CUSTOMARY LAW
1: how the rules of customary international law rules are to be determined
1: ascertain wether there is a general practice accepted as law
there is the necessity of ascertaining the two constitutive elements
overall context
the nature of the rule
the particular circumstances in which the evidence is to be found
each of the two constitutive elements shall be ascertained separately
General practice
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it refers primarily to the practice of states
States can contribute to
The formation of the rule
Expression of the rule
It is stated that in certain cases also the practice of international organisations contributes to the formation of expression of rule customary international law
Practice of the actress of international law is not relevant for the determination of customary international law, but at the same time a quote accordingly serve as a relevant element in the assessment of the practice
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It consists in conduct of the state
Legislative branch
Executive branch
Judicial branch
It's made take wide range of forms c. 6
Physical acts
verbal acts
Certain circumstances also in action may be relevant for the determination of customary international law
May include
Diplomatic, acts and correspondence
Conduct in connection with resolutions adopted by an international organisation or an intergovernmental conference
Conduct in connection with treaties
Executive conduct and organisational contact on the ground
Legislative and then ministrative acts
Decisions of national of courts
According to the last paragraph, there is no predetermined hierarchy among the various forms of practice
How should it be assessed?
all the available practice of the state taken as whole
When the practice of the state varies its way, should be determined, according to the south of circumstances
General, meaning that
Representative
Widespread
Consistent
Particular duration is not required