Custom or Customary International Law means “a general and consistent practice of states followed by them from a

sense of legal obligation.”

Elements of customary international law: material factor or how states behave, and subjective factor or why they
behave the way they do.

Elements of material factor: duration, consistency, and generality of the practice of states.

Duration: In Germany vs. Denmark or the North Sea Continental Shelf Case, the ICJ held that a short duration, by itself,
will not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied:

xxxxx Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of
a new rule of customary international law on the basis of what was purely a conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State practice, including that of
states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the
provision involved – and should moreover have occurred in such a way as to show a general recognition that a rule of
law or legal obligation is involved. xxxxx

Duration therefore is not the most important element. What is important is the consistency and generality of the
practice.

Rule on consistency: Columbia v. Peru or the Asylum case

Uniformity and generality of practice need not be complete, but it must be substantial.

Existence of customary rules: Nicaragua v. U.S.

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.

Opinio Juris

- The belief that a certain form of behavior is obligatory. This will make the practice an international rule.
- In Nicaragua v. U.S. the conduct must constitute as an evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.

Generally accepted principles of International law

Germany v. Poland or the Chorzow Factory Case: it is a general conception of law that every violation of an engagement
involves an obligation to make reparation.

Jus Cogens

- are rules which correspond to the fundamental norm of international public policy and in which cannot be
altered unless a subsequent norm of the standard is established.
- Four Criterias for jus cogens: status as a norm of general international law, acceptance by the international
community of states as a whole, immunity from derogation; and modifiable only by a new norm having the
same status.
- The U.S. v. Nicaragua case affirmed jus cogens as an accepted doctrine in international law. The ICJ relied
on the prohibition on the use of force as being a “conspicuous example of a rule of international law having
the character of jus cogens.”
- Customary international law is binding only in the case of an established opinion juris wherein a state
believes to be bound by a said practice due to its creation from customary rule. On the other hand, jus
cogens rules are binding regardless of the consent of the parties concerned and regardless of the state’s
own individual opinion to be bound since these rules are too fundamental for states to escape liability.

Differences:

- Jus cogens is a norm accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same characer.
- Jus cogens creates an erga omnes obligation for states to comply with a rule. An erga omnes obligation is
therefore the consequences of a rule being characterized as jus cogens.
- Jus cogens confers upon a set of norms such as those contained in the Geneva Convention of 1949, a
hierarchical superiority among all other norms of International Law. Jus cogens are essentially elevated
subsets of Customary International Law. It relates to the status of the given norm. On the other hand,
obligations erga omnes confer a right of standing pertaining to the said norms which often overlap with
those covered under jus cogens.
- Jus cogens are codified customary international laws which binds all states be it a party or not. Customary
International Law is not codified. Erga Omnes are norms applicable to all norms.