Volume 18, Issue 3 (2014)
CLR 2014, 18(3): 77-100 |
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Zarneshan S. The Concept and Nature of Objective Element in the Formation of Customary International Law. CLR 2014; 18 (3) :77-100
URL: http://clr.modares.ac.ir/article-20-293-en.html
URL: http://clr.modares.ac.ir/article-20-293-en.html
Assistant Professor, Department of Law, Bu-Ali Sina University, Hamadan, Ira
Abstract: (12451 Views)
It is necessary two elements are placed next to each other for the formation of customary international law: Objective element (practice) and Subjective element- opinion juris sive necessitated. About the former element, although some writers say that physical actions contribute in the process of making practice alone; dominant approach in the framework on the basis of international judicial practice indicated the acceptance of any act - physical or statement - as evidence for the objective element of custom. Also, in the context, omission of states may play a role under some conditions. Likewise, in most cases, international judge has no other choice but to consider recognizing the double elements of custom from the existing sources only based on a single act.
This situation would complicate the issue more; something which basically governs in the entire area of the formation of customary international law. So we should remark that the subject of customary law, in general, is one of the important debates in the international law system.
* Corresponding author’s E-mail: Szarneshan@ yahoo.com
* Corresponding author’s E-mail: Szarneshan@ yahoo.com
Received: 2014/08/24 | Accepted: 2014/12/20 | Published: 2014/12/21
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