[tp widget="default/tpw_default.php"]

Tag: what is opinio juris in international law

what is opinio juris in international law

what is opinio juris in international law插图

Subjective obligation
In customary international law ,opinio juris is the second element necessary to establish a legally binding custom. Opinio juris denotes asubjective obligation,a sense on behalf of a state that it is bound to the law in question.

What is the meaning of opinio juris?

An essential element of custom, one of the four sources of international law as outlined in the Statute of the International Court of Justice. Opinio juris requires that custom should be regarded as state practice amounting to a legal obligation, which distinguishes it from mere usage. From: opinio juris in A Dictionary of Law

What does the ICJ mean by Opio Juris?

In the formulation of the ICJ in its North Sea Continental Shelf judgment, opinio juris is “a belief that [a] practice is rendered obligatory by the existence of a rule of law requiring it.” Significantly, evidence of State practice alone is insufficient to identify customary international law.

What is the opinion of the law called?

…and in the belief (called opinio juris: “opinion of the law”) that that practice is in conformity with international law. Much of this customary international law has found its way into the various conventions described above. Therefore, it may properly be argued that, although a particular state is not a…

Can state practice and opinio juris be combined into a test?

The United States noted the study tended to merge the State practice and opinio juris requirements into a single test and that doing so was not an appropriate methodological approach.

Why is opinio juris important?

Understanding opinio juris is essential to determining whether certain practices have developed into norms of customary international law. States may engage in behaviors for a variety of non-legal reasons, including political expedience. Because these non-legal reasons may influence their behavior, opinio juris cannot simply be inferred from State practice. As a result, discerning State opinio juris is not always so straightforward.

How does substituting the interpretive views of non-state actors for opinio juris affect the law?

Substituting the interpretive views of non-State actors for opinio juris can upend the State-centric process of norm creation and damage the workability of the law. Accordingly, jurists and practitioners must avoid doing so. The law of armed conflict seeks to balance the interests of military necessity and humanity. Achieving the appropriate balance depends on State input and the representation of State interests. Consequently, to fill gaps in the customary law of armed conflict with speculation risks skewing the balance between military necessity and humanity. Allowing non-State assessments to define the law and drive its development would frustrate its position as a body of law dedicated to governing relations between States during armed conflict.

What is the source of international law?

Opinio Juris. Customary international law has long been recognized as one of three primary sources of international law. Article 38 (1) of the Statute of the International Court of Justice states that international law derives from international conventions, international custom, and general principles of law.

What is the second source of customary international law?

The second source, customary international law, is commonly agreed to develop from a general and consistent practice of States followed by them from a sense of legal obligation. [1] Accordingly, customary international law is understood to consist of two parts: State practice and States’ subjective understanding of their legally binding obligations—otherwise known as opinio juris. In the formulation of the ICJ in its North Sea Continental Shelf judgment, opinio juris is “a belief that [a] practice is rendered obligatory by the existence of a rule of law requiring it.”

Why do states remain silent about opinio juris?

Military operational concerns, for instance, may necessitate a certain degree of reticence, and States may remain quiet to avoid revealing protected information. Early operations in cyberspace highlight how delicate the decision to assert opinio juris can be—and why States may hesitate to announce their positions, particularly regarding emerging areas of warfare.

How can international court decisions be useful?

International court decisions can be useful in clarifying State understandings of the law. For example, the Tadi? case decided by the International Criminal Tribunal for the former Yugoslavia is frequently cited as a case that has had a positive impact on the law of armed conflict. The Tadi? Appeals Chamber decision was informed by the views of States, several of which submitted amicus curiae briefs to the tribunal, and State input may account for its broad acceptance and longevity. In contrast, other international court decisions have been criticized for declaring interpretations of customary law unsupported by State practice or opinio juris. These cases, some of which are discussed here, highlight the danger of accepting non-State opinions for statements of opinio juris.

How to ensure the law remains workable in armed conflict?

To ensure the law remains workable in armed conflict, States should commit to affirming their views of the law whenever practicable. However, in the absence of such expressions, those responsible for applying the law of armed conflict, including international courts and law of war practitioners, must be vigilant not to mistake non-State opinions for the views of States. In the absence of clear State opinio juris, accepting speculative statements about customary law may seem appealing, but ensuring the law remains workable and relevant in armed conflict requires that States, not private individuals or non-State organizations, remain the focus of law creation.