REASSESSMENT OF STATE PRACTICE AS AN ELEMENT OF CUSTOMARY INTERNATIONAL LAW: FOCUSING ON THE PROCESS OF ITS FORMATION
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Abstract
International custom as one of the norms to be applied in deciding international disputes are referred to in Article 38 (1) (b) of the ICJ Statute as follows; “international custom, as evidence of a general practice accepted as law”. It is generally recognized among international scholarship that there are two elements of customary international law. One is “general practice” and the other is “opinio juris”. While the former refers to state practice that is generally formed by states, the latter refers to the “recognition” of states regarding the legal character of state practice. Customary international law, especially the concept of state practice, continues to give rise to controversies due to its uncertainty surrounding its formation and manifestation. The International Law Commission decided during its sixty-third session to include in its long-term programme of work the topic “Formation and Evidence of Customary International Law” and dealt with the issue of state practice in its several subsequent reports and the International Law Association has also continuously worked on this topic. Although governmental and non-governmental organizations such as the International Law Commission and international publicists of many countries are carrying out in-depth study on state practice as the most principal element of customary international law, no consensus has been reached yet. The paper attempts to shed light on some uncertainties and illogicalities based on existing theory on the formation of state practice and contribute to establishing hopefully more rational and theoretical understanding on state practice.
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