Legal obligations derived from legitimate expectations created in others by conduct Consider Hutton v Warren (1836) 1 M&W 460 Replaces natural law: What God ordains changes into ‘the way things are done’
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What are the problems with custom?
Problems: What about new members of the society, i.e. new States? What about those who have never engaged in the ‘conduct’?
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Why not view UN General Assembly resolutions as creating custom?
Voting cannot be said to indicate ‘practice’ GA resolutions more usually considered to demonstrate opinio juris Legality of the Threat or Use of Nuclear Weapons ICJ, 1996
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How many States does a ‘custom’ need?
Consider the Rights of Passage over Indian Territory case Portugal argues a custom exists between it and India ICJ sees “no reason” why long continued practice between two States and accepted by them as regulating their relations should not form the
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Local Custom?
Customs only applicable between a defined group of States Primarily a Latin American phenomenon Right to grant asylum to political fugitives Asylum case (Columbia/Peru) ICJ Reports, 1950 Haya de la Torre case (Columbia/Peru) ICJ Reports, 1951
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Other cards in this set
Card 2
Front
What are the problems with custom?
Back
Problems: What about new members of the society, i.e. new States? What about those who have never engaged in the ‘conduct’?
Card 3
Front
Why not view UN General Assembly resolutions as creating custom?
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