How Do You Determine The Elements Of International Custom Under International Law?
• Look for evidence of international custom. There is a range of material indicators that might assist in determining that a custom has arisen under international law amongst states. For example, look for evidence in such items as diplomatic correspondence, the opinions of legal advisers working in international organisations or in governments, manuals on legal issues written for governments or international organisations, legislation at the national level of governments, the judicial decisions of international and/or national courts or tribunals and recitals in treaties etc. Other possible material indicators might include resolutions by the UN General Assembly in response to legal questions, practices of international organisations etc. • Treat evidence of material indicators with care. Always consider the context of the documentation or practices and consider whether the surrounding circumstances support an overall indication of custom or not. • Note that there is no rule concerning
