Customary International Law Case Study

What is the current status of the right to protect nationals under customary international law in light of the Crimea situation?

Introduction

Article 38 of the ICJ Statute lists customary international law as a source of international law. Customary international law arises from how states behave towards each other. An analysis will consider the acts of a state and whether the state is acting out of a sense of legal duty/obligation. When a customary international rule is formed it is binding upon all states even if a codified treaty rule is contrary to it. The customary international rule will usually prevail. The two elements required to form a customary international law are: 1) uniform and consistent state practice over time; and 2) opinio

Any assessment to of state practice must come to the conclusion that it is sufficiently robust to be classified as an element contributing to a customary international law. To establish a rule of customary international law, State practice has to be “extensive and virtually uniform”, widespread and representative. There is no prescribed time period for the custom to be in existence, but a clear trend must be shown.

Overview of Opinio Juris

The subjective element, opinio juris, is the hotly debated part of customary international law. It is more difficult to come to a concrete conclusion on because it is more difficult to prove. States acts because they feel “legally compelled” to do so. Evidence of what states believe in can be deduced from governmental departments and officials, legal officers, legislative institutions, courts, diplomatic agents and statements of political leaders. The two elements are required. State practice without opinion juris or the other way around will not be

1) It must be proved that the life of a state’s citizens is under threat on the territory of foreign state 2) the other state must be unwilling or unable to offer sufficient protection, and 3) it must be an option of last/only resort. The intervening state carries the burden of proof that violations are taking place. This the most concrete widespread and uniform understanding of the scope of the right to the protection of nationals under customary international law. Its specific requirements mean that it can only fully implemented in special cases.

Overall though while trying to expand further, the legality of the right to protection of nationals remains unclear. It appears to be a highly politicized issue that has yet to reach an affirmative understating under customary international law. It is still evolving. What is clear is that there is an international community acceptance of the limited extraction of foreign nationals for their protection in certain circumstances outlined above. However, the right to protect nationals does not extend to a continued military presence, as is occurring in