interests are specially affected, should have been both extensive and virtually uniform and should have occurred in such a way as to show a...
interests are
specially affected, should have been both extensive and virtually uniform and
should have occurred in such a way as to show a general recognition that a rule
of law or legal obligation is involved.2I
In the Nicaragua
case (Merits), the Court, while referring to the occasional violations of the
principle of non-intervention, stated: "The court does not consider that
for a rule to be established as customary, the corresponding practice must be
in absolutely rigorous conformity with the rule. In order to deduce the
existence of customary rules ... the conduct of States should, in general, be
consistent with such rules and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule
and not as indication of the recognition of a new rule".
Thus, the
conduct creative of customary rule must be regular, repeated and also uniform.
Material departure from a practice may negativate the existence of a customary
rule, but minor deviation may not necessarily negativate the rule. Apart from
recurrence, the antiquity of the acts
(Usage) may be an important clement its accept5anct.
As a customary rule. In the face of inconsistency, the length of time over which
a particular practice has been followed will become a relevant. Though not a Miter
facto! It has, however, been suggested that a rule will not be binding on a
State which has maintained its
dissent throughout the rule's formative period.
In the Anglo-Norwegian Fisheries caw, the limited Kingdom argued unsuccessfully
that the 10 mile rule in cases of bays. %AS an established principle of
customary
international law. The Court, while rejecting this contention, stated
that even 11 it had acquired the authority of general international law, it
"would Appear to he inapplicable as against Norway in as much as she has
always opposed any attempt to apply it to the Norwegian coast".2' The
United States Restatement also
similarly observes: In 'wimple, a State that
indicate:, its dINSCilf from a practice while the law is still in the process
of development is not bound by that rule even after it matures. Historically,
such dissent and consequent exemption from a principle that became a general
customary law has been rare.44 Rut once a custom has been established, the
subsequent dissent by a State would not affect the sanctity of the rule unless.
either by following the same process through which the earlier rule wa% created
or through any other law-creating process, the new rule is laid down. This
invariably is a slow process with an interim period of uncertainty
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