North Sea Continental Shelf Cases and Nicaragua v.

United States: A Comparative Essay of the Courts methodology on the formation of Customary International La

!esus Nicardo ". #alcis In this essay I ill discuss the similarities and differences of the methodology of the

International Court of !ustice in analy$ing the formation of customary norms in the t o cases. I ill do this %y loo&ing at t o aspects: '() the process of customary norm formation in relation and '*) the elements integral for the formation of customary norms +n the first aspect, the Court is in unison in e-plaining that conventional la formation of customary norm in three aids in the ays. #irst, a pre.e-isting customary norm may %e may influence the ith conventional la

codified %y conventional la , there%y %eing merely declaratory. Second, an emerging customary norm may %e crystalli$ed %y conventional la . /hird, conventional la 42 of North Sea, paragraph (44 of Nicaragua). /he discussion on the process of formation of customary norms from conventional la helpful since much of customary la out a guide in determining customary norms and that is through the use of conventional la . +n the second aspect, the Court has %een consistent in %oth the North Sea case and the Nicaragua case in re0uiring the presence of t o elements 5 one, the rule must amount to settled State practice and t o, the conduct must %e accompanied %y opinio juris sive necessitatis. In paragraph 44 of the North Sea case, the Court said that 6not only must the acts concerned amount to settled practice, %ut they must also %e such, or %e carried out in a ay, as to %e evidence of a %elief that this practice is rendered o%ligatory %y the e-istence of a rule re0uiring it.7 In paragraph *84 of the Nicaragua case, the Court said that 6for a ne %e accompanied %y the opinio juris sive necessitatis.7 As to the first element, the Court in the case of North Sea held, in a s eeping manner, settled practice as 6State practice, especially that of states hose interests are specially customary rule to %e formed not only must the acts concerned 9amount to a settled practice %ut they must is is un ritten and re0uires identification. /he Court points su%se0uent adoption of a customary norm, there%y %eing constitutive 'paragraphs 12 and 13 to

affected, that is %oth e-tensive and virtually uniform during a short period of time7 'paragraph 4:). /he Court in the case of Nicaragua as more nuanced %y saying that 6it is not to %e e-pected that in the practice of States the application of the rules in 0uestion should have %een perfect, in the sense of complete consistency7 and that it 6does not consider that, for a rule to %e esta%lished as customary, the corresponding practice must %e in a%solutely rigorous conformity ith the rule7 'paragraph (31). It goes further %y saying that 6the Court deems it sufficient that the conduct of States should, in general, %e consistent State conduct inconsistent ith such rules, and that instances of ith a given rule should generally have %een treated as %reaches of

that rule, not as indications of the recognition of a ne rule7 'paragraph (31). / o things are noticea%ly different in the Courts formulation. #irst, the 0ualification on specially affected states is a%sent in Nicaragua. /his could %e attri%uted to the factual milieu of the t o cases, here the e0uidistance rule in dispute in the case of North Sea as only as applica%le to coastal States hile the rules on the non.use of force and non.intervention

applica%le to all States, therefore ma&ing it unnecessary for the Court in Nicaragua to discuss specially affected states. Second, the consistency of conduct international la is stricter in North Sea, merely carelessness on the part of the Court to clarify ith regards to a rule of hich re0uired virtually uniform conduct. /his could %e hat it truly meant or it could really have

intended such a stringent interpretation. Nevertheless, the discussion in the case of Nicaragua has clarified the element of state practice as less stringent. As to the second element, the Court in the case of North Sea said that 6the acts must %e carried out in such a ay as to %e evidence of a %elief that this practice is rendered o%ligatory7 hat amounts to hen it 0uoted as reiterated in the case of Nicaragua and that 6the States concerned must therefore feel that they are conforming to a legal o%ligation7 'paragraph 44). /his opinio juris may, though

the case of North Sea in paragraph *84 of the decision. /he Court though pointed out that 6the ith all due caution, %e deduced from, inter alia, the attitude of parties and the attitude of States to ard certain ;eneral Assem%ly resolutions7 'paragraph (33). /he Court found that the 6acceptance of a te-t in these terms confirm the e-istence of an opinio juris of the participating States prohi%iting the use of force in international relations7 'paragraph (3<) and the 6adoption %y States of this te-t affords an indication of their opinio juris7 'paragraph (<(). /he North Sea case found the ine-istence of opinio juris since it held that the e0uidistance rule %ecause it as applied not %ecause of a %elief that it amounted to a legal o%ligation %ut as no discussion as to ho the conduct of States, in fifteen different as convenient or politically e-pedient. /he Court appears cavalier and dismissive in

its analysis since there

instances, in applying the e0uidistance rule did not evidence or constitute opinio juris. It does not tell us hat acts or conduct ould have evidenced opinio juris. Opinio juris, %eing a %elief, cannot %e proved hich no mechanism e-ists to pro%e into. /hat is ith certainty, it %eing a state of mind from hy in Criminal la , intent, %eing a state of

mind, is deduced from the acts of the individual. /he Court in the case of Nicaragua clearly adopts such methodology %y stating that opinio juris may %e deduced although it should %e done so ith caution. I ould go a step further and argue that once state practice has %een idespread and representative conduct of states amounting to is conducive esta%lished to %e generally consistent, a disputa%le presumption should %e made in favor of the e-istence of opinio juris. A settled practice must mean that there is consensus that a rule of international la la must %e settled in favor of it %eing a customary norm since it

to the co.e-istence of states. /herefore, any dou%t as to the o%ligatory character of that rule of ould further the goal of international la , hich is to promote sta%le and organi$ed international relations.

In summary, the methodology of the Court in %oth cases does not differ much from each other. /he Nicaragua case reiterates the methods of analysis laid out in the North Sea case and only refines them in so far as necessary to clarify or strengthen such methodology.