INTRODUCTION

I, the undersigned Gaborekwe and Attorneys are rendering the legal opinion in
compliance with your letter of instructions dated 14th September 2023, in
which you duly informed us that you seek legal opinion on the points of law
regarding the sources of international and their binding effect on the ICJ.

1) Whether the regional custom on boundary delimitation is binding on the

parties.

Customary international law consists of rules that come from “a general practice
accepted as law” and exist independent of treaty law. 1 customary international law in
not written. For a certain rule to be accepted as customary it has to be a general
practice which has been observed over a long period of time and must have a binding
effect. The North Sea Continental Shelf case outlines these factors which turn a rule
into a custom in that the rule has to have general recognition by a large number of
states. Furthermore, the case of Anglo Norwegian Fisheries case provides that some
degree of uniformity amongst state practices was essential before a custom could
come into existence. Article 38 1.b of the Statute of the International Court of
Justice provides that the court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply international custom,
as evidence of a general practice accepted as law.

Opinio juris is another element needed to establish a legally binding custom on states.
Opinion juris is a shortened form of the Latin phrase “opinion juris sive necessitatis”
which means “an opinion of law or necessity”. 2 This is the notion that for a rule to be
binding to a state, that state must perceive itself to be bound by the rule. If not, then it
is not bound by it. “Not only must the acts concerned be 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 requiring it. … The

1
https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law

2
https://www.law.cornell.edu/wex/opinio_juris_(international_law)
States concerned must feel that they are conforming to what amounts to a legal
obligation”.3

A new rule of customary international law cannot be created unless both of these
elements are present. Practice alone is not enough 4. Nor can a rule be created by
opinio juris without actual practice.5

In the case of North Sea Continental Shelf the issue to be determined was whether
delimitation was the object of an equitable agreement between the states involved.
Denmark and Netherlands contended that the boundaries between their respective
areas of the continental shelf in the North Sea and the area claimed by the Federal
Republic of Germany, should be determined by the application of the principle of
equidistance as set forth in Article 6 of the Geneva Convention of 1958 on the
continental shelf, which by January 1, 1969 had been ratified or acceded to by 39
states but to which Germany was not a party. It was held that delimitation must be the
object of an equitable agreement between the states involved. As stipulated in Article
6 of the Geneva Convention, equidistance principle is not a part of customary
international law.

In conclusion, the regional custom on boundary delimitation in the region can be

binding on both the parties. They would in this instance, have to prove that the custom
has been generally observed by a large number of states over a long period of time and
that it is considered as binding on these states.

2) Whether the decisions of Bhutan courts and the ICJ itself can be binding on the
parties.

Article 38(1)(d) of the Statute of the International Court of Justice refers to judicial
decisions as a subsidiary means for the determination of rules of law. It expressly
states that judicial decisions and the teachings of the most highly qualified publicists
of the various nations shall be applied by the court, as subsidiary means for the
3
North Sea Continental Shelf cases, ICJ Reps, 1969

4
SS Lotus (1927)
5
The Advisory Opinion on nuclear weapons (1996)
determination of rules of law. Decisions of a court are called principle. In practice, the
court aims at consistency and therefore follows its previous decisions. The
International Court of Justice also follows the decisions of international courts
because those decisions are evidence of steady practice. By contrast, precedent has no
formal authority in international law.6 According to Article 59 of the Statute of the
International Court of Justice, decisions of the ICJ are binding only on the parties to
the case. It expressly states that the decisions of the court has no binding force except
between the parties and in respect of that particular case. Its drafting history indicates
that it “was not intended to merely express the principle of res iudicata, but rather to
rule out a system of binding precedent”.7 This principle signifies that the decisions of
the court are not only binding on the parties but are final. 8 Furthermore, Article 94(1)
of the United Nations Charter states that a judgement is binding upon the parties. In
the case of Cameroon v Nigeria the court arrived at the conclusion that what had been
decided in 1996 was res iudicata and that was the end to the question.

In the Asylum case, the court had to decide if the decision in the Torre’s case, that it is
competent to qualify the nature of the offence in unilateral and definitive manner is
binding on Peru either because of treaty law, other principles of international law or
by way of regional or local custom. The court held that Colombia, as the State
granting asylum, is not competent to qualify the offence by unilateral and definitive
decision, binding on Peru.

In summary, as much as previous judicial decisions can be used as a guiding tool to

help decide new cases, they are not binding on the International Court of Justice. The
court decides every case in accordance with the facts of that particular case. Hence
such decisions cannot be considered as binding except only to parties to the matter.
The doctrine of stare decisis does not apply to the International Court of Justice.

3) Whether the writings of Professor Khalum can be binding on the parties.

The writings of international lawyers may be a persuasive guide to the court.
Article 38 (1)(d) of the Statute of the International court of Justice provides

6
K. J PELC; The Politics of Precedent in International Law: Asocial network application
7
Crawford, Brownlie’s Principles of Public international Law,38
8
Bosnia and Herzegovina v Serbia and Montenergo ICJ 1998 292
 that the court shall apply, as a subsidiary means for the determination of rules
of law, the teachings of the most highly qualified publicists, namely scholarly
writings. These writings are however not creative law. The writings of lawyers
are not considered a primary source of law because they do not have the force
of law and do not have a binding effect. Hence, cannot be completely relied on
as the basis of a judicial decision but can be used as a guide to help the courts
in reaching that said decision of the court.
In the case of South West Africa9, the court considered juristic writings as an
important source to determine issues relating to international legal status of
South west Africa. the ICJ referred to the opinions and writings of legal
scholars and experts of international law to assess the customary international
law principle concerning the treatment of trust territories and the obligations of
administering powers. The court acknowledged that alongside other sources
could provide valuable guidance in interpreting and applying international law.

Therefore, in this instance, the writings of Professor Khalum cannot be

considered as binding to the court. They can help in determining the decision
which the court would take however.

CONCLUSION
This opinion is addressed to you only for the benefit of this agency partnership
and may not be used or relied upon by another person or for any other purpose.
I trust the above is in order and I await your timely response.
Yours faithfully,
Rosemary Gaborekwe

BIBLIOGRAPHY

i. https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-
law

9
South West Africa ICJ 1966
 ii. https://www.law.cornell.edu/wex/opinio_juris_(international_law)
iii. North Sea Continental Shelf cases, ICJ Reps, 1969
iv. SS Lotus (1927)
v. The Advisory Opinion on nuclear weapons (1996)
vi. K. J PELC; The Politics of Precedent in International Law: Asocial
network application
vii. Crawford, Brownlie’s Principles of Public international Law,38
viii. Bosnia and Herzegovina v Serbia and Montenergo ICJ 1998 292
ix. South West Africa ICJ 1966
x. Statute of the International court of Justice
xi. United Nations Charter
xii. Cameroon v Nigeria 1998 275
xiii. Asylum case Columbia v Peru ICJ Reports 1950

LAW 431; PUBLIC

INTERNATIONAL LAW
TEST 1; ASSIGNMENT
DR TSHOSA
ROSEMARY GABOREKWE:202003123