practice