Customary International Law

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Customary International Law

• international custom, as evidence of a general
  practice accepted as law
• equally influential to treaty law but
  considerably more complicated in its application
• 2 elements 1. consistent and general
  international practice 2. accepted as law by the
  international community

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opinio juris

• acting as though legally bound
• rarely explicit
• acceptance, acquiescence, protest and denial
• municipal courts (consider what evidence may be
  provided by SCC decision in Suresh)
• publicists

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Mustering the Evidence

• state practice unilateral action
• distinguished from convention and convenience and
  contract
• long practice not necessary, but helpful
• municipal courts
• treaty patterns (multiple treaties, big treaties)
• general relationship btw treaty and customary
  international law

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Exceptions, Objections and local norms

• customary law may exist without being applicable
  throughout the international system eg Portugal
  v India
• those who object persistently are unlikely to be
  bound Columbia v Peru
• those who begin objecting later may well be bound

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North Sea Continental Shelf Cases

• rigourous standards applied to question of opinio
  juris
• to what extent did the recently agreed to
  Convention on the Continental Shelf express a
  rule of customary intl law?
• argued that drafting process clarified custom
• majority reservations ratifications special
  circumstances time non-party actions since C
• how is the case resolved?

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jus cogens

• special sub-category of international custom
• peremptory, cannot be contradicted
• no clearly enumerated listcandidates?
• VCLT treaties will be invalid if contradict
• Suresh 3 types of evidence prohibited in many
  treaties no state has legalized it and they deny
  involvement publicists

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jus cogens food for thought

• What did the Supreme Court of Canada decide in
  Suresh?
• What did the Ontario Court of Appeal decide in
  Bouzari?