Acceptance of Practice as Legal Norm (opinio juris) in the Formation of International Custom

Abstract

One of the most important issues in the law of international custom is the definition of the forms of acceptance of general practice as a legal norm (opinio juris). The lack of consensus on this issue at the international level and the common position in science results in the poor effectiveness of the legal regulation of inter-state relations. Research work often uses non-objective approaches. The present article contains separate but important theoretical provisions and proposals to address this problem. Thus, the existence of opinio juris is an inherent subjective element of the customary rule of international law, as is the existence of practices that satisfy the necessary requirements of customary rule formation. Only states and other subjects of international law participating in international norm formation process can be recognized as subjects of recognition. Such actions may be manifested in the actions of state authorities and their officials, who may act on their behalf in accordance with international law and/or the law of States. Opinio juris from the part of states is generally implemented in the course of general practice. Recognition must be exercised by legal means and be legitimate under the law of the state and its international obligations. Among the main forms of recognition, together with acquiescence, are: a unilateral statement by the head of state (government), another state-authorized official, the head of the international intergovernmental Organization, other subject of international law; the inclusion of a rule of conduct in a domestic legal instrument; the inclusion of a rule of conduct in an international treaty or other based on it, a legally binding international legal act adopted by its parties in view of these documents as acts of unilateral recognition; under certain conditions, a judicial decision in a state. The basic condition of the universal acceptance of the rule of international law is its acceptance by the majority of states (established by the world community) whose interests are most affected by the application of this rule. This requires some legal formalization, the codification of qualitative and quantitative criteria and the corresponding indicators of the formation of the customary rule of international law. The elaboration and adoption of a convention on the law of international customs would help to reconcile the differences in the positions of subjects of international law and develop a unified approach in that regard.