International law
Role of customary international law in shaping state behavior and filling gaps where treaty law remains unsettled.
Customary international law operates in parallel with treaties, guiding state conduct when written agreements are silent or incomplete, evolving through practice and perception, and often bridging normative gaps that treaties do not fully address.
July 23, 2025 - 3 min Read
Customary international law emerges from consistent state practice accompanied by a belief that such practice is legally obligatory. This twofold requirement—state behavior and opinio juris—distinguishes customary norms from mere habits. Over time, ordinary actions like diplomatic protests, border management, or restraint in the use of force can crystallize into enduring rules. Even when no treaty governs a particular situation, widespread and representative conduct among states may create binding expectations. Customary rules gain legitimacy not through a single agreement, but through cumulative acceptance by diverse actors, including small and large states, international organizations, and regional bodies. As a result, customary law often supplies the practical scaffolding that treaties lack.
The dynamic relevance of customary law is most evident in rapidly shifting arenas such as cyber conduct, environmental protection, and humanitarian intervention. In these areas, formal negotiations may lag behind technological and geopolitical changes, leaving treaty provisions vague or nonbinding. Customary norms can offer immediate clarity about permissible behavior, proportional responses, and the protection of civilians during emergencies. They reflect long-standing principles—like the obligation to refrain from aggression or to safeguard noncombatants—that remain persuasive even when treaty language is underdeveloped. Critics worry that customary law can be opaque or selective, but defenders argue that its interpretive flexibility allows states to adapt while preserving core legal commitments.
Practice and belief together form enduring normative expectations.
A central advantage of customary international law is its resilience in the face of treaty fragility. When agreements fail to address a novel threat or leave room for differing interpretations, customary norms provide a baseline of conduct that states recognize as lawful or unlawful. This is not a fixed relic of the past; rather, it is a living tradition that evolves as state practice shifts. Courts and tribunals frequently rely on customary rules to resolve disputes where treaty text is insufficient or ambiguous. Judges may consult historical instances, discretely observed actions, and the apparent consensus among the international community to determine whether a given behavior aligns with established norms.
Yet reliance on customary law requires careful, transparent reasoning to prevent arbitrariness. Jurists stress the need for continuity in practice and a demonstrable sense of obligation across diverse actors. This combination helps ensure predictability in international relations and reduces the risk of opportunistic behavior that could undermine stability. While some states may resist developments perceived as encroaching on sovereignty, broad participation in relevant practices tends to bolster legitimacy. Effective enforcement mechanisms, including reciprocal sanctions, diplomatic negotiations, and judicial review, can reinforce customary norms without awaiting the slower machinery of treaty revision.
Legitimacy hinges on broad, representative participation.
The relationship between customary law and treaties is not adversarial; rather, treaties often draw upon customary norms as their underlying foundation. When negotiators craft new agreements, they frequently assume that certain universal rules already govern state behavior. This shared baseline reduces negotiation time and helps translate ethical commitments into enforceable obligations. In post-conflict or transitional contexts, customary norms frequently guide the design of transitional justice mechanisms, even before formal treaties are updated or ratified. States may also rely on customary principles to interpret vague treaty clauses, thereby ensuring consistent application across borders and administrations.
Critics emphasize that customary law can be slow to codify and sometimes biased by powerful states. They point to the risk that entrenched interests shape practice rather than genuine consistency of belief. Proponents counter that the emergence of customary norms reflects a broad spectrum of voices over time, including civil society and regional coalitions, which tempers dominance by any single actor. Moreover, the dynamic interplay between practice and belief acts as a corrective mechanism: when a practice loses legitimacy or is widely rejected, the customary norm can be reconsidered or even abandoned through collective action and formal treaty revision.
Courts and norms reinforce predictable, cooperative behavior.
The process by which customary law becomes widespread often hinges on gradual convergence among states on specific issues. Observers examine patterns of formal statements, diplomatic correspondence, and nonbinding resolutions to assess whether a practice constitutes a prevailing expectation. Regional variations may appear, yet a core set of norms tends to emerge that transcends borders. The legitimacy of these norms rests on perceived universality and practical utility. When states accept a customary rule as binding, enforcement becomes more predictable, and the likelihood of escalatory responses to disputes diminishes. This cohesiveness supports a stable international order built on shared understandings rather than unilateral coercion.
In practice, courts frequently rely on customary law to adjudicate cases involving fragile or evolving regimes. They consider whether a state has consistently acted in a manner consistent with the norm and whether it subscribes to the corresponding obligation. Even in contentious areas, such as the limits of humanitarian intervention, judicial bodies look to customary rules to interpret ambiguous treaty language and to balance competing values like sovereignty and human protection. This judicial recourse helps preserve a degree of legal coherence, allowing smaller states to align with widely accepted expectations without forcing expansive multilateral agreements that may be politically impracticable.
Norms support stability by guiding restraint and responsibility.
Customary law also interacts with soft law, where nonbinding norms set aspirational standards that states gradually convert into formal obligations. Soft law can serve as a testing ground for ideas before they crystallize into treaties. States may issue declarations or participate in multilateral forums to articulate shared expectations, then gradually incorporate those expectations into binding agreements or customary practice. This gradualism minimizes disruption while promoting alignment on sensitive topics such as conflict prevention, sanction policies, and the protection of cultural heritage in armed conflicts. Through this staged approach, the international community shifts from intention to obligation with greater legitimacy.
The practical influence of customary norms extends to accountability processes as well. When violations occur, customary law can guide investigators toward appropriate standards of conduct, proportionality, and remedies. It also helps establish thresholds for state responsibility in cases of failure to prevent harm or to exercise due diligence. Although enforcement remains uneven, international bodies increasingly draw on customary principles to justify sanctions, diplomatic pressure, or restorative measures that aim to restore legitimacy and deter repetition. The result is a more nuanced system in which moral suasion and legal obligation reinforce one another.
The role of customary international law in shaping state behavior often emerges most clearly in crisis situations where treaty options are exhausted or contested. In such moments, customary norms offer a tacit rulebook for restraint, proportionality, and the protection of noncombatants. They help prevent reckless escalation by providing a shared reference point that states recognize as morally and legally binding. This is particularly important when rapid decisions are required, and formal negotiations would slow down essential responses. By grounding urgent actions in established norms, states reduce the chance of miscalculation and broaden the space for peaceful resolution.
Looking ahead, customary international law will likely continue to evolve alongside changing power dynamics and technological advance. As new domains of activity appear—such as space governance, cyber security, and transboundary pollution—customary rules may be refined to reflect contemporary realities while preserving timeless principles of restraint, reciprocity, and respect for human dignity. The ongoing challenge is to ensure that practice remains representative, transparent, and accessible to as many actors as possible. If these conditions hold, customary law will continue to function as a flexible, legitimizing backbone of the international legal order, complementing treaties and filling enduring gaps where written agreements lag behind practice.
