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Discuss the significance of the problems of defining customary international law

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  1. Definition of custom
    1. Practice
    2. Opinio juris
  2. Scope of custom
    1. Dissenting States
    2. New States

States gathered in the international community have created legally binding rules in order to develop international relations. International law differs from domestic law in that the subjects of the rules are also the legislators: States abide by the rules they have themselves created. Article 38 of the ?Statute of the International Court of Justice' enumerates the sources of international rules, the two most important ones being treaties and custom. Custom, contrary to treaties, is not written and is believed that it is not a deliberate lawmaking process. Treaties are written agreements that are imposed only on the parties that are bound to the treaty. On the contrary, the process of creating a rule of customary international law is less clear and definitely has a wider scope. The definition of the international custom is given by the same article 38.1(b) of the ?Statute of the International Court of Justice'. International custom, as evidence of a general practice accepted as law implies that customary international law is made up of two elements: practice of the States, and the States' conviction that they are actually obeying a rule of law.

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