A Comparison between the Formation of Customary Rule

Embodied in the North Sea Continental Shelf Cases and

Nicaragua v. United States

Raymond R. Roque1

In both the North Sea Continental Shelf Cases and in Nicaragua v. United States
(Merits), the International Court of Justice is consistent in recognizing that there are
basically two (2) elements that are required to be established for the formation of a
customary international law. These two elements are the general practice of States as the
quantitative element while the second one is the opinio juris, which is deemed as the
qualitative or subjective element. The concurrence of these two then marks the existence
of customary rule. Aside from this point, the ICJ then gave a divergent appreciation of
these two elements in the two cases mentioned which in turn, resulted into one case
giving a more rigid standard for the determination of the existence of customary norm
than the other.

In the North Sea Continental Shelf Cases, the ICJ, in elucidating on the requirement
of general practice of States, stated that the same does not entail universality, to the
effect that all States in the international community should have participated and absent
any one of these States will necessarily bar the creation of a customary law. What is
actually needed according to the Court is that within a period of time during which it
was claimed to have been the formative stage of a customary norm, the State practice
should have been “both extensive and virtually uniform” and that the practice should
have occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved. In this determination, it is imperative that the so-called “specially
affected States” have taken part. The Court likewise emphasized that the passage of a
long period of time is not an essential requisite in customary law formation. This
pronouncement is somehow qualified by the statement made by the Court in its later
decision in Nicaragua case. The Court in determining the relevant practice of States as
regards the customary character of the non-use of force and non-intervention declares
in paragraph 186 thereof, viz.

1
∗ B.S.C., major in Management, San Beda College; J.D. UP College of Law
 “It is not to be expected that in the practice of States in the application of
the rules in question should have been perfect, in the sense that States should
have refrained, with complete consistency, from the use of force or from
intervention in each other’s internal affairs. The Court does not consider that, for
a rule to be established as customary, the corresponding practice must be in
absolute conformity with the rule. In order to deduce the existence of customary
rules, the Court deems it sufficient that the conduct of States should, in general,
be consistent with such rules, and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule, not
as indications of the recognition of a new rule. If the State acts in a way prima
facie incompatible with a recognized rule, but defends it conduct by appealing to
exceptions or justifications contained within the rule itself, then whether or not
the State’s conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule.”

The two views posited by the Court are not really diametrically opposed to each
other since both cases demand some measure of consistency on the practices of States
vis-à-vis a particular rule in question. However, in comparing them, it can be readily
seen that the latter one in Nicaragua seemed to modify the clearly positivistic attitude
displayed in the earlier case of North Sea Continental Shelf. For it is genuinely difficult
to achieve the too rigid standard set in therein. Moreover, Nicaragua gives us a clearer
guide in the application of its standard.

It is true that the practice of States as evidencing the existence of a customary

international norm is not to be taken lightly in view of its importance in international
relations. Nevertheless, it is equally important not to lose sight of the fact of global
reality that States are not “mechanical robots” which are acting in a routine fashion to
the extent that once these States have set their minds into something, no deviation from
it, no matter how slight this deviation might be, can ever be expected. On the contrary,
the States should be viewed as dynamic entities very much like the people who
composed them. To this, I have to say that the Nicaragua dictum, as far as determining
the general practice is concerned, is the better view. The determination of general
practice of States should be made in a holistic sense, that is, even the deviations and
inconsistencies must be taken into account. This is because the conduct of States which
are considered as deviations or inconsistencies might give clues as to how much value
that should be assigned to those conduct which are deemed to be in conformity or
consistent with the particular rule involved.

As with the regards to the subjective element of customary norm, i.e. opinio juris,
the ICJ in paragraph 77 of North Sea Continental Shelf Cases made the following
comment:

“The essential point in this connection – and it seems necessary to stress it

– is that even if these instances of action by non-parties to the Convention were
much more numerous than they in fact are, they would not, even in the
aggregate, suffice in themselves to constitute the opinio juris; - for, in order to
achieve this result, two conditions must be fulfilled. 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, 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.”

This comment made by the Court impresses upon me that the Court is working
on the assumption that even if there is evidence available which tend to prove the
existence of general practice of States, the same would not automatically be considered
as evidence proving the existence of the subjective element or the opinio juris and that
another set of evidence is required to establish the latter. Theoretically speaking, this
assumption might stand. However, considering the actual practices of States in relation
with one another and with the rest of the international community, this assumption
might prove to be somewhat unrealistic. In my humble opinion, I believe that State
practice and opinio juris in the context of customary law formation are two sides of the
same coin. In short, it is quite impossible to separate the two in the real-world scenario.
It is indeed, irrational to expect that States will act in one way just to manifest a conduct
in accordance to what they generally practice and will act in another way just to
manifest a conduct in what they think they are legally bound to do.

On the other hand, the Court in the Nicaragua case spoke quite differently. In it,
the Court asserted that the existence of a customary norm is to be determined in the
opinio juris of States as confirmed by practice. This is an obviously different formula
than that given by them in the North Sea case since here, the proof of opinio juris would
be the general practice of States itself. In the using formula, the Court in Nicaragua
found the existence of opinio juris in the relevant practice of States, the United States in
particular, in its support of certain international instruments affirming the customary
rule involved, i.e., the principle of non-use of force. Furthermore, the Court also found
the existence of opinio juris in the statements made by State representatives. In sum, the
ICJ in Nicaragua used the same evidence for proving the two elements of customary
norm. Again, in my humble opinion, I would say that I believe the Court in Nicaragua
made the better formula.

In the North Sea case, one of the factors given the Court is casting doubt as to the
norm-creating character of the equidistance principle asserted by the Netherlands and
Denmark in that case is due to the power of the States involved in entering reservations
as to Article 6, the provision in which the equidistance principle is embodied. The Court
concludes that since the equidistance principle is subject to reservation thus, it can be
inferred that it is not a declaratory of previously existing or even an emergent
customary rule.

I would like to disagree with the Court. The faculty of making reservation should
not be construed as a bar that would preclude a particular treaty norm from becoming a
customary norm. As the Court has insisted in both the North Sea as well as in
Nicaragua, universality of practice is not required. What is only needed is generality of
practice. The fact that generality of practice is the only requirement means that it does
not matter if a few states dissent or acted inconsistently with the general practice of the
rest of the States. Alternatively, if we consider the faculty of reservation as an essential
bar to the formation of customary norm, then it is not far-fetched to say that the few
would-be dissentient states would hesitate in exercising their power of reservation and
this would militate against the essence of giving the power of reservation in treaty-
making system in general. In any event, it must be remembered that the concept of
reservation is peculiar to the law of treaties, not in customary international law.

At this point, I think it is worthy to note, as a parting note, the comment made by
Judge Sorensen in his dissenting opinion in the North Sea Continental Shelf Cases, to
wit:
 “…As a more general point I wish to state that, in my view, the faculty of
making reservations to a treaty provision has no necessary connection with the
question whether or not the provision can be considered as expressing a
generally recognized rule of law. To substantiate this opinion it may be sufficient
to point out that a number of reservations have been made to provisions of the
Convention on the High Seas, although this convention, according to its
preamble, is “generally declaratory of established principles of international
law”. Some of these reservations have been objected to by other contracting
States, while other reservations have been tacitly accepted. The acceptance,
whether tacit or express, of a reservation made by a contracting party does not
have the effect of depriving the Convention as a whole, or the relevant article in
particular, of its declaratory character. It only has the effect of establishing a
special contractual relationship between the parties concerned within the general
framework of the customary law embodied in the Convention. Provided the
customary rule does not belong to the category of jus cogens, a special contractual
relationship of this nature is not invalid as such….”