Open Access Research Article
CUSTOM AS A SOURCE OF INTERNATIONAL LAW
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Article Details
CUSTOM AS A
SOURCE OF
INTERNATIONAL
LAW
AUTHORED BY - YATI YADAV
International law that is based on
what nations typically do or believe in is known as customary law. It plays a
significant role in international law. Custom is one of the key ways to
construct international law, along with general norms of law and treaties,
according to legal experts, the United Nations, and its member nations.
People may disagree on the specifics
of customary international law, yet most nations acknowledge its existence. The
two basic components of customary international law are opinio juris and
sufficient state practice.
The International Law Commission
offered instances of proof that can support customary international law in
1950. Examples of these include international agreements, judgments rendered by
courts from many nations, national laws, recommendations from legal experts in
each nation, conversations between diplomats, and actions conducted by
international organizations. On how to acknowledge international laws that are
frequently accepted and adhered to by nations, the Commission adopted a
decision in 2018. The group of UN members appreciated the findings and urged
wide dissemination of them.[2]
Introduction
The source of international law[3] is
influenced by a variety of factors. These include international treaties,
internationally recognized laws, scholarly works, judicial rulings, and
universally accepted fundamental concepts.
The International Court of Justice's
Statute lists several elements, including customs, as sources of international
law in Article 38 [4](1)[5]
Customary international law [6]refers
to legal obligations that arise from longstanding traditional practices among
countries. Customary international law is a type of law that is created and
followed by countries. It is based on their consistent and similar actions,
which set an expectation for future behavior.
Customary international law has two
parts: the actions of countries (state practice) and the belief that these
actions are required, not allowed, or allowed, depending on the type of rule,
as a legal matter (opinio juris)
Since the beginning of time, customs
have been a significant component of legislation. Some authorities think that
laws are made in large part through customs, whether they are social or
cultural. Customs used to be the greatest authority and governed how people
behaved in the past before complex legal systems were in place. The same idea
applies to international law. This article tries to comprehend the significance
of customs in international law, to determine whether their significance has
changed over time, and to evaluate how customs might be utilized to settle
international conflicts.
Nature and
Usage of Custom[7]
§ Nature
Customs are flexible and open to
improvements, rejections, and alterations throughout time. Because conventions
are not codified laws and lack precision, they are less consistent than
positive laws. Therefore, doubting the existence of a custom will not cause it
to be recognized as law; instead, a custom must be consistent, common, and
uniform to qualify as law. Furthermore, the North Sea Continental Shelf Cases
made it very evident that customs are not the same as customary law. The
International Court of Justice periodically put forward such requirements of
customary international law, including the state practice and opinio juris that
were previously discussed.
The interpretations of the
International Court of Justice's requirements of customary international law
have to be discussed as part of its nature, which will be explained under the
usage and legal validity of customs hereinafter, as the court is expected to
decide the acceptability of claims regarding current customary practices.[8]
§ Usage
According to the International Court
of Justice, a tradition must be regularly followed and taken as law to qualify
as a legal system. However, it is seldom certain if someone had a good cause to
think they were required by law. Making decisions based on opinio juris[9]
has always been challenging. You can gain a general knowledge of how the court
has handled several instances involving customary international law and
assessing the legitimacy and legal authority of these traditions by reading the
explanation that follows.
Here are a few court decisions where
individuals are debating whether customs are a respectable source of law.
o
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark
and The Netherlands)[10]
These instances demonstrated that
opinio juris must also be proven for a custom to be recognized as law; state
practice alone will not suffice.
Even though there may be state
customs, the ratio argues that governments may adhere to them out of
"courtesy, convenience, or tradition, and not out of any sense of legal
duty." Opinion of the law should be established as a result. Through this
illustrative case, the idea of Instant Customary Law was also brought to light.
o
Asylum case (Colombia v. Peru)[11]
According to the ICJ's ruling in this
case, "Where a local or regional custom is alleged, it is the burden of
the proponent to prove that this custom is established in such a manner that it
has become binding on the other party." The situation also complies with
the dictum that "custom is developed and becomes enforceable if it is by a
consistent and uniform use practiced by the States in question. There ought to be proof that such a practice
exists.
o
Pacquete Habana Case[12]
In the Pacquete Habana Case (U.S.
Supreme Court, 1900), the court considered State laws and practices, treaties,
writings of publicists evidencing usage, and court decisions. The court held
that these materials consistently demonstrated the existence of a valid
customary rule giving immunity to small fishing vessels, honestly engaged in
their trade, from belligerent capture during times of war.
The court concluded that in order for
a custom to be considered international law, it must be demonstrated via
sufficient evidence that it has the support of all nations and that no
civilized nation will object.
In light of the aforementioned legal
authorities and additional instances involving comparable issues, 31 it is
possible to draw the following conclusions about the basic features of
customary law:
a) Both opinio juris and state
practice need be proven, and
b) Both notions are intertwined.
c) The dissemination of state
practice occurs through administrative acts, legislation, judicial rulings,
etc.
International
Customary Laws[15]
According to the International Court
of Justice, "international custom" can be used as proof that a
widespread practice is recognized as the law. This is yet another essential
resource for world law. It is not necessary to regard any routine behavior or
habit as a conventional law. There are a few key requirements that must be met for
something to be recognized as international customary law.
Criteria
A custom must meet two requirements to
be considered law.
o
State
Practice
The various elements that go into how
states operate include things like how long, how frequently, and how widely
they act in a particular way. A custom must have been utilized or followed for
a very long time without ceasing or changing to be regarded as a law. This urge
is described by the term "usus."
The International Court of Justice
stated in 1969 that even though a practice has only been around for a short period,
a rule of customary international law can be formed if many individuals adhere
to it. The North Sea Continental Shelf cases brought this to light. The law
that is applied immediately is known as this.
o
Acceptance
of the legal nature of practice
This is often referred to as "opinio juris," and it denotes
that there must be more than just a long history of use for a practice to
qualify as a law. To use something, you must obtain permission from the
government or another authority, and they must acknowledge that your usage is
appropriate and not merely a matter of personal preference. According to the
North Sea Continental Shelf Cases, activities must not only be taken
consistently but also with the conviction that doing so is required by law to
be regarded as settled practice.
o
Effect
Once a tradition is acknowledged as a
universal law, all governments are expected to uphold it, regardless of whether
a state has offered its unqualified sanction or not. The actual situation in
which a special case may be created is if a particular state has disagreed with
the practice or usage from the time, it first began. At that stage, it must
look that the protest is supported by evidence, and that evidence must carry a
significant amount of weight. Governments are therefore required to act in a
manner consistent with international customary law, which is not at all the
case with agreements or customs. This is arguably the biggest advantage of
normal law over settlement law.
Recognizing
international customary law
Customary international law is
described as "a general practice accepted as law" under Article 38(1)(b)
of the International Court of Justice Statute. This is typically defined by two
things: what states ordinarily do and what they have recognized as law (opinio
juris sive necessitatis). This indicates that many states, especially large
ones, must practice it and that states do so out of a sense of duty to the law
rather than out of habit or custom.
States recognize several different
types of customary international law. As non-derogable rights recognized by the
international community, some customary international rules become jus cogens,
but others may only be adhered to by a small number of nations. Whether or not
these laws have been domestically or through treaties codified by the states,
they are usually bound by customary international law.
Jus cogens
The international community of states
recognizes a peremptory norm—also known as jus cogens, which is Latin for
"compelling law"—as a fundamental principle of international law from
which no deviation is ever permitted (non-derogable). Natural law principles
serve as the foundation for these standards, hence any legislation that clashes
with them should be regarded as invalid. A state violates customary
international law if it permits or participates in slavery, torture, genocide,
war of aggression, or crimes against humanity, among other international
crimes.
Jus cogens refers to crucial
standards of international law that every nation must uphold. It is distinct
from international customary law. A statute becomes international law when a
state ratifies it. However, not all customary international norms are
equivalent to unalterable rules. States have the authority to enact accords and
regulations that conflict with long-standing international norms. However, it
is forbidden to disregard some core tenets of international law.
Customs and
Treaties / Conventions[16]
Customs are typically not recorded.
They are ways that a group of individuals express their needs through their
ideas or behaviors. Customs are typically impulsive behaviors or patterns of
behavior related to a certain subject that spread throughout society as a
result of frequent observance and application. Treaties, on the other hand, are
formally binding agreements made by members of the UN, or more precisely,
international law. There are some parallels between reservations and the
persistent objector rule in customary law.
In addition, formality makes it
harder than customs to decide whether to accept or reject someone. Many writers
argue that treaties and common law are intertwined. My name is Baxter.
However, it was made apparent in the
North Sea Continental Shelf ruling that there are only a select few
circumstances in which a treaty can faithfully reflect the accepted norms and
values of numerous nations around the world.
a) The agreement might have produced
new regulations that were embraced by all nations.
b) A treaty could codify a developing
principle of international customary law and ensure its universal acceptance.
c) Once the treaty has been formally
ratified, it could take on the force of international law through prevailing
customs.
o Customs and General Principles
Recognized by Civilized States
The fundamental ideas shared by
civilized groups are typically based on customary values. Ideas and customs are
closely related since customs are the foundation of all systems.
o Customs and Judicial Decisions
As previously indicated, court
decisions affect whether or not a custom is regarded as a legitimate source of
customary law. Just because something is done frequently does not make it a
rule. There are certain conditions, which the courts explain in light of the
particulars of the case. It is evident from court rulings if something is
allowed or not.
o Customs and Scholarly Writing
Scholarly writing incorporates
several points of view, assertions, justifications, and conclusions from a
variety of sources. Traditions can be crucial in academic works that attempt to
support a particular theory, although they are not always required. Various
points of view on traditions have been expressed by numerous academics.
For instance, diverse perspectives on
customary law were held by individuals by the names of Kelson, R. Baxter, and
Francois Geny, and these perspectives were critical to the development of the
area.
o Custom as a means for the development
of International Law
The Vienna Convention acknowledges
that customs unquestionably played a significant role in the creation of laws.
This also holds for the creation of international laws. Important components of
customary law include Jus Cogens, Obligatio Erga Omnes, and multilateral
accords or treaties that established laws against genocide, torture, and
slavery. Additionally, the aforementioned modifications to customary
international law demonstrate how, along with other conflict-resolution
techniques, customs have contributed to the protection and upholding of human
rights.
A norm of international law known as
jus cogens was created based on convincing evidence. The Vienna Convention's
Article discusses international law, which many theorists refer to as customary
law.
According to what has already been
said, customs or customary international law is a reliable method of
establishing rights in international law. However, this does not imply that
ambiguous or perplexing circumstances have no impact on customs.
Other Sources of International Law[17]
Article 38 is not exhaustive because
there is no full body of norms governing international law. Fairness, equality,
and other considerations, as well as UN pronouncements and recommendations, all
have an impact on international law.
Because the world is always changing
and issues are becoming more complex, decisions taken by assemblies have a
significant impact on how current international rules are fashioned. States'
votes in the General Assembly and the justifications they provide reveal their
voting practices and legal literacy.
As an example, in the case of USA v.
Nicaragua, the court questioned whether it was permissible under international
law for nations to use or threaten to use nuclear weapons. The Security
Council's resolution on this matter was examined by the court along with other
significant international law documents. They discovered that using or
threatening to use nuclear weapons often violates the laws of war established
by international law, particularly those about treating people with humanity.
The idea of fairness has been brought
up in numerous cases. Fairness was acknowledged by the court in the 1968
India-Pakistan Rann of Kutch dispute as a crucial component of international
law. They claimed that the nations may present their cases using these
concepts.
The United Nations has recognized the
urgency of advancing international law more quickly and applauded initiatives
to close gaps in the representation of other sources of international law.
Additionally, this group's initiatives have improved the way laws are created.
Resolutions and hastened decision-making procedures involving 15 members of the
Security Council and 191 members of the General Assembly are used to accomplish
this.
Conclusion
and current state of custom as a source of international law
In conclusion, customs played a
significant role in the development of a comprehensive set of international
rules, and their legacy continues to this day. Both proponents and opponents of
adopting customs as a basis of international law have made strong arguments.
According to some experts, as written laws have proliferated, customs have lost
some of their significance.
However, some individuals are
debating whether it is vital to have unique rituals given the current state of
the world.
Because of state rivalry for trade
and power, the ambiguity of customary law, and the lengthy process involved in
using customary law to resolve disputes, the significance of customary law/customs
as a source of public international law has waned. Furthermore, it held the
view that Western colonial powers pushed many of the customs that are observed
by many nations in Asian and African countries. It thus led to these countries'
resistance to their customs, which diminished their significance.
Customs, on the other hand, are
distinct from written-down treaties and laws. Customs are very significant and
changeable. It is impossible to break social norms.
Moreover, in terms of human rights, the
obligation of nations to preserve those rights, and other legal systems,
traditional behaviors, and customs have taken on greater significance as laws.
So, it is possible to claim that even
while other sources have made customary law less powerful than it once was, it
is still powerful since it embodies the desires of all governments and
citizens.
[1]
This Research Paper article is authored by Yati Yadav, a 5th-year
Year Law Student at Manav Rachna University’s School of Law.
[3] Public international law concerns
how nations and related organizations interact and conduct themselves.
Multinational enterprises and individuals may also be marginally impacted by
international law, and this impact is rapidly extending beyond how local laws
are perceived and applied. Public international law has grown in significance
and application over the past 20 years as a result of increased international
trade, environmental damage, concern for human rights abuses, international
travel, and global communication.
[5] Article 38(1) of the International
Court of Justice's statutes
The Court will use the following sources to decide any
disputes that are brought to it in accordance with international law:
a. general or specific international conventions
establishing rules expressly recognized by the contesting states;
b. international custom as proof of a widespread
practice accepted as law;
c. the general principles of law acknowledged by
civilized nations; and d. subject to the provisions of Article 59, judicial
decisions, and the Tribunal's rulings.
[6] In accordance with Article 38 of
its rules, the International Court of Justice is supposed to "follow
international customs" and base its rulings on international law. As a
result, the Court is required to take into account actions that are frequently
acknowledged and regarded as legitimate.
[9] “When a majority of nations agree
that having a binding legal rule or principle prescribing, allowing, or forbidding
particular behavior is desirable now or in the near future, it becomes a
customary international law norm. This opinion qualifies as opinio juris and is
sufficient to establish a standard of customary law.”
[10]
Decided in the International Court of
Justice on February 20, 1969
[14] Citation: – 1905, 2 King Bench 319
Article Information
CUSTOM AS A SOURCE OF INTERNATIONAL LAW
Authors: YATI YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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