Customary International Law - The International Court of Justice

The International Court of Justice

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 disputes as are submitted to it, shall apply...international custom, as evidence of a general practice 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 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 International Court of Justice held in Nicaragua v. United States that the elements of an international customary law would be Opinio Juris (Past Judge Decisions or works of the most highly qualified publicists) which is then proven by existing state practices.