3 The Third Element

This chapter focuses on the norm-creating character of the standard whose customary status is tested as another possible constitutive element of customary international law. It examines the third constitutive element of customary international law, which is the common recognition by international law of the enormous definitional powers to the International Court of Justice when it comes to the custom-identification criteria. It also explores the discursive performance that consists of the constant turning of a blind eye to a specific claim made by the Court in the 1969 North Sea Continental Shelve. The chapter highlights the 1969 North Sea Continental Shelf wherein the Court confirmed the dualistic approach and the consciousness of having a duty may be in order to offer an articulate definition of opinio juris for the first time. It argues that the requirement that the standard whose customary status is tested must be norm-creating as it was prescribed by the Court in the North Sea Continental Shelfcase.