CYIL vol. 9 (2018)

PAVEL ŠTURMA CYIL 9 ȍ2018Ȏ difficult to find much affirmative State practice (as opposed to inaction)”. 10 Paragraph 2 then states that “each of the two constituent elements is to be separately ascertained.” However, this does not exclude the same material (for example an official report issued by a State) being used to ascertain practice and opinio juris . Part Three offers more detailed guidance on “general practice”, also known as the “material” or “objective” element. Conclusion 4, para. 1, makes it clear that it is “primarily the practice of States that contributes to the formation, or expression, of rules of customary international law”. 11 The world “primarily” emphasizes the primary role of State practice in the formation and expression of customary international law, but also refers the reader to the other practice that contributes to that process. Nevertheless, it is true that the draft conclusions give a limited role for practice other than the State practice. Paragraph 2 provides that “in certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” By contrast, paragraph 3 makes it explicit that the conduct of other actors, including NGOs, “is not practice that contributes to the formation, or expression, of rules of customary international law, but may be relevant when assessing the practice referred to in paragraph 1 and 2”. 12 Conclusion 5 explains that State practice consists of any conduct of the State, “whether in the exercise of the executive, legislative, judicial or other functions”. 13 In turn, conclusion 6 indicates that “practice may take a wide range of forms. It includes both physical and verbal acts. It may, under certain circumstances, include inaction.” 14 Paragraph 2 then provides a non-exhaustive list of forms of practice. 15 Paragraph 3 clarifies that there is no predetermined hierarchy among the various forms of practice. Debate within the Commission took place, in particular as to whether inaction has to be deliberate or conscious. Conclusion 7 concerns the assessment of the practice of a particular State. It makes clear that it is necessary to take account of and assess as a whole all available practice of the State concerned. 16 Conclusion 8 provides that the practice “must be general, meaning that it must be sufficiently widespread and representative, as well as consistent”. Paragraph 2 refers to the time element and clarifies that “provided that the practice is general, no particular duration is required”. 17 In spite of the large and controversial debate, the conclusion itself does not address “specially affected States” but this concept is reflected in the commentary. 18 Part Four concerns the second (“subjective” or “psychological”) constituent element of customary international law. Conclusion 9 explains that the requirement “that the general practice be accepted as law ( opinio juris ) means that the practice in question must be

10 Ibid., p. 8, § 4. 11 Ibid., p. 10. 12 Ibid., p. 10. 13 Ibid., p. 12. 14 Ibid., p. 13.

15 Ibid.: “Forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct ‘on the ground’; legislative and administrative acts; and decisions of national courts.”

16 Ibid., p. 15. 17 Ibid., p. 16. 18 Ibid., p. 17, § 4.

368