Table of Contents
Customary International Law
Customary international law is one of the oldest and most important sources of international law. It consists of legal rules that develop through the general practice of states when that practice is accepted as legally required or permitted.
Unlike treaty law, customary international law does not normally arise from a single written agreement. A state does not necessarily need to sign a document expressly accepting a customary rule before the rule can become part of international law.
Instead, custom develops through the interaction of state practice and opinio juris—the belief that the practice is followed because international law requires, permits, or recognizes it.
This makes customary international law fundamentally different from ordinary social custom.
People may follow a tradition because it is convenient, polite, or culturally expected. States may similarly follow a particular practice for political, practical, or diplomatic reasons. Such conduct does not automatically create a rule of international law.
For a customary rule to exist, the relevant practice must have the necessary legal character.
The Cornell Law School Legal Information Institute’s Wex materials on international law provide useful background for understanding customary international law within the broader international legal system.
What Is Customary International Law?
Customary international law can be described as international legal rules derived from general state practice accepted as law.
The traditional formulation contains two essential elements:
- general state practice; and
- opinio juris.
The first concerns what states actually do.
The second concerns why they do it.
A customary rule therefore requires more than repeated behavior.
For example, states may routinely exchange diplomatic notes because doing so is administratively convenient. That practice does not necessarily establish a legal rule.
By contrast, if states consistently follow a particular practice because they believe international law requires them to do so, the practice may contribute to the formation or evidence of customary international law.
The distinction between habit and law is therefore fundamental.
Why Does Customary International Law Exist?
International society has never possessed a single universal legislature capable of creating rules for every international situation.
Treaties provide an important mechanism for lawmaking, but treaties cannot regulate every relationship between every state.
Customary international law helps fill this space.
It allows legal rules to develop through the conduct and legal positions of states over time.
This is particularly important in areas where:
- no comprehensive treaty exists;
- a treaty does not bind all relevant states;
- treaty provisions are incomplete;
- international practice has developed beyond existing treaty language; or
- states recognize a legal rule independently of a particular treaty.
Custom therefore gives the international legal system a mechanism for legal development that does not depend entirely upon the negotiation of formal agreements.
The Two Elements of Customary International Law
The modern understanding of customary international law generally requires two elements.
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1. State Practice
There must be sufficiently general and consistent practice among states.
2. Opinio Juris
States must engage in the practice because they consider themselves legally entitled or obligated to do so.
Both elements matter.
A widespread practice without opinio juris may be merely a habit.
A claimed legal obligation unsupported by actual state practice may likewise be insufficient to establish a customary rule.
The two elements must therefore be examined together.
State Practice
State practice is the observable conduct of states.
It can take many forms.
Evidence of state practice may include:
- diplomatic correspondence;
- government statements;
- legislation;
- administrative decisions;
- military manuals;
- military conduct;
- national court judgments;
- executive decisions;
- treaty negotiations;
- diplomatic protests;
- voting behavior in international organizations;
- official legal opinions;
- responses to international disputes; and
- conduct during armed conflict.
There is no single form of practice that is automatically decisive.
A court examining customary international law generally considers the overall pattern of conduct and the circumstances in which it occurred.
Practice Does Not Have to Be Physical Conduct
State practice is sometimes misunderstood as meaning only physical acts.
In reality, states communicate their legal positions in many ways.
A government may issue a diplomatic statement explaining that a particular action is prohibited under international law.
A national court may hold that a particular international rule exists.
A state may protest another state’s conduct on the ground that it violates international law.
A government may refuse to engage in a particular activity because it considers the activity legally prohibited.
All of these can potentially provide evidence of state practice or opinio juris.
The legal position expressed by a state can therefore be important even when the state has not physically engaged in the relevant conduct.
How General Must State Practice Be?
The word general is important.
A customary rule ordinarily requires practice that is sufficiently widespread and representative.
This does not mean that every state in the world must behave identically.
International law does not operate according to a simple requirement that 100 percent of states must agree before custom exists.
Instead, courts examine whether the practice is sufficiently widespread, representative, and consistent to demonstrate the existence of a customary rule.
The number of states involved is therefore relevant, but numerical calculation alone does not determine the outcome.
Consistency of Practice
State practice must also possess a sufficient degree of consistency.
If states regularly behave in contradictory ways, it may be difficult to establish a customary rule.
However, absolute uniformity is not generally required.
International relations are too complex for every state to behave identically at all times.
The important question is whether deviations are sufficiently significant to undermine the existence of the alleged rule.
In some circumstances, the way states respond to violations may itself provide evidence of the rule.
For example, if a state violates a claimed customary obligation and other states protest specifically because they regard the conduct as legally unlawful, those protests may support the existence of the underlying customary rule.
Duration of State Practice
Customary international law does not necessarily require centuries of practice.
A rule can develop over a relatively short period if the relevant practice is sufficiently widespread and representative and is accompanied by the necessary opinio juris.
This is sometimes described as instant custom, although the expression can be misleading because customary law still requires evidence of the necessary elements.
The key issue is not simply how old a practice is.
The more important question is whether the available evidence demonstrates the existence of a sufficiently general legal practice.
Opinio Juris
The second essential element is opinio juris.
The expression is commonly translated as the belief that a practice is carried out because of a sense of legal obligation or legal entitlement.
This element distinguishes customary international law from ordinary practice.
Imagine that many states provide diplomatic privileges to foreign ambassadors.
There are several possible reasons.
They might do so:
- because international law requires diplomatic immunity;
- because diplomatic reciprocity makes it useful;
- because it has become an established diplomatic tradition;
- because it is politically convenient; or
- because they fear retaliation if they do not.
Only the first type of explanation directly establishes opinio juris.
The same conduct can therefore have different legal significance depending upon the reason for which it is undertaken.
Why Opinio Juris Is So Important
Without opinio juris, state practice could be mistaken for international law merely because it is widespread.
Consider a practice followed by almost every state for practical reasons.
If states do not believe that international law requires or authorizes the practice, the practice does not necessarily create customary law.
The requirement of opinio juris prevents international law from being created simply through repetition.
It forces the legal analyst to ask:
Do states believe that they are acting according to law?
This question is often difficult to answer because states do not always expressly state their legal motivations.
Courts therefore examine evidence from many sources.
How Is Opinio Juris Proven?
Opinio juris can be demonstrated through:
- official government statements;
- diplomatic protests;
- legal opinions issued by governments;
- explanations accompanying national legislation;
- statements before international organizations;
- positions taken in international litigation;
- treaty negotiations;
- national court decisions;
- military manuals;
- responses to alleged violations; and
- other expressions of a state’s legal position.
The language used by states can be especially important.
A state that says:
“We object because this conduct violates international law”
is expressing something different from a state that says:
“We object because this conduct is politically unacceptable.”
The first statement potentially provides evidence of opinio juris.
The second may demonstrate political opposition without establishing a legal belief.
The Difference Between Practice and Opinio Juris
The distinction can be summarized simply:
State practice asks: What do states do?
Opinio juris asks: Why do states believe they are legally entitled or required to do it?
Both questions are necessary.
A customary rule exists only when the evidence supports both elements to the required degree.
This two-element approach is one of the foundational concepts in international legal methodology.
Custom Is Not the Same as Tradition
One of the most common misunderstandings is to equate customary international law with longstanding international tradition.
The two concepts are not identical.
A tradition may exist because states have behaved in a particular way for generations.
Customary international law requires an additional legal element: the practice must be accepted as law.
A tradition can therefore be:
old but not legally binding.
Conversely, a customary rule can potentially develop relatively quickly if the necessary practice and opinio juris emerge with sufficient strength.
Age alone does not create international law.
Evidence Used to Determine Custom
Because customary law is not normally contained in one written instrument, courts must evaluate evidence.
This evidence can be extensive.
For example, a court might examine:
- legislation from numerous countries;
- statements by governments;
- diplomatic correspondence;
- international organization records;
- national court judgments;
- military manuals;
- official policy documents;
- treaty negotiations;
- international protests;
- state participation in international proceedings; and
- conduct during actual events.
No single piece of evidence necessarily establishes a customary rule.
The question is whether the evidence, considered as a whole, demonstrates the necessary practice and opinio juris.
The Role of National Courts
National courts can contribute important evidence concerning customary international law.
A domestic court may examine international practice and conclude that a particular customary rule exists.
Such decisions may then become evidence considered by international tribunals and other national courts.
However, one domestic judgment does not automatically create a universal customary rule.
The judgment is evidence of the legal position of that state and potentially of broader legal reasoning.
Its significance depends upon the circumstances.
The Role of International Courts
International courts play a particularly important role in identifying customary international law.
The International Court of Justice has repeatedly analyzed:
- state practice;
- opinio juris;
- the consistency of state conduct;
- the reactions of states to alleged violations;
- treaty provisions;
- national legislation; and
- other evidence.
International courts do not normally “legislate” customary law in the ordinary sense.
Rather, they determine whether the evidence demonstrates that a legal rule exists.
Their judgments are therefore particularly valuable in understanding the methodology used to identify customary international law.
Treaties and Customary International Law
Treaties and customary international law frequently interact.
A treaty may:
Codify Existing Custom
The treaty may put an already-existing customary rule into written form.
Generate Evidence of Custom
A widely accepted treaty provision may provide evidence of the existence or development of a customary rule.
Help Develop New Custom
Widespread participation in a treaty, combined with consistent practice and opinio juris, may contribute to the emergence of a customary rule.
Coexist With Custom
A treaty rule may apply between its parties while a similar customary rule applies independently to other states.
These possibilities make the relationship between treaty law and customary international law particularly important.
Does a Treaty Create Customary International Law?
Not automatically.
A treaty can contribute to the development or evidence of custom, but the mere existence of a treaty provision does not transform that provision into customary international law.
The relevant question remains whether the necessary elements of custom exist.
There must be sufficient state practice and opinio juris.
This distinction matters because a treaty can bind its parties without creating an identical obligation for states that are not parties.
Customary Law Can Exist Alongside Treaty Law
Sometimes a treaty and customary international law contain essentially the same rule.
In such circumstances, the treaty does not necessarily eliminate the customary rule.
The two legal bases can coexist.
This can be particularly significant when a dispute involves a state that is not party to the treaty.
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The treaty may provide the legal obligation for one group of states, while customary law provides an independent legal basis applicable more broadly.
Regional Custom
Not every customary rule must be global.
International law can recognize regional or local customary rules when the necessary conditions are established among a particular group of states.
A regional customary rule might develop through a distinctive pattern of practice among states in a particular geographic area.
However, the party asserting the existence of a regional or local custom generally faces the burden of establishing the relevant practice and legal acceptance.
The concept demonstrates that customary international law does not always operate at the same geographical level.
Persistent Objector
The persistent objector doctrine concerns a state that consistently and clearly objects to an emerging customary rule while the rule is still developing.
Under the traditional doctrine, such a state may, in certain circumstances, avoid being bound by the rule.
The doctrine is controversial and subject to important limitations.
Most importantly, objection must occur during the development of the rule.
A state cannot normally remain silent while a customary rule develops and then object only after the rule has become firmly established.
The persistent-objector doctrine therefore reflects the continuing importance of state participation and legal opposition in the formation of customary international law.
Is the Persistent Objector Doctrine Unlimited?
No.
Even where the doctrine is recognized, it cannot simply be used to escape every international obligation.
In particular, customary rules possessing the status of peremptory norms (jus cogens) occupy a special position.
A state cannot contract out of a valid peremptory norm merely by objecting to it.
This distinction is important because customary international law is not completely uniform in its legal hierarchy.
Peremptory Norms and Customary International Law
Many peremptory norms of international law arise within the broader framework of customary international law.
A jus cogens norm is a peremptory norm of general international law accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted.
Such norms occupy a special hierarchical position.
States cannot simply create a treaty that permits conduct prohibited by a valid jus cogens norm.
The relationship between custom and jus cogens therefore demonstrates that customary international law can contain rules of extraordinary legal importance.
Custom and State Sovereignty
Customary international law raises an important theoretical question.
If states are sovereign, why should a state be bound by a customary rule that it never expressly agreed to in a treaty?
The answer is closely connected to the structure of international law.
States participate continuously in the international legal system. Their conduct, diplomatic statements, legal positions, and reactions to the conduct of other states contribute to the formation and identification of customary rules.
Custom is therefore not simply an external rule imposed upon states.
It develops through the interaction of states themselves.
At the same time, this does not mean that every state agrees with every customary rule. International law permits disagreement, protest, and legal contestation.
The formation of custom is consequently a continuing process rather than a single moment of universal consent.
The Special Position of Particularly Affected States
In determining whether a customary rule exists, the practice of states that are especially involved in the relevant subject can be particularly significant.
For example, the practice of states with major maritime interests may be especially relevant to questions concerning maritime law.
The practice of states with significant space activity may be particularly informative concerning emerging rules of space law.
This does not mean that powerful states automatically determine international law.
Rather, relevance and representativeness can depend upon the subject matter.
The law must still be demonstrated through the required general practice and opinio juris.
Customary International Law and International Organizations
International organizations can also play an important role in the development and identification of customary international law.
Their resolutions, debates, declarations, and institutional practices may provide evidence concerning state legal positions.
However, an international organization cannot simply declare a customary rule into existence by issuing a resolution.
The legal significance of the organization’s action depends upon the circumstances and the underlying state practice and opinio juris.
International organizations can therefore contribute to the development of custom without replacing the role of states in the traditional formation of customary international law.
Can Customary International Law Change?
Yes.
Customary international law is capable of development.
As state practice changes and new legal beliefs emerge, an existing customary rule may evolve or be replaced by a new customary rule.
However, change does not occur merely because some states begin behaving differently.
There must be sufficient evidence that the relevant practice and opinio juris have changed.
This makes customary international law both flexible and relatively stable.
It can adapt to new circumstances without changing every time an individual state alters its policy.
Customary International Law in Emerging Fields
Customary international law can be particularly important in areas where technology develops faster than treaty law.
New questions concerning:
- cyber operations;
- artificial intelligence;
- autonomous systems;
- commercial space activity;
- biotechnology; and
- digital sovereignty
may arise before comprehensive international treaties exist.
States’ conduct and legal positions concerning these subjects can contribute to the development of customary international law.
At the same time, the existence of competing state practices and disagreement about legal obligations can make it difficult to determine whether a customary rule has actually emerged.
The existence of international controversy does not itself prove the existence of a customary rule.
The Problem of “Instant Custom”
The expression instant custom is sometimes used to describe the idea that customary international law can emerge rapidly.
The concept is theoretically possible but should be approached cautiously.
Customary law does not become law merely because states quickly agree on a political position.
Even rapid customary development requires evidence of the necessary state practice and opinio juris.
The crucial issue is therefore not speed but whether the constituent elements of custom have emerged with sufficient strength.
Customary International Law and International Criminal Law
Customary international law has played an important historical role in international criminal law.
Some international crimes and principles of individual responsibility developed through customary international law before being comprehensively codified in treaties or statutes.
This is significant because international criminal law raises particularly serious questions about legality.
The principle nullum crimen sine lege—no crime without law—requires careful examination of whether conduct was criminally prohibited under applicable law at the relevant time.
Customary international law can therefore be important in establishing the legal status of conduct, but courts must apply demanding standards when determining whether a customary criminal prohibition existed.
Customary International Law and State Responsibility
Customary international law also plays a major role in the law of state responsibility.
The rules governing when a state incurs international responsibility for wrongful conduct are substantially based upon customary international law.
These rules address questions such as:
- attribution of conduct to a state;
- breach of an international obligation;
- circumstances precluding wrongfulness;
- cessation of wrongful conduct;
- reparation; and
- consequences of internationally wrongful acts.
This demonstrates that customary international law is not a peripheral category.
It forms part of the legal foundation of major areas of international law.
How Lawyers Research Customary International Law
Researching a customary rule is considerably more demanding than finding a treaty provision.
A lawyer should begin by identifying the alleged rule precisely.
For example, instead of asking:
“What does international law say about diplomatic immunity?”
the lawyer should formulate a more precise question:
“Does customary international law recognize immunity from a particular category of proceedings, and if so, under what circumstances?”
The lawyer can then examine:
- relevant international treaties;
- state practice;
- government statements;
- national legislation;
- national court decisions;
- diplomatic protests;
- international judicial decisions;
- relevant international organization materials; and
- authoritative scholarly analysis.
The goal is to establish both practice and opinio juris.
A Practical Test for Identifying Custom
A useful analytical sequence is:
Step One: Define the Proposed Rule
State precisely what rule is allegedly customary.
Step Two: Identify State Practice
Examine what states actually do and the relevant official positions they express.
Step Three: Assess Generality
Determine whether the practice is sufficiently widespread and representative.
Step Four: Assess Consistency
Determine whether the practice is sufficiently consistent to support a legal rule.
Step Five: Identify Opinio Juris
Determine whether states follow the practice because they regard it as legally required or permitted.
Step Six: Examine Contrary Practice
Look carefully at states that reject the proposed rule.
Step Seven: Consider Treaty Law
Determine whether a treaty codifies, develops, or operates alongside the alleged customary rule.
Step Eight: Consider Special Rules
Examine whether regional custom, persistent objection, jus cogens, or another doctrine affects the analysis.
This approach prevents the common mistake of declaring something to be customary international law simply because many states appear to do it.
Common Misconceptions About Customary International Law
“If something has happened for a long time, it is customary international law.”
Not necessarily.
Duration is relevant but not sufficient. The practice must have the necessary legal character.
“If most countries agree, the rule automatically exists.”
Not necessarily.
A political consensus does not automatically establish opinio juris.
“A treaty automatically becomes customary law.”
No.
Treaty provisions can codify or contribute to customary law, but the requirements for custom must independently be established.
“Customary law must be written down.”
No.
Its defining characteristic is that it arises from practice accepted as law rather than from a single written legislative instrument.
“A state can avoid every customary rule by objecting.”
No.
The persistent-objector doctrine is limited and does not provide a general right to reject customary international law.
“Customary international law never changes.”
It can evolve as state practice and opinio juris develop.
Why Customary International Law Matters
Customary international law provides continuity within the international legal system.
Treaties can be highly specific and may bind only their parties. Customary rules can provide broader legal standards that exist independently of particular treaty relationships.
Custom also allows international law to respond to changing international circumstances.
At the same time, customary law is deliberately demanding.
A legal rule cannot be established simply by pointing to a handful of examples or making a broad assertion that “countries generally do this.”
The process requires evidence.
That evidentiary character is one of the reasons customary international law is both powerful and difficult to analyze.
Key Takeaways
Customary international law consists of legal rules arising from general state practice accepted as law.
Its principal characteristics include:
- Customary international law is one of the principal sources of international law.
- It is not necessarily contained in a written treaty or code.
- Two constituent elements are central: state practice and opinio juris.
- State practice concerns the conduct and legal positions of states.
- Opinio juris concerns the belief that the practice is legally required, permitted, or recognized.
- Repeated behavior does not automatically become international law.
- Political practice and legal practice must be distinguished.
- State practice must generally be sufficiently widespread, representative, and consistent.
- Custom can develop relatively quickly when the necessary elements are present.
- Treaties can codify, contribute to, or coexist with customary international law.
- Regional and local customary rules may exist under appropriate circumstances.
- The persistent-objector doctrine may have limited application to emerging customary rules.
- Peremptory norms (jus cogens) occupy a special position and cannot simply be rejected by individual states.
- International courts help identify and interpret customary rules but do not function as a universal legislature.
- Customary international law can evolve as state practice and opinio juris change.
Frequently Asked Questions
What is customary international law?
Customary international law consists of legal rules that develop through general state practice accepted as law.
What are the two elements of customary international law?
The two traditional elements are state practice and opinio juris.
What is state practice?
State practice is the conduct and official legal positions of states relevant to a particular international legal question. It can include legislation, diplomatic statements, court decisions, military practice, diplomatic protests, and other governmental conduct.
What is opinio juris?
Opinio juris is the belief that a particular practice is followed because international law requires, permits, or recognizes it.
Is customary international law legally binding?
Yes. Once a customary rule has been established under international law, it can create binding international obligations independently of a treaty.
Does customary international law have to be written down?
No. Customary international law develops through state practice and opinio juris. Judicial decisions and scholarly works may help identify the rule, but the rule does not require a single written legislative instrument.
How long does it take to create customary international law?
There is no universal minimum period. A rule may develop relatively quickly if sufficiently general and representative state practice is accompanied by opinio juris. Longevity alone, however, is not enough.
Can one country create customary international law?
Normally, no. Customary international law requires sufficiently general practice rather than the conduct of a single state. The practice of particularly affected states may nevertheless have special evidentiary significance in certain areas.
Can a treaty become customary international law?
A treaty provision can codify existing custom or contribute to the development of a customary rule, but a treaty does not automatically become customary international law. The required state practice and opinio juris must be established.
What is a persistent objector?
A persistent objector is a state that consistently and clearly objects to an emerging customary rule while the rule is developing. Under the traditional doctrine, such a state may in certain circumstances avoid being bound by that rule.
Can customary international law be changed?
Yes. Customary international law can evolve when state practice and opinio juris change sufficiently to establish a new rule.
What is the difference between custom and tradition?
Tradition describes behavior that has been followed over time. Customary international law requires the additional legal element of opinio juris. A practice can therefore be traditional without being legally binding.
Conclusion
Customary international law demonstrates perhaps more clearly than any other source why international law is a distinctive legal system.
There is no international legislature that must formally enact every customary rule. Instead, legal norms can emerge through the conduct of states themselves, provided that the conduct becomes sufficiently general and consistent and is accompanied by the belief that the practice has legal significance.
The two concepts of state practice and opinio juris are therefore the foundation of customary international law.
State practice tells us what states do. Opinio juris helps establish that they do it because they understand themselves to be acting according to law.
This distinction prevents international law from being reduced to international habit.
Customary international law also demonstrates the dynamic character of the international legal order. Rules can develop, change, coexist with treaties, acquire regional application, and in some circumstances attain the special status of jus cogens.
For lawyers and students, the most important methodological lesson is therefore simple: a claim that something is “customary international law” must be demonstrated, not merely asserted.
The proper analysis requires evidence of the relevant state practice, evidence of opinio juris, examination of contrary practice, consideration of treaties and judicial decisions, and careful attention to the particular circumstances of the alleged rule.
Customary international law is consequently both one of the oldest foundations of international law and one of its most sophisticated mechanisms for legal development.
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