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OPINIO JURIS

What is opinio juris?


1. Article 38 (1) (b) of the Statute of the International Court of Justice
explains customary international law as comprising of (1) a general practice
(2) accepted as law. The general practice or state practice was discussed in
an earlier post. The ICJ, in its jurisprudence, has relied on, and interpreted,
Article 38 (1) (b) to include two elements that assist the Court to determines the
existence of an alleged customary international law state practice and opinio
juris (also known as opinio juris sive necessitates). The ICJ explained opinio
juris, in the Nicaragua case, as follows:
[] for a new customary rule to be formed, not only must the acts concerned
amount to a settled practice, but they must be accompanied by opinio juris
sive neccessitatis. Either the States taking such action or other States in a
position to react to it, must have behaved so that their conduct is evidence of a
belief that the practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such belief..the subjective element, is implicit in the
very notion of opinio juris sive neccessitatis.
2. In the North Sea Continental Shelf Cases, the Court examined 15 cases
where States had delimited their boundaries using the equidistance method,
after the Convention came into force. The court concluded, even if there were
some State practice in favour of the equidistance principle the court could not
deduct the necessary opinio juris. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a customary
law rule.
3. State practice is often seen as a reflection of opinio juris. In the Asylum
case, the court held that the relevant practice must be consistent and uniform
to show an expression of a right belonging to one state and a duty incumbent on
another. The court held that Columbia did not prove the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and contradictions in State practice
did not allow for the uniform usage ( see also Nicaragua case, p. 98). The court
held in the Asylum case:
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
(that) it is in accordance with a (1) constant and uniform usage (2) practiced by
the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a duty incumbent
on the territorial State (in this case, Peru). 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(text in brackets added).

OPINIO JURIS

4. The fact that a state undertakes a particular because of political expediency


and not because of a belief that the said practice is binding on the State by way
of a legal obligation (opinio juris) is detrimental to the formation of a customary
law. In the Asylum case the Court said: considerations of convenience or
political expediency seemed to have prompted the territorial State
to recognise asylum without such a decision being dictated by any feeling of
legal obligation.(see also North Sea Continental Shelf Cases and Lotus Case).
5. Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions
(Lotus case) in so far as those acts or omissions are done following a belief that
the said State is obligated by law to act or refrain from acting in a particular
way. In the Lotus case, France alleged that jurisdictional questions on collision
cases are rarely heard in criminal cases because States tend to prosecute only
before the flag State. France argued that this absence of prosecutions points to
a positive rule in customary law on collisions. The Court held that this,
would merely show 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 a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States
have been conscious of having such a duty; on the other hand, as will presently
be seen, there are other circumstances calculated to show that the contrary is
true.
6.In the North Sea Continental Shelf Cases, the ICJ explained the difference
between customs (i.e. habits) and customary law:
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 a rule of law requiring it.
The need for such a belief, i.e, the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned
must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself
enough. There are 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
legal duty.
7. If a state acts in a particular way using its discretion, then, too, the relevant
opinio juris is lacking. In the Rights of Passage case, the ICJ held:
It would thus appear that, during the British and post-British periods,
Portuguese armed forces and armed police did not pass between Daman and
the enclaves as of right and that, after 1878, such passage could only take place
with previous authorization by the British and later by India, accorded either

OPINIO JURIS

under a reciprocal arrangement already agreed to, or in individual cases. Having


regard to the special circumstances of the case, this necessity for authorization
before passage could take place constitutes, in the view of the Court, a negation
of passage as of right. The practice predicates that the territorial sovereign had
the discretionary power to withdraw or to refuse permission. It is argued
that permission was always granted, but this does not, in the opinion
of the Court, affect the legal position. There is nothing in the record to
show that grant of permission was incumbent on the British or on India
as an obligation.