Sasi K.G.
01. INTRODUCTION
International
Customs is a developing branch of International Law. There is ample scope for
the study of International Customs, not only in respect of relations between
States, but also in respects of International Organizations and individuals.
International Law having no legislations and mainly based on consents of
States, in cases of ambiguous situations, can only resort to customs.
02. CUSTOMS
01. Custom in jurisprudence
Custom
can be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was
considered as one of the most important sources of law or rather as the real source
of law. With the passage of time and the advent of modern civilization, the
importance of custom as a source of law diminished and other sources such as
judicial precedents and legislation gained importance.
There
are two views on whether custom is law. Jurists such as Austin opposed custom
as law because it did not originate from the will of the sovereign. Jurists
like Savigny considered custom as the main source of law. According to him the
real source of law is the will of the people and not the will of the sovereign.
The will of the people has always been reflected in the custom and traditions
of the society.
Salmond said that ‘Custom is the embodiment of those
principles which have commended themselves to the national conscience as the principles
of justice and public utility’.
Keeton said that “Customary laws are those rules of
human action, established by usage and regarded as legally binding by those to
whom the rules are applicable, which are adopted by the courts and applied as a
source of law because they are generally followed by the political society as a
whole or by some part of it”.
However, Austin said that Custom is not a source of law.
Roscoe Pound said that Customary Law comprises of:
1. Law formulated through Custom of popular action.
2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific
discussions of legal principles.
02. Kinds of Customs
Customs
can be broadly divided into the following classes.
Customs without sanction
These
customs are non-obligatory in nature and are followed because of public
opinion.
Customs with sanction
These
customs are binding in nature and are enforced by the State. These customs may
further be divided into the following categories:
Legal Custom
Legal
custom is a custom whose authority is absolute; it possesses the force of law.
It is recognized and enforced by the courts. Legal custom may be further
classified into two types namely General Customs and Local Customs.
General Customs
These customs prevail throughout the territory of
the State.
Local Customs
These are applicable to a part of the State, or a
particular region of the country.
Conventional Customs
Conventional
customs are binding on the parties to an agreement. When two or more persons enter
into an agreement related to a trade, it is presumed in law that they make the
contract in accordance with established convention or usage of that trade. For
instance an agreement between landlord and tenant regarding the payment of the
rent will be governed by convention prevailing in this regard.
03. Essentials of a valid custom
All
customs cannot be accepted as sources of law, nor can all customs be recognized
and enforced by the courts. There are some essential tests for customs to be
recognized as valid sources of law. These tests are summarized as follows:
Antiquity
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs. In India so such specific period is fixed.
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs. In India so such specific period is fixed.
Continuity
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Peaceful Enjoyment
There should be
a peaceful enjoyment of a customary right without interruption to make it a
valid custom.
Custom
must be enjoyed openly and with the knowledge of the community. It should not
have been practiced secretly. A custom must be proved to be a matter of right.
A mere doubtful exercise of a right is not sufficient to a claim as a valid
custom.
A
custom must conform to the norms of justice and public utility. A custom, to be
valid, should be based on rationality and reason. If a custom is likely to
cause more inconvenience and mischief than convenience, such a custom will not
be valid.
Morality
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practiced for immoral purpose or were opposed to public policy.
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practiced for immoral purpose or were opposed to public policy.
Status with regard to Legislation
In
any modern State, when a new legislation is enacted, it is generally preferred
to the custom. A custom must not be opposed or contrary to legislation. Many
customs have been abrogated by laws enacted by the legislative bodies. For
instance, the customary practice of child marriage has been declared as an
offence in India by the introduction of legislation.
Obligatory Force
There should be an obligatory force for a custom to
become valid.
Certainty
The wordings or
practices of custom should be certain and should not be ambiguous.
Consistency
There should be consistency of the custom with the
various parts of the customs and with other customs or laws.
03. LAW
Etymologically ‘Law’ is an English word
derived from German word “Lag” which means constant, unmovable, static
or plane.
01. Definitions of Law
Some important definitions of law are quoted
below.
Aristotle: “Whatever
the ruling party enacts is called law.”
John Austin:
“Law is the command of sovereignty.”
Woodrow Wilson:
“Law is that portion of establishing thought which has distinct & in the
shape of uniforms backed by the authority & power of state.”
Holland:
“Law is general rule of external action enforced by sovereign political
authority.”
J.C. Carter:
“Law always has been still is and will forever continue to be custom.”
Sir Henry Maine:
“Law is accepting norms of society and state has to implement those laws.”
Salmond:
“The body of principles recognized & applied by the state in the
application of justice.”
Article 13 (3) (a) of the Constitution
of India gives law an inclusive definition that ““law” includes any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the
force of law.”
02. Requirements of law
Some requirements of
laws are given below.
1.
Law should be uniform.
2.
It should be universal.
3.
Its jurisdiction should be compulsory.
4.
There should be a system of course.
03. Classification of law
03. Classification of law
Austin classifies
the types of laws as
1. Divine Law- Given by god to men
2. Human Law - Given by
men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory
Laws, Customs, Traditions etc.
There are different meanings
of the word law. Perhaps this is best conveyed by the view of Baron De
Montesque in his book, Spirit of the Law, where
he wrote:
“Laws in the wider possible
connotations are any necessary relation arising from a thing in nature. In this
sense, all beings have their laws; the Deity his laws, the material world it
laws, the intelligence superior to man its laws, the beasts their laws, man his
law…”
From the above it can be
seen that law is used in multipoe senses. Thus it is imperative for the
different types of laws to be considered. They are:
1.
Eternal Law
2.
Divine Law
3.
Natural Law
4.
Human or Positive Law
Eternal Law
Eternal
laws are laws that have applied since the beginning of time and would exist
till the end of time. These laws cannot be changed. A very good example of
eternal law is the law of gravity.
Divine Law
Divine
law is referred to as laws made by a deity to govern the affairs of man. A good
example is Islamic law as postulated in the Q’uran.
Natural Law
This
law is said to be law that is innate in all mankind and can be deduced through
the use of reason. For example, it is accepted in all cultures that murder is
wrong and should be punished.
Positive or Human Law
These
are laws made by man in order to guide the conduct of members of the society.
They are laws made by persons given the authority to do so either directly or
indirectly by the society. Legal positivism doesn’t concern itself with morals.
Once a law has been enacted by persons in authority, it is valid.
Public law
Public
law can be defined as that aspect of law that deals with the relationship between
the state, its citizens and other states. There are 3 main types of law that fall
into public law category: constitutional law, administrative law and
criminal law
Private law
Private law is that category
of the law that concerns itself with the relationship amongst private citizens.
Examples include the law of Torts, the Law of Contract, the Law of Trust, and
so on.
Constitutional law
Constitutional
Law controls how the government operates; resolves any disputes over
constitutional matters, for example, who is entitled to vote.
Administrative law
Administrative
law controls how Ministers of State and public bodies should operate and make
decisions.
Criminal law
Criminal law is
part of public law because a crime is regarded as an action against society and
the state as a whole.
Civil Law
Civil
law is the aspect of law that deals with the relationship between citizens and
provides means for remedies if the right of a citizen is breached. Examples of
civil law include the Law of Contract, the Law of Torts, Family Law etc.
Substantive law
A substantive law is a law that creates and controls the rights and
duties of parties. General examples include the laws regarding torts contracts
and real property
procedural law
A procedural law is a law that creates and controls the process of
enforcing the rights and duties under substantive law. General examples include
the rules of evidence, jurisdiction, and pleading and practice which are
referred to as either civil procedure or criminal procedure, depending on the
type of proceeding.
Municipal law
Municipal/Domestic
law is the aspect of law which emanates from and has effect on members of a
specific state. Indian Penal Code, 1860 is an example.
International law
International law is the law
between countries. It regulates the relationship between different independent
countries and is usually in the form of treaties, international customs etc. An
example of International law include the Universal Declaration of
Human Rights and the African Charter on Human
and People’s Rights.
Public international law
Public
international law concerns the structure, relationship and conduct of sovereign
states, analogous entities, and intergovernmental organizations.
Private international law
Public
international law, also known as "conflict of laws" concerns
which jurisdiction a legal dispute between private parties should be heard in
and which jurisdiction's law should be applied.
Written and
Unwritten Law
Written Law
A
law would not be regarded as written just because it is written down in a
document. Written laws are those laws that have been validly enacted by the
legislature of a country.
Unwritten Law
Unwritten laws are those
laws that are not enacted by the legislature. They include both customary and
case law. Customary law as part of its basic characteristic is generally
unwritten. Case law, though written down in a documentary format would be regarded
as unwritten law based on the fact that it is not enacted by the legislature.
Common Law and Equity
Common
law means the law developed by the old common law courts of the King’s Bench,
the Courts of Common Pleas and the Courts of Exchequer. The English common law
is regarded as such because it is law common to all parts of England. It grew
over time from the practices, customs and way of life of the people. It is
largely unwritten. Gradually the king appointed members of his court who were
to settle disputes in his stead. These judges had the authority of the king and
any disobedience to them was treated as disobedience to the king and punishment
was swift.
04. INTERNATIONAL LAW
01. Nature of International law
According to
Oppenheim, International Law is law in proper sense because:-
1. In practice
International Law is considered as law, therefore the states are bound to
follow them not only from moral point of view but from legal point of view
also.
2. When states
violate international law then they do deny the existence of international law
but they interpret them in such a way so that they can prove their conduct is
as per international law.
Starke has said, “In
various communities law is in existence without any sanction and legal
force or fear and such law has got the same acceptance as the law framed and
enacted by state Legislative Assemblies.”
With the result
of international treaties and conventions International Law is in existence.
United Nations Organization is based on the legality of International Law.
According to Prof.
Briely, “To deny the existence and legal character of International Law is
not only inconvenient in practice but it is also against legal thoughts and
principles.”
The states who
are maintaining the international relations not only accept International Law
as code of conduct but has also accepted its legal sanction and force.
Prof. Hart says that,
“There are many rules in practice which are honoured by states and they are
also bund by them, now the State Government accept the existence of
International Law.”
According to
Jus Cojens, “International Law may now properly be regarded as a
complete system.”
The following
grounds are supportive for accepting the International Law as law.
1.
Now so many disputes are settled not on the basis of
moral arguments but on the basis of International Treaties, precedents,
opinions of specialists and conventions.
2. States do not
deny the existence of International Law. On the contrary they interpret
International Law so to justify their conduct.
3. In some states
like USA and UK international Law is treated as part of their own law. A
leading case on the point is the, Paqueta v. Habanna 1900. Justice
Gray observed that the international law is a part of municipal law and must be
administered by courts of justice.”
4. As per statutes
of the International Court of Justice, the international court of Justice has
to decide disputes as are submitted to it in accordance with International Law.
5. International
conventions and conferences also treat international Law as Law in its true
sense.
6. The United
Nations is based on the true legality of International Law.
7. That according
to article 94 of UNO charter, the decisions of the International Court
of Justice are binding on all Parties (States).
8. Customary rules
of International Law are now being replaced by law making treaties and
conventions. The bulk of International Law comprises of rules laid down
by various law-making treaties such as, Geneva and Hague conventions.
In the case of West
Rand Central Gold Mining Company Ltd. v. Kind 1905, the court held the
International Law has considered it as a part of their law. From the above
analysis it is revealed that the International Law is law. The
International Law is law but the question arises as to what are the basis of
International Law.
02. Definitions of International Law
There
is no consensus among academics and other interested parties as to what
international law is. There are some who argue that there is no such thing as
international law as it is not imposed by a sovereign authority. Thus, a
definition of International Law is most essential for its proper understanding.
Classical Definitions
Some
classical definitions by prominent scholars are given below that don't meet
with modern trends of international law
Bentham:
International law is a collection of rules governing relations between states.
Oppenheim:
Law of nations or international law is the name for the body of customary and
conventional rules which are considered legally binding by the civilized states
in their intercourse with each other.
Modern Definitions
The
modern trend of international law does not confine itself to States. Therefore,
modern definitions for international law are relevant.
Prof.
J. G. Starke has stated that: “International law
consists of a system of laws, the majority of which applies to states but also
regulates activities of individuals and international organizations when it
becomes the concern for the international community.”
Schwarzen
Berger has stated that: “International law is body of
legal rules which apply between sovereign states and such entities which have
been granted international legal personality.”
03. Theories Supporting International Law
There are two
theories which support International Law as real law.
Naturalist Theory
The Jurists who
adhere to naturalist theory are of the view that International Law is a part of
the Law of the Nature. Starke has written, “States submitted to
International Law because their relations were regulated by higher law, the law
of Nature of which International Law was but a part.”
Vattel
Furfendorf, Christain, Thamasius, Vitona are the main supporters of this theory.
It was viewed that natural law is uncertain and doubtful but it is accepted
that Natural Law has greatly influenced the growth and has given the birth to
International Law and its development. Most of its laws are framed from
Natural Law.
Positivist Theory
This theory is
based on Positivism i.e. law as it is. The positivists base their views on the
actual practice of the states. In their view customs and treaties are the
main sources of International Law. According to German economist, Heagal,
“International Law is the natural consent of states. Without the consent
of states, no law can bind the states. This consent may be express or
implied.” Starke points out, “ International Law can in
logic be reduced to a system of rules depending for their validity only on the
fact that state have consented to them.” Brierly maintains
that, “The doctrine of positivism teaches that International Law is the sum of
rules by which states have consented to be bound.” Bynkeshock says,
“The basis of International Law is the natural consent of the states. Without
the consent of states no law can bind the states.”
The critics of
the above views say that consent is not always necessary for all laws.
There are some laws which are binding on states irrespective of their consent
e.g. Vienna Convention on the Law of Treaties. Article 36 of the Treaty
says that the provisions of the Treaty may be binding on third parties even if
they have not consented to it.
Gossil Hurst says, “That
International Law is in fact binding on states, because they are states.” This
is very much correct because every state in the world wants peace, law and
order and that is possible only through existence of International Law.
Therefore it is in natural interest of States to accept the existence of
International Law.
04. Significance of International Law
International
law is the vital mechanism without which an interdependent world cannot
function properly and within the bounds of law. It does not only control the
states by overseeing their conduct in relation with other states, like the law
prohibiting the use of armed force to settle dispute, but also maintains laws
regarding individuals such as human rights.
International
law is intrinsically bound up with diplomacy, politics and conduct of foreign
affairs; and not based on an adversarial system of law, meaning thereby that
many of the rules have been evolved from the practice of the states and do not
bind the states in any course, which tends to make international law more
flexible. Also, international law leaves a state with so many options rather
than with merely one course of action, which serves as an advantage for a
system so bound up with politics and diplomacy.
05. Global Scope of International Law
According
to Bentham's classic definition, international law is a collection of rules
governing relations between states. It is a mark of how far international law
has evolved that this original definition omits individuals and international
organizations—two of the most dynamic and vital elements of modern
international law. It is no longer accurate to view international law as simply
a collection of rules; rather, it is a rapidly developing complex of rules and
influential principles, practices, and assertions coupled with increasingly
sophisticated structures and processes. In its broadest sense, international
law provides normative guidelines as well as methods, mechanisms, and a common
conceptual language to international actors.
Although
international law is a legal order and not an ethical one, it has been
influenced significantly by ethical principles and concerns, particularly in
the sphere of human rights.
International law covers a wide range of
laws which include the following:
• Refugee laws
• Narcotics/Drugs treaties
• Human trafficking
• Obscene publication
• World health treaties
• International trade development
• Agreement relating to independent guarantee and letter of credit.
• Protocol on road signs and signals 1947
• Contract of carriage of goods by roads.
• Refugee laws
• Narcotics/Drugs treaties
• Human trafficking
• Obscene publication
• World health treaties
• International trade development
• Agreement relating to independent guarantee and letter of credit.
• Protocol on road signs and signals 1947
• Contract of carriage of goods by roads.
04. PUBLIC INTERNATIONAL LAW
01. Disciplines of International Law
The term
"international law" can refer to three distinct legal disciplines
namely:
01. Public
International Law which governs the relationship between
provinces and international entities. It includes these legal fields: treaty
law, law of sea, international criminal law, the laws of war or international
humanitarian law and international human rights law.
02. Private
International Law or conflict of laws, which addresses the
questions of (1) which jurisdiction may hear a case, and (2) the law concerning
which jurisdiction applies to the issues in the case.
03. Supranational Law
or the law of supranational organizations, which concerns
regional agreements where the laws of nation states may be held inapplicable
when conflicting with a supranational legal system when that nation has a
treaty obligation to a supranational collective.
The two traditional
branches of the field are:
1. Jus
Gentium — law of nations
2. Jus
Inter Gentes — agreements between nations
05. SOURCES OF PUBLIC INTERNATIONAL LAW
Views on Sources of
International Law are manifold. Some of them may be viewed first.
Lawrence:
According to Lawrence, if we take the source of law means its beginning as law
having with all the authority required to give it binding force, then in
respect of International Law there is one source of law and that is consent of
Nations. This consent may be either tacit (custom) or express (treaties).
Oppenheim: Treaties
and Customs are regarded as the exclusive sources of International Law. Therefore
the Sources of International law are two-fold, namely-
1. Express consent
which is given when States conclude a treaty stipulating certain rules for the
future International conduct of the parties.
2. Tacit consent
that is implied consent or consent by conduct.
Brierly:
The main Sources of International law are custom and reason.
Westlake:
Custom and reason are two sources of International law.
Statute of the
International Court of Justice Article 38(1)
Sources of
International Law are identified in Article 38 (1) of the 1945 Statute of the
International Court of Justice (established by the Charter of the United
Nations) defines the Sources of International law as under:
(a) International
conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
(b) International
custom, as evidence of a general practice accepted as law;
(c) The general
principles of law recognized by civilized nations;
(d) Subject to the
provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Article 38 (2) Provides
that the Article 38 (1) shall not prejudice the power of the Court to decide a
case ex aequo et bono (means in justice and good faith) if the parties
agree thereto.
Therefore it is
inevitable to classify the above sources of international law as well as other
types of the same.
01. International Conventions or treaties
It is the first and important
Source of International law. There is no Legislative organ in the field
of International Law, comparable to legislatures within the State, the
enactments of which could bind all the States. The Contracting Parties may,
however, establish an international organization by means of the treaty with
authority to bind them by its resolutions or may even lay down rules for their
mutual conduct. In this sense, multilateral treaties are a feeble approach to
International Character.
Treaties can be divided
into
1) Law Making Treaties
and
2) Treaty Contracts
Law making Treaty
Law making treaties are
those treaties which are entered into by a large number of States. These are
the direct source of International Law. These treaties are binding. Law making
treaties may be divided into
i) Treaty giving the
rule of Universal International Law: These treaties are
signed by a majority of the State. For Example United Nation Charter.
ii) Treaty giving
general principles: These treaties are entered into and
signed by a large number of countries giving thereby general principles of
International Like. Geneva Convention on Law of sea and Vienna Convention on
Diplomatic Relations, 1961 are examples of such a treaty.
Treaty Contracts
These are the treaties
which are entered into by two or more States. The provisions of such treaties
are binding only on the parties to the treaty. Such type of treaties are also
the source of International Law because they help in the development of
customary rules of International Law.
02. Custom and Usage
It is the older and
original source of law. It is as such second important source of International
Law to the extent to which it is evidence of a general practice accepted as
law. Even in the interpretation of treaties reference is frequently made to
customs in case of doubt.
Custom in its legal
sense involves something more than habit or usage. It is a usage left by those
who follow it to be an obligatory one. Custom is that line of conduct which the
society has consented to regard as obligatory. The territorial rights and
privileges afforded to foreign diplomats by all civilized States in their
territory furnish an example of the force of custom as a basis for
International Law.
The terms
"custom" and "usage" are often used interchangeably.
According to Starke, there is a clear technical distinction between the two.
Usage represents the twilight stage of custom. Custom begins where usage ends.
Usage is an international habit of action that has not yet received full legal
attestation. Usages may be conflicting, custom must be unified and
self-consistent. A custom, in the intendment of law, is such a usage as hath
obtained the force of law (Viner's abridgement). Oppenheim also distinguishes
between custom and usage in the same terms. He says, "International
jurists speak of a custom when a clear and continuous habit of doing
certain actions has grown up under the aegis of the conviction that these
actions are, according to International Law; obligatory or right. On the other
hand, they speak of a usage when a habit of doing certain actions has grown up
without there being the conviction that these actions are, according to
International Law, obligatory or right." Thus, the term 'custom' is in the
language of international jurisprudence, a narrower conception than the term
'usage' as a given course of conduct may be usual without being customary.
03. The General Principles of Law
The Statute of the
International Court of Justice authorizes the Court to apply the general
principles of law recognized by civilized nations in addition to international
conventions and custom, which are the two main sources of International Law. It
makes national legal systems as a source of law for the creation of
International Law. Sir Hersh Lauterpacht has pointed out that general
principles of law may be a necessary and inevitable way of filling a lacuna in
the interpretation of a specific question. The phrase "the general
principles of law recognised by civilized nations" also embraces the
principles of private law administered in national courts and as applicable to
international relations.
The incorporation of general
principles of law in the Statute of the International Court of Justice discards
the positivist view which regards treaties and custom as the only sources of
International Law upon which international courts can base their decisions. Professor
Gutteridge is of the view that the object of the invocation of the 'general
principles' is with a view to providing the judge, on the one hand, with a
guide to the exercise of his 'choice of a new principle' and, on the other
hand, to prevent him from 'blindly following the teaching' of the jurists with
which he is most familiar without first carefully weighing the merits and
considering whether a principle of private law does in fact satisfy the demands
of justice.
04. Judicial Decisions of Tribunal and Prize Courts
Article 38 of the
Statute of the International Court of Justice refers to judicial decisions as a
subsidiary means for the determination of rules of law, and those words
correctly state their function. Greater weight is attached to the judgment of
mixed tribunals appointed by the joint consent of the two contending States
than to Admiralty Courts appointed by one State alone.
Article 59 of the
Statute of the International Court of Justice expressly provides that the
decision of the Court has no binding force except between the parties and in
respect of that particular case. Under the provisions of this article the Court
is specifically required not to apply precedent or the doctrine of stare
decisis in its decisions. In view, however, of the wide representation of
the world's main legal systems first on the Permanent Court of International
Justice and then on the International Court of Justice and of the high
reputation and impartiality of the judges of the Courts, their decisions have
frequently been referred to as manifestation of the intrinsic merits of
judicial precedent.
05. Decisions of Municipal Courts
As a source of law the
decisions of municipal courts are not accorded the same sanctity as is attached
to those of international courts and tribunals and they have seldom been cited
by the two World Courts. Such courts will normally not apply International Law
which runs counter to the explicit provisions of the written constitution. In
many States the courts apply local legislation or domestic law in priority to
International Law. Schwarzenberger observes that it is true to say that
only on the lowest level are judgments of municipal courts merely evidence of
national attitudes to International Law.
It was observed in the
case of Thirty Hogsheads v. Boyle by Marshal, C.J., that
"the decisions of the courts of every country so far as they are founded
upon a law common to every country, will be received, not as authority but with
respect."
06. Prize Courts
Prize Courts are
tribunals set up by belligerent States for the purpose of deciding upon the
validity of the captures made by their cruisers. They administer International
Law and give effect to it as the law not laid down by any particular State but
which originates in the practice and usage long observed by civilized nations
in their relations towards each other, or in express international agreements.
They are no doubt bound by Acts of Parliament, but if they are inconsistent
with the Law of Nations, the Prize Courts in giving effect to such provisions
would no longer be administering International Law.
07. Text-writers, Works of Jurists and Commentators
Article 38 of the
Statute of the International Court of Justice authorizes the Court to apply the
teachings of the most highly qualified publicists of the various nations as a
subsidiary means for the determination of rules of law. In the first place, the
work of writers plays "a part in proportion to its intrinsic scientific
value, its impartiality and its determination to scrutinize critically the
practice of States by reference to legal principle." In the second place,
.writings of authors are not an independent source of law, though they may lead
in course of time to form International Law by providing useful evidence of
what the law is.
Their Lordships of the
Judicial Committee also in the case of Re Piracy Jure Gentium laid
down that opinions of text-books writers were last but not the least among the
sources of International Law.
The writings of Ayala,
Gentilis, Grotius, Vattel, Kent, Zouche, etc. have tended to transform the
transitory state of usage into custom, and represented a strong element to consolidate
the customary law.
Lawrence
is of the view that a writer on International Law in a sense himself legislates
for he creates the opinion that is really supreme.
08. International Comity
Oppenheim observes that
a factor of a special kind which also influences the growth of International
Law is the so-called binding rules and such rules as have the character of
usages, but also rules of politeness, convenience, and goodwill. Such rules of
international conduct are not rules of law, but of Comity. The Comity of
Nations is not a source of International Law, but many a former rule of
international comity is nowadays a rule of International Law.
Comity may be defined
in the words of Andrews, J., in The Russian Socialist Federated
Soviet Republic v. Cibrario, "as that reciprocal courtesy which
one member of the family of nations owes to the others. It presupposes
friendship. It assumes the prevalence of equity and justice. Experience points
to the expediency of recognizing the legislative, executive and judicial acts
of other powers. We do justice that justice may be done in return."
09. International State papers other than Treaties
Occasionally an
international controversy clears up a disputed legal point or advances the
application of principles that have before received little more than an otiose assent.
The archives of the foreign affairs department of every country contain a mass
of valuable expert opinion which, if published, would add considerably to the
literature on International Law.
10. State Instructions for the guidance of their own Officers
The acts or
declarations by statesmen, opinions of legal advisers to State Governments or
official jurists given in relation to particular matters referred to them by
their own Governments, or other State papers of international import all
furnish evidence of usages which grow into international customs in course of
time as they are adopted by other States.
06. INTERNATIONAL CUSTOM
Customary international law is an aspect of international law involving the principle of custom. Along with general
principles of law and treaties, custom is considered by the International
Court of Justice, jurists, the United
Nations, and its member
states to be among the
primary sources of
international law. Many
governments accept in principle the existence of customary international law,
although there are differing opinions as to what rules are contained in it.
01. Recognition of Customary International Law
The International Court of Justice Statute defines
customary international law in Article 38(1)(b) as "a general practice
accepted as law." This is generally determined through two factors: the
general practice of states and what states have accepted as law.[i]
There are several different kinds of customary
international laws recognized by states. Some customary international laws rise
to the level of jus cogens through acceptance by the international
community as non-derogable rights, while other customary international law may
simply be followed by a small group of states. States are typically bound by
customary international law regardless of whether the states have codified
these laws domestically or through treaties.
02. Jus cogens
A peremptory norm (also called jus cogens,
originated Latin meaning "compelling law") is a
fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. These norms rooted
from Natural Law principles,[ii]
and any laws conflicting with it should be considered null and void.[iii]
Examples include various international
crimes; a state violates
customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity.[iv]
Jus cogens and customary international law are not
interchangeable. All jus cogens are customary international law through
their adoption by states, but not all customary international laws rise to the
level of peremptory norms. States can deviate from customary international law
by enacting treaties and conflicting laws, but jus cogens are
non-derogable.
Opinio juris is the
second element broadly considered necessary for the formation of customary
international law with state practice, opinio juris which constitute
‘subjective element'(verbal act) while state practice is the ‘objective
element'(behavioural act) and this was well articulated by Kammerhofer
in his article that verbal act can form a practice with their content forming
‘expression of the subjective element', a statement of an act and that
‘subjective element may be dominant factor in the behavioural act itself'. Dixion
however holds that ‘state practice must be accompanied by a belief that the
practice is obligatory, the belief in the obligatory nature of the practice is
called the opinio juris' but ICJ on several occasion refer to opinio
juris as having equal footing with ‘state practice' in Continental
shelf case(Libyan Arab Jamahinya V Malta) and legality of Nuclear
Weapons Advisory Opinion .Also in Lotus case, opinio juris
was seen as essential element of customary international law and this was
affirmed in North Sea Continental Shelf Cases but the judges
however held that opinio juris cannot be implied from repeated
activities, this made the proof of opinio juris difficult but the
dissenting judges in the case realized the difficulty when they held otherwise
in their minority judgement, its proof however depends on the subject matter,
thus attainment of rule to jus cogen status required strong evidence of opinio
juris apart from the fact of consistence state practice. In Nicaragua case
where state practice and opinio juris was alluded to arrive at a
conclusion that use of force had attained the status of customary rule of jus
cogen before the advent of UN charter of 1945. The time element and
duration of customary law varies.
03. Codification of International Customary Law
Some international customary laws have been
codified through treaties and domestic laws, while others are recognized only as customary law.
The laws of war, also known as jus in bello, were long a
matter of customary law before they were codified in the Hague
Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these
conventions do not purport to govern all legal matters that may arise during
war. Instead, Article 1(2) of Additional Protocol
I dictates that customary
international law governs legal matters concerning armed conflict not covered
by other agreements.[v]
04. Silence as consent
Generally, sovereign nations must consent in order
to be bound by a particular treaty or legal norm. However, international
customary laws are norms that have become pervasive enough internationally that
countries need not consent in order to be bound. In these cases, all that is
needed is that the state has not objected to the law. However, states that object to customary international law may not be bound
by them unless these laws are deemed to be jus
cogens.[vi]
However, in a dispute with any nation that has not affirmed the "silence
implies consent" principle, any invocation of the "silence implies
consent" principle involves an appeal to custom, such that if that nation
does not espouse the broader premise of acknowledging the existence of
customary international law, such an appeal will depend on circular reasoning ("customary international law is binding
because silence implies consent, and silence implies consent because the fact
that silence implies consent is one aspect of customary international
law").
05. Consent and International Customary Law
It is commonly said that the international
community is ‘anarchical’, in that there is no layer of higher government with
absolute power to treat states like citizens. This is in a way unsurprising,
since most states could (if pressed) rely solely on themselves for survival.
States are thus in a position, unlike individual humans, to refuse the benefits
and reciprocal responsibilities of participating in a community under law.
In recognition of this reality, it has long been a
tenet of international law that a state must expressly consent to a rule (by,
for example, signing a treaty) before it can be legally bound by the rule.
Customary international law not only upsets this idea of consent, it does it by
stealth.[vii]
06. The International Court of Justice
The Statute
of the International Court of Justice acknowledges the existence of customary international law in Article
38(1)(b), incorporated into the United Nations Charter by Article 92: "The Court, whose function is
to decide in accordance with international law such disputes as are submitted
to it, shall apply...international custom, as evidence of a general practice
accepted as law."
Customary international law "... consists of
rules of law derived from the consistent conduct of States acting out of the belief that the law
required them to act that way.[viii]"
It follows that customary international law can be discerned by a
"widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of obligation (opinio
juris); Acts must be
taken by a significant number of States and not be rejected by a significant
number of States.[ix]"
A marker of customary international law is consensus among states exhibited both by widespread
conduct and a discernible sense of obligation.
The two essential elements of customary
international law are state practice and opinio juris, as confirmed by the International Court
of Justice in the Legality of the Threat or Use of Nuclear Weapons.[x]
In relation to the psychological element that is opinio
juris, the International Court of Justice further held in North Sea
Continental Shelf case, that "not only must the acts concerned
amount to a settled practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it... The States
concerned must therefore feel that they are conforming to what amounts to a
legal obligation.[xi]"
The Court emphasized the need to prove a "sense of legal duty" as
distinct from "acts motivated by considerations of courtesy, convenience
or tradition.[xii]"
This was subsequently confirmed in Nicaragua v. United States of America.[xiii]
07. Bilateral versus multilateral customary international law
The recognition of different customary laws can
range from simple bilateral recognition of customary laws to worldwide multilateral recognition. Regional customs can become
customary international law in their respective regions, but do not become
customary international law for nations outside the region. The existence of
bilateral customary law was recognized by the International Court of Justice in
the Right of Passage Over Indian Territory case between Portugal and
India, in which the court found "no reason why long continued
practice between the two states accepted by them as regulating their relations
should not form the basis of mutual rights and obligations between the two
states.[xiv]"
08. Other customary international laws
Other examples accepted or claimed as customary
international law include the principle of non-refoulement and immunity of visiting foreign heads of state. United Nations Security Council in 1993
adopted Geneva conventions as customary international law because since the
time being it has transformed itself into customary international law. If any
treaty or law has been called as customary international law then parties which
have not ratified said treaty will be bound to observe its provisions in good
faith.[xv]
09. International Custom
Article 38(1)(b) of the ICJ
Statute refers to "international custom" as a source of international
law, specifically emphasizing the two requirements of state practice plus
acceptance of the practice as obligatory or opinio juries save
necessitatis (usually abbreviated as opinion juries).
Derived from the consistent
practice of (originally) Western states accompanied by opinion juries (the
conviction of States that the consistent practice is required by a legal
obligation), customary international law is differentiated
from acts of comity
(mutual recognition of government acts) by the presence of opinion juries
(although in some instances, acts of comity have developed into customary
international law, i.e. diplomatic immunity). Treaties have gradually
displaced much customary international law. This development is similar to the
replacement of customary or common law by codified law in municipal legal
settings, but customary international law continues to play a significant role
in international law.
The important elements of
international custom are state practice, the tenacity and acceptance of such
practice as law, also known as ‘opinio juris.' Customary law may not be as
‘visible' as treaty.‘ it represents the essential basis upon which modern human
rights is grounded'. Custom is regarded as a form of ‘tacit agreement', the
behaviours of states to each other in an acceptable way leads to tacit accent
to the acceptable behaviour. The problem of this view is that if agreement
kicks it on, absence of agreement can kick it off. customary law emanates as
law from practice of states .Dixon refers to it as the ‘foundation stones of the
modern law of nations' and this was backed up in the Gulf of Maine case
that custom is the ideal right size for the general principles and always on
ground to fill the vacuum any time obligation and law of treaties are not
gaining global acceptance. Customary law can change on the principle of
‘apprehension' and ‘acquiescence' but that does not mean customary law is not a
strong rule of law, the process of customary law continuously is a good omen to
international law because it can meet up with the timely needs of international
law as the world and law develop, though, it may have its own disadvantages of
more relaxed and slow formation process, it lacks certainty and visibility
unlike treaty. It has advantage as regards to its variety of wide scopes in similarities
with state activities. Treaty has advantage where custom has disadvantage, they
are like twin pillars ready to work together in other to strengthen the sources
of international law. Hugh said, ‘the way things have always been done becomes
the way things must be done rules, international law does not deviate from the
pattern discernible in municipal legal systems'.
10. State Practice
State practice is
defined by Akehurst as "any act or statement by a State from which
views about customary law can be inferred; it includes physical acts, claims,
declarations in abstracto (such as General Assembly resolutions),
national laws, national judgments and omissions.[xvi]"
The State practice is not
confined only to the external conduct of States with each other, such as
bilateral or multilateral treaties, diplomatic correspondence, but also
includes certain internal matters of States such as their domestic legislation,
judicial decisions, policy statements, internal government memoranda, and
ministerial statements in Parliaments and elsewhere.[xvii]
The International Law Commission included the following in a non-exhaustive
list of the forms that State practice may take: treaties, decisions of
international and national Courts, national legislation, diplomatic
correspondence, opinions of national legal advisers and the practice of
international organizations.[xviii]
According to Brownlie, evidence of custom may be found from
"diplomatic correspondence, policy statements, press releases, the
opinions of official legal advisers, officials manuals on legal questions, e.g.
manuals of military law, executive decisions and practices, orders to naval
forces etc., comments by governments on drafts produced by the
International Law Commission, State legislation, international and national
judicial decisions, recitals in treaties and other international instruments, a
pattern of treaties in the same form, the practice of international organs and
resolutions relating to legal questions in the United Nations General Assembly.[xix]
Sometimes, United Nations General Assembly resolutions and other non-binding
statements and resolutions by multilateral bodies are also being viewed as
evidence of customary international law.[xx]
State practice as one of the
elements of customary law, it is a continuous and constant state practice of
international acts over a period of time, Governmental actions, rule makings
and execution of policies, governmental declaration and pronouncement,
administrative procedures and policies within states constitute good links and
sources of state practice. In Assylum case (Colombia v. Peru), to
form customary law, it must be ‘in accordance with a constant and uniform usage
practiced by states in question'. This was stated in Fisheries
case(United Kingdom v. Norway).The ‘uniformity' and ‘consistency' test
is ‘general practice' and not a ‘universal practice' and ‘practice of most
influential and powerful states would carry the greatest weight', deducing from
the above, it doesn't mean all states participation in the practice. ‘Once a
practice is established as forming part of customary International law', all
states are bound including states and the new states that failed to contribute
to the practice initially. Nevertheless, we cannot rule out the ‘opt out'
possibility for the ‘persistent objectors' at the formative stage of the law,
as Thirlway put it, ‘an attractive option' which will disallow the
imposition of specific rule by the majority over the minority., it has been
deeply criticized in international law, as a result of this, the practice is as
stated earlier, states are bound as a general rule either as ‘objectors' or
not.
Consistency of state
practice as another element is significant to the alteration of an existing
custom. In Lotus case, the court said customs must be ‘constant
and uniform'. It must not be ‘totally uniform and constant'; it must at least
be significantly constant state practice to become customary international law.
Also, it is well stated in Anglo-Norwegian Fisheries case that
the consistency required may vary in degree based on circumstance.
Generality of Practice as
another element in customary law is about the knowledge of the Custom, to
significant number of states. It is a general adoption of practice by state, in
North Sea Continental Shelf Cases, it may be difficult to
determine the number of state to participate in international law before a
general practice can become law because it is not about majority of votes cast,
the degree depends on the various subject matters.
When examining state
practice to determine relevant rules of international law, a distinction should
be drawn as to the weight that should be attributed to what states do, rather
than what they say represents the law. This may involve rejecting what states
say as practice and relegating it to the status of evidence of opinion
juries.[xxi] A
more moderate version would evaluate what a state says by reference to the
occasion on which the statement was made.[xxii]
Relatively powerful countries alone shall get regular opportunities of
contributing by deed to the practice of international law. The principal means
of contribution to state practice for the majority of states will be at
meetings of international organizations, particularly the UN General Assembly,
by voting and otherwise expressing their view on matters under consideration. There
are circumstances in which what states say may be the only evidence of their
view as to what conduct is required in a particular situation.[xxiii]
The notion of practice
establishing a customary rule implies that the practice is followed regularly,
or that such state practice must be "common, consistent and concordant".[xxiv]
Given the size of the international community, the practice does not have to
encompass all states or be completely uniform. There has to be a sufficient
degree of participation, especially on the part of states whose interests are
likely to be most affected[xxv],
and an absence of substantial dissent.[xxvi]
There have been a number of occasions on which the ICJ has rejected claims that
a customary rule existed because of a lack of consistency in the practice
brought to its attention.[xxvii]
Within the context of a
specific dispute, however, it is not necessary to establish the generality of
practice. A rule may apply if a state has accepted the rule as applicable to it
individually, or because the two states belong to a group of states between
which the rule applies.[xxviii]
A dissenting state is
entitled to deny the opposability of a rule in question if it can demonstrate
its persistent objection
to that rule,[xxix]
either as a member of a regional group[xxx]
or by virtue of its membership of the international community.[xxxi]
It is not easy for a single state to maintain its dissent. Also, rules of the jus
cogens have a universal character and apply to all states, irrespective of
their wishes.[xxxii]
Demand for rules that are
responsive to increasingly rapid changes has led to the suggestion that there
can be, in appropriate circumstances, such a concept as "instant
custom". Even within traditional doctrine, the ICJ has recognized that
passage of a short period of time is not necessarily a bar to the formation of
a new rule.[xxxiii]
Because of this, the question is sometimes raised as to whether the word
"custom" is suitable to a process that could occur with great
rapidity.
11. Practice by International Organizations
It may be argued that the
practice of international organizations, most notably that of the United Nations,
as it appears in the resolutions of the Security Council and the General Assembly, are an
additional source of international law, even though it is not mentioned as such
in Article 38(1) of the 1946 Statute of the International Court of Justice.
Article 38(1) is closely based on the corresponding provision of the 1920
Statute of the Permanent Court of International
Justice, thus predating the role that international organizations
have come to play in the international plane. That is, the provision of Article
38(1) may be regarded as 'dated, and this can most vividly be seen in
the mention made of 'civilized nations', a mentioning that appears all the more
quaint after the decolonization process that took place in the early 1960s and
the participation of nearly all nations of the world in the United Nations.
12. Treaties as custom
Some treaties are the result
of codifying existing customary law, such as laws governing the global commons,
and jus ad bellum.
While the purpose is to establish a code of general application, its
effectiveness depends upon the number of states that ratify or accede to the
particular convention. Relatively few such instruments have a sufficient number
of parties to be regarded as international law in their own right. The most
obvious example is the 1949 Geneva Conventions for the Protection of War Victims.
Most multi-lateral treaties
fall short of achieving such a near universal degree of formal acceptance and
are dependent upon their provisions being regarded as representing customary
international law and, by this indirect route, as binding upon non-parties.
This outcome is possible in a number of ways:
1. When the treaty rule
reproduces an existing rule of customary law, the rule will be clarified in
terms of the treaty provision. A notable example is the Vienna Convention on the Law of
Treaties 1969, which was considered by the ICJ to be law even before
it had been brought into force.[xxxiv]
2. When a customary rule is
in the process of development, its incorporation in a multilateral treaty may
have the effect of consolidating or crystallizing the law in the form of that
rule. It is not always easy to identify when this occurs. Where the practice is
less developed, the treaty provision may not be enough to crystallize the rule
as part of customary international law.[xxxv]
3. Even if the rule is new,
the drafting of the treaty provision may be the impetus for its adoption in the
practice of states, and it is the subsequent acceptance of the rule by states
that renders it effective as part of customary law.[xxxvi]
If a broad definition is adopted of state practice, the making of a treaty
would fall within the definition. Alternatively, it is possible to regard the
treaty as the final act of state practice required to establish the rule in
question, or as the necessary articulation of the rule to give it the opinion
juries of customary international law.
4. Convention-based
"instant custom" has been identified by the ICJ on several occasions
as representing customary law without explanation of whether the provision in
question was supported by state practice. This has happened with respect to a
number of provisions of the Vienna Convention on the Law of Treaties 1969. If
"instant custom" is valid as law, it could deny to third parties the
normal consequences of non-accession to the custom.
The comparison of treaty
with customary law is important because they are the two major sources of
international law, the Nicaragua case affirmed the complementary
relationship between treaty and international custom. It also shows that treaty
may codify International custom and treaty may also revert to international
custom if the treaty is abandoned by states. They are interrelated though there
may be conflict where the interrelated part tends toward different obligations;
ICJ may resolve the conflict depending on the stronger obligation. In the Nicaragua
case, customary law will not cease to bind because it has been codified
by treaty. Parties to treaty will be bound by it and the non-parties will be
bound by custom. If treaty falls away, customary law will take over but where
there is conflict, if treaty is latter than custom, it will prevail, this is
based on common principle of law and more so that treaty is a deliberate ‘act
of law creation' where custom is latter than treaty, the treaty will still
prevail on parties.
There is no doubt about
the fact that treaty stipulations override rules of international customary law
which are incompatible with them. This proposition received approbation in the S.S.
Wimbledon Case (1923) where the Permanent Court of International
Justice held that treaty law takes priority over international customary law.)
13. Elements of International Customary Law
There should be
following elements in a practice, before it is recognized as an international
customary law:
01. Antiquity
Ordinarily, a practice
which has been followed consistently for quite long may become a custom. It is,
however, not a general rule. A practice which has been followed by State in a
constant and uniform manner as an obligation may become customary law in a short
span of time. For example, rules relating to airspace and the continental shelf
have emerged from fairly quick maturing of practice.[xxxvii] Thus the element of
time is important but not indispensable in the formation of a custom.
Ordinarily, a practice takes lot of time to become a custom as it is relatively
a slow process, It is difficult to find opino juris immediately
as it takes time to develop.
However, sometimes
State practices become customary law in comparative short span of time. There
are examples of "instant" customs. For example, the President
Truman’s Proclamation of 1945 by which he claimed that continental shelves
adjacent to United States coastline up to a distance of 200 nautical miles and
its resources would vest in the United States. Within a very short span of
time, many other States made similar claims. Soon, a new customary law was in
place. The Truman's proclamation also found a place in the U.N. Convention on
Law of the Sea in 1982.[xxxviii]
In North Sea
Continental Shelf cases,[xxxix] denying the customary
nature of Article 6 of the Geneva Convention on Continental Shelf of 1958,
the ICJ observed:
“Although the passage
of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be
that within the period in question, short though it might be, State practice,
including that of States whose interests are specifically affected, should have
been both extensive and virtually uniform in the sense of the provision
invoked; and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.[xl]”
It is difficult to
ascertain the time frame in which a practice ripens into a customary law, but
the longer the period of time, the better the chances of establishing the
legitimacy of a custom.
02. Uniformity of State Practice
The practice should be
followed in a uniform manner. If the State practice is not followed uniformly
and becomes divergent, then such a practice may not become customary
international law. However, complete uniformity is not required. A practice, if
it is substantially uniform, may become a custom.
03. Consistent State Practice
The practice should
have been followed by States consistently. If the practice is such which is
discontinued or followed intermittently, then it may not be called as a custom.
04. Opinio Juris Sive Necessitatis
As already stated, the
State practices should be consistent and should not be conflicting. The States
should follow a particular practice not as a matter of convenience as an
obligation. This is called as opinio juris sive necessitatis. In
other words, it refers to sense of legal obligation on the part of States.
The practice should be
followed by States as an obligation. If the States do not feel that they are
required to follow a particular practice, and adopt it only when it suits their
interest, then such practice cannot be recognized as an international custom.
In order to become
customary international law, the practice should be such which is followed by a
significant number of States without a major diversion. This is also evident
from Article 38(1) of the Statute of International Court of Justice, which
provides that "international custom, as evidence of a general practice
accepted as law" is to be applied by the ICJ in deciding a case. Thus, the
practice should be a general practice and not the one which is followed only by
few States. At the same time, it is also not necessary that a practice should
be observed by each and every Slate. It is however important that the practice
should not be modified lime and again in a major way. Thus a practice should be
followed by States repeatedly in a uniform manner under an obligation and over
a period of time.
14. Difference between 'Custom' and 'Usage'
The terms
"custom" and "usage" are often used interchangeably.
According to Starke, there is a clear technical distinction between the
two. Usage represents the twilight stage of custom. Custom begins where usage
ends. Usage is an international habit of action that has not yet received full
legal attestation. Usages may be conflicting, custom must be unified and
self-consistent. A custom, in the intendment of law, is such a usage as hath
obtained the force of law (Viner's abridgement). Oppenheim also
distinguishes between custom and usage in the same terms. He says,
"International jurists speak of a custom when a clear and
continuous habit of doing certain actions has grown up under the aegis of the
conviction that these actions are, according to International Law; obligatory
or right. On the other hand, they speak of a usage when a habit of doing
certain actions has grown up without there being the conviction that these
actions are, according to International Law, obligatory or right." Thus,
the term 'custom' is in the language of international jurisprudence, a narrower
conception than the term 'usage' as a given course of conduct may be usual
without being customary.
In the Columbian
Peruvian Asylum Case, the International Court of Justice observed that
the party relying on custom must prove that the custom was established in such
a manner that it had become binding on the other party, that the rule invoked
was in accordance with a constant and uniform usage practised by the State in
question, and that this usage was the expression of a right apertaining to the
State granting asylum and a duty incumbent on the territorial State.
In the Right of
Passage over Indian Territory (Merits), the International Court
of Justice observed that where the Court finds a practice clearly established
between two States which was accepted by the parties as governing the relations
between them, the Court must attribute decisive effect to that practice for the
purpose of determining their specific rights and obligations. Such a particular
practice must prevail over any general rules.
The terms 'custom' and
'usage' are not interchangeable. They carry different meanings in law. 'Usage'
means a habit of doing certain actions. Usages are not obligatory in character.
They may be conflicting. On the other hand, a 'custom' is a clear and
continuous habit of doing certain actions. They are not conflicting. They are obligatory
and binding in nature. Thus, custom in international law is different from mere
usage, however well established, and it is also distinct from the rules which,
however well observed, are recognized by States as being demanded by courtesy
rather than by law.[xli]
15. Leading Cases
After discussing the
essential elements of customary international law in detail, it will be
appropriate to discuss the case laws. In Anglo-Norwegian Fisheries case,[xlii] the coastline of Norway
was deeply indented by fjords and sunds (sound) and was fronted
by a fringe of islands and rocks (the skjaergaard) which was close to
mainland. Norway measured its territorial sea by drawing a straight baseline
linking the outermost points of land along it. The United Kingdom challenged
the legality of Norway's straight baseline system as Norway enclosed waters
within its territorial sea that would have been high seas.
The Court concluded
that the method of straight lines, established in the Norwegian system, was
imposed by the peculiar geography of the Norwegian coast; that even before the
dispute arose, this method had been consolidated by a constant and sufficiently
long practice, in the face of which the attitude of Governments bears witness
to the facts that they did not consider it to be contrary to international law.
The Court considered that historical data produced lend some weight to the idea
of the survival of traditional rights reserved to the inhabitants of the
Kingdom over fishing grounds included in the 1935 delimitation. Such rights,
founded on the vital needs of the population and attested by ancient and
peaceful uses, may legitimately be taken into account in drawing a line which,
moreover, appears to the Court to have been kept within the bounds of what is
moderate and reasonable.
The Court finally held
that the method employed by Norway to delimit its territorial waters was not
contrary to international law. The principle of straight baseline was
subsequently adopted in Geneva Convention on Territorial Waters and Contiguous
Zone of 1958 and U.N. Convention on Law of the Sea, 1982.
In North Sea
Continental Shelf cases,[xliii] the dispute was
related to the delimitation of the continental shelf between the Federal
Republic of Germany and Denmark on the one hand and between the Federal
Republic of Germany and Netherlands on the other. Both Denmark and Netherlands
argued that delimitation of continental shelf should be done on the basis of
"equidistance-special circumstances principle" as laid down in
Article 6(2) of the Geneva Convention of Continental Shelf of 1958. Both
of them were parties to Geneva Convention whereas Germany signed the Convention
but never ratified it. Germany argued that delimitation should be done in such
a way that every State gets a "just and equitable share" of the
available continental shelf in proportion to the length of its sea frontage. Alternatively,
Germany claimed that if equidistance method were held applicable, the
configuration of the German North Sea Coast constituted special circumstances
such as to justify a departure from that method of delimitation in this
particular case.
Denmark and the Netherlands
argued that even if there was at the date of the Geneva Convention no rule of
customary international law in favour of the equidistance principle and no such
rule was crystallized in Article 6 of the Convention, nevertheless such a rule
has come into being since the Convention, partially because of its own impact,
partially on the basis of subsequent State practice, and that this rule, being
now a rule of customary international law binding on all States, including
Germany, should be declared applicable to the delimitation of the boundaries
between the parties respective continental shelf areas in the North Sea. The
Court observed that not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in such a way as to be
evidence of a belief that this practice is rendered obligatory by the existence
of a rule of law requiring it. The need for such a belief, i.e. the
existence of a subjective element, in implicit in the very notion of the opinio
juris sive necessitatis. The States concerned must therefore feel
that they are conforming to what amounts to a legal obligation. The frequency
or even habitual character of the acts is not in itself enough. There are many
international acts, e.g. in the field of ceremonial act and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.
The States concerned
agreed to draw or did draw the boundaries concerned according to the principle
of equidistance. There is no evidence that they so acted because they felt
legally compelled to draw them in this way by reason of a rule of customary law
obliging them to do so - especially considering that they might have been
motivated by other obvious factors. The Court accordingly concluded that if the
Geneva Convention was not in its origin or inception declaratory of a mandatory
rule of customary international law enjoying the use of the equidistance
principle for the delimitation of continental shelf areas between adjacent
States neither has its subsequent effect been constitutive of such rule; and
that State practice up-to-date has equally been insufficient for the purpose.
In the present case,
the number of ratifications and accessions so far was hardly sufficient. As
regards the time element, all the passage of only a short period of time was
not necessarily a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, it was
indispensable that State practice during that period including that of States
whose interests were specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should have occurred
in such a way as to show a general recognition that a rule of law was involved.
Some 15 cases had been cited in which the States concerned had agreed to draw
or had drawn the boundaries concerned according to the principle of
equidistance, but there was no evidence that they had so acted because they had
felt legally compelled to draw them in that way by reason of a rule of
customary law. The cases cited were in inconclusive and insufficient evidence
of a settled practice.
The Court consequently
concluded that the Geneva Convention was not in its origins or inception
declaratory of a mandatory rule of customary international law enjoying the use
of equidistance principle, its subsequent effect had not been constitutive of
such a rule, and State practice up to date had equally been insufficient for
the purpose.
A custom may be global,
regional or local. A custom which is global binds all the nations. A regional
custom binds only those States which are located in a particular region of the
world, whereas a local custom binds only those States between which the custom
has been established on the basis of aforesaid criteria. A particular practice
between two States may constitute customary international law between them,
even if it departs from a generally applicable rule.
It is noteworthy that
regional rules are not necessarily subordinate to general rules of
international law but may be in a sense "complementary" or
"correlated" thereto. An international tribunal must, as between
States in the particular region concerned, give effect to such regional rules
as are duly proved to the satisfaction of the tribunal.[xliv]
The Asylum case[xlv]
deals with regional custom. In this case, after a military rebellion broke out
in Peru, the Colombian Ambassador in Lima granted asylum to M. Victor Raul
Haya de la Torre, head of American People's Revolutionary Alliance who was
denounced as being responsible. The Colombian Ambassador informed the Peruvian
Government that he had been qualified as a political refugee and asked for a
safe conduct to enable him to leave the country. The Peruvian Government
disputed this qualification and refused to grant a safe conduct following which
the case was submitted to ICJ by both the States.
Columbia argued that on
the basis of Bolivarian Agreement of 1911 on Extradition, the Havana
Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political
Asylum and according to American international law, she was entitled to
qualify the nature of the offence for the purposes of the asylum. Colombia
claimed the right of unilateral and definitive qualification binding upon Peru.
The Court observed that
Bolivarian Agreement, which was a treaty on extradition, recognized the the
institution of asylum in accordance with the principles of international law.
But these principles did not entail the right of unilateral qualification.
Further, it was not possible to deduce from them conclusions concerning
diplomatic asylum as the treaty was on extradition.
The Havana
Convention on Asylum did not recognize the right of unilateral
qualification either explicitly or implicitly. The Montevideo Convention on
Political Asylum had not been ratified by Peru and could not be invoked
against it. On alleged regional or local custom to Latin American States, the
Court observed:
“The party which relies
on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other Party. The Colombian Government
must prove that the rule invoked by it is in accordance with a constant and
uniform usage practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State. This follows from Article 38 of the Statute
of the court, which refers to international custom ‘as evidence of a general
practice accepted as law'.”
Columbia had failed to
prove the existence, either regionally or locally, of a constant and uniform
practice of unilateral qualification as a right of the State of refuge and an
obligation upon the territorial State. The facts submitted to the Court
disclosed too much contradiction and fluctuation to make it possible to discern
therein a usage peculiar to Latin America and accepted as law.
It therefore followed
that Colombia as the State granting asylum, was not competent to qualify the
nature of the offence by a unilateral and definitive decision binding on Peru.
The Right of
Passage over Indian Territory (Merits) case[xlvi]
deals with local custom between India and Portugal. Portugal claimed the right
of passage with respect to two of its enclaves Dadra and Nagar-Haveli which
were surrounded by territory of India and the coastal district of Daman. It was
stated by Portugal that Government of India prevents it from exercising that
right of passage due to which it became impossible for it to exercise its
rights of sovereignty over the enclaves.
Portugal relied on the Treaty
of Poona of 1779 and on Sanads (decrees) issued by the Maratha ruler in
1783 and 1785, as having conferred on Portugal sovereignty over the
enclaves with the right of passage to them. The Court was enabled to conclude
from the Treaty of 1779 that the language employed therein was intended to
transfer sovereignty. Further, it was found by Court that only a revenue tenure
called a jagir of saranjan was granted to Portugal and the
sovereignty. There was, therefore, no question of any right of passage for the
purpose of exercising sovereignty over enclaves.
However, the Court
found that British recognized Portuguese sovereignty over the villages and
subsequently it was tacitly recognized by India. As a consequence, the villages
acquired the character of Portuguese enclaves and there developed a practice of
right of passage. India objected to this practice and argued that no local
custom could be established between only two States.
The Court observed that
a local custom might be established between two States on the basis of long
practice. The Court found it a common ground between the Parties that during
the British and post-British periods, the passage of private persons and civil
officials have not been subject to any restrictions beyond routine control.
Merchandise other than arms and ammunition had also passed freely subject only
at certain times, to customs regulations and such regulation and control as
were necessitated by consideration of securities or revenue. The Court
therefore, concluded that with regard to private persons, civil officials and
goods in general there had existed a constant and uniform practice allowing
free passage between Daman and the enclaves, it was, in view of all the
circumstances of the case, satisfied that that practice had been accepted as
law by the Parties and had given rise to a right and a correlative obligation.
The requirement of a
formal request before passage of armed forces could take place and had been
repeated in an agreement of 1913. With regard to armed police, the Treaty of
1878 and the Agreement of 1913 had regulated passage on the basis of reciprocity
and an Agreement of 1920 had provided that armed police below a certain rank
should not enter the territory of the other party without consent previously
obtained; finally, an agreement of 1940 concerning passage of Portuguese armed
police over the road from Daman to Nagar-Haveli had provided that, if the party
did not exceed ten in number, intimation of its passage should be given to the
British authorities within 24 hours, but in other cases, "the existing
practice should be followed and concurrence of the British authorities should
be obtained by prior notice as heretofore".
The Court was,
therefore, of the view that no right of passage in favour of Portugal involving
a correlative obligation on India had been established in respect of armed forces,
armed police and arms and ammunition.
The International
customs are not only being applied by international courts and tribunals but
also by the national courts. In Paquete Habana case,[xlvii] two coastal fishing
boats under Spanish flag were operating near the Cuban coast during the
Spanish-American war in 1898. They were intercepted and taken away as prizes of
war by a United States naval squadron. The United States Supreme Court while
reversing the orders of the lower Court which had upheld the seizure of vessels
as a legal act of war, directed to return them to their owners. The Court while
referring to various State practices regarding the status of fishing boats
going back to the policy of Henry IV of England in the early 15th Century,
treaties, writings of publicists evidencing usage and decisions of Courts,
found that they uniformly proved the existence of a valid customary rule giving
immunity to small fishing vessels from belligerent capture in time of war.
Customary international
law is considered as universal because it binds all the States. It is however,
not binding on those States that have persistently objected to it during its
development. Thus, customary international law is usually broader in scope than
conventional law. Customary international law normally applies on all States
whereas law contained in treaties or conventions is applicable to State parties
only. Customary international law may be useful as a dynamic source of law in
emerging areas, which have not yet been addressed by treaties. However, greater
care is to be exercised in establishing opinio juris.[xlviii]
In the Columbian
Peruvian Asylum Case, the International Court of Justice observed that the
party relying on custom must prove that the custom was established in such a
manner that it had become binding on the other party, that the rule invoked was
in accordance with a constant and uniform usage practiced by the State in
question, and that this usage was the expression of a right apertaining to the
State granting asylum and a duty incumbent on the territorial State.
In the Right of
Passage over Indian Territory (Merits), the International Court
of Justice observed that where the Court finds a practice clearly established
between two States which was accepted by the parties as governing the relations
between them, the Court must attribute decisive effect to that practice for the
purpose of determining their specific rights and obligations. Such a particular
practice must prevail over any general rules.
According to Rosenne,
Customary International law "consists of rules of law derived from the
consistent conduct of States acting out of the belief that the law required
them to act that way.[xlix]" In the lotus
case,[l] the Permanent Court of
International Justice observed:
“Even if the rarity of
the judicial decisions to be found ….. were sufficient to prove … the
circumstances alleged …., it would merely show that States had often, in
practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so; for only if such abstention
were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact that does not
allow one to infer that States have been conscious of having such a duty on the
other hand ….., there are other circumstances calculated to show that the
contrary is true.
In North Sea
Continental Shelf cases,[li] the ICJ stated that
"not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.[lii]"
In the Continental Shelf case (Libya v.Malta)[liii] the ICJ observed:
“It is of course
axiomatic that the material of customary international law is to be looked for
primarily in the actual practice and opinio juris of States, even
though multilateral conventions may have an important role to play in recording
and defining rules deriving from custom, or indeed in developing them.[liv]"
In order to deduce the
existence of customary rules, the conduct of States should, in general, be
consistent with such rules. Instances of State conduct inconsistent with a
given rule should generally be treated as breaches of that rule, and not as
indications of the recognition of a new rule.[lv] In Nicaragua case,[lvi] the ICJ observed that
for a new customary rule to be formed, not only must the acts concerned amount
to a settled practice, but they must be accompanied by the opinio juris sive
necessitatis. Either the States taking such action or other States
in a position to react to it, must have behaved so that their conduct is
"evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of the opinio
juris sive necessitates.[lvii]"
In Nicaragua v.
United States[lviii]
the ICJ in considering whether the Charter obligation to refrain from the
threat or use of force was also a principle of customary international law,
observed:
“The court has however,
to be satisfied that there exists in customary international law an opinio
juris as to the binding character of such abstention. This opinio
juris may, though with all due caution, be deduced from, inter alia, the
attitude of the Parties and the attitude of States towards certain General
Assembly resolution and particularly resolution 2625 (XXV) .... The effect of
consent to the text of such resolutions cannot be understood as merely that of
a 'reiteration or elucidation' of the treaty commitment undertaken in the
Charter. On the contrary, it must be understood as an acceptance of the validity
of the rule or set of rules declared by the resolutions by themselves.”
Criticizing the Jurisdictional
Immunities of the State case,[lix] Alexander wrote that in
general, the Court's treatment of State practice was inconsistent. Although the
need to identify "settled practice" was properly noted, to qualify as
customary rules embodying the general agreement of States, such practice must
be consistent, general, uniform, and durable. The small number of domestic
decisions referred to by the Court, focusing on various separate aspects of
sovereign immunity, is insufficient to represent a consistent and uniform
practice demonstrating the general agreement of States through the expression
of their legal conviction to that effect (opinio juris).[lx]
It is noteworthy that
where a State opposes a particular rule of customary international law right
from the beginning, when it is in its formative stage, it may not become
binding at least on that State. In Anglo-Norwegian Fisheries case,[lxi] the International Court
of Justice stated that Norway's persistent opposition to any alleged ten-mile
rule for bays (if at all it existed) could not be applied against it.
07. CONCLUSION
Codification of
a large number of law-making treaties in the past few decades has affected the
important role that customary law has played in the development of contemporary
international law. However, treaties do not have the flexibility of customary
law and their range of application is more limited than customary rules. There
is still a law vacuum in many areas of international law and the need for legal
rules is a necessity. Customary law is able to provide some sources of laws in
such cases. In addition, many rules of treaties have originated from customary
law. These special characteristics of customary law indicate that until an
international legislative mechanism comes into existence, customary law
continues to play its essential role in the progressive development of
international law. Customary law will continue to play its role as the
supplementary source of international law.
International
Court of Justice in Military and Paramilitary Activities in and against
Nicaragua has held, "even if two norms belonging to two sources of
international law appear identical in content, and even if the States in
question are bound by these rules both on the level of treaty-law and on that
of customary international law, these norms retain a separate existence. …. customary international continues to exist
and apply, separately from international treaty law, even where the categories
of law have an identical content."
Though the major
corpus of International Customs are substituted by treaties and conventions,
yet new horizons of international customary applications are rising up.
[i] Yoram
Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed
Conflict, pp. 5. Cambridge: Cambridge University Press
[ii] Władysław
Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M.
Thouvenin (eds). 2006. The Fundamental Rules of the International Legal Order,
pp. 83-98. Netherlands: Koninklijke Brill NV
[iii] Article
53 of the Vienna Conventions on the Law of Treaties (1969)
[iv] M.
Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga
Omnes, Law & Contemporary Problems, 59: 63-74
[vi] Fisheries
Case (United Kingdom v Norway) (Judgement) [1951] ICJ Rep 116, 131 where
it is stated '.. The ten-mile rule would appear to be inapplicable as against
Norway inasmuch as she has always opposed any attempt to apply it to the
Norwegian coast.'
[vii] Dinesh, Singh Rawat. "Know Customary
International Law"
(Online). ABC Live. ABC Live. Retrieved
30
April 2017
[viii]
Rosenne,
Practice and Methods of International Law, p. 55
[ix] Customary International Law.
uslegal.com
[x] Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports,
1996, p. 226, 253, [64], http://www.icj-cij.org/docket/files/95/7495.pdf
[xi] North
Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 43, [74], http://www.icj-cij.org/docket/files/51/5535.pdf
[xii] North
Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 43, [74], http://www.icj-cij.org/docket/files/51/5535.pdf
[xiii]
Military
and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 14, 98,
[186], http://www.icj-cij.org/docket/files/70/6485.pdf
[xv] Certain
Norwegian Loans (France v Norway) (Jurisdiction) [1957] ICJ Rep 9, 53
[xvi] See Sloan, United Nations
General Assembly Resolutions in Our Changing World (1991), pp. 71-75
[xvii]
Robert Jennings and Arthur
Watts, eds., Oppenheim s International Law (1996), p. 26
[xviii]
1950 (II) YBILC, pp.
368-372
[xix] Ian Brownlie, Principles of
Public International Law (2008), p. 6
[xx] Jack L. Goldsmith and Eric A,
Posner, The Limits of International Law (2005), p. 23
[xxi] D'Amato,
A., The Concept of Custom in International Law (Cornell University
Press: Ithaca, New York, 1971) at 88
[xxii]
Thirlway, H., International Customary Law and its
Codification (A. W. Sijthoff: Leiden, 1972) at 58
[xxiii]
See Case Concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v United States of America)
(Merits) [1986] ICJ Reports 14
[xxv] North
Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands) [1969]
ICJ Reports 4 at 42
[xxvii]
Asylum Case (Colombia v Peru)
[1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality of the Threat or
Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226
[xxviii]
Case Concerning Right of Passage over Indian Territory
(Portugal v India) (Merits) [1960] ICJ Reports 6 at 39; Asylum
case, note 8 at 276
[xxxii]
See North Sea Continental Shelf cases, note 6 at
229 per Judge Lachs
[xxxiv]
Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South-West Africa) notwithstanding Security Council
Resolution 276 (1970) (Advisory Opinion) [1971]
ICJ Reports 16 at 47
[xxxvi]
North Sea Continental Shelf
cases, note 6 at 41. See also Trial of the Major War Criminals before the
International Military Tribunal, Vol. 1, Judgment, 171 at 253–4
[xxxvii]
Ian Brownlie, Principles
of Public International Law (2008), p. 7
[xxxviii]
Conway W. Henderson, Understanding
International Law (20 I0), pp. 61-62
[xli]
See also
I.H.Ph. Diederiks-Verschoor and V. Kopal, An Introduction to Space Law (2008),
P 10.
[xlii]
United Kingdom v.
Norway, ICJ Reports (1951), p. 116
[xliv]
Asylum case (Columbia
v. Peru), ICJ Reports (1950), p. 266. See also J.G. Starke, introduction to
International Law (First Indian reprint 1994), p. 6
[xlvii]
The Paquete Habana
175 US 677 (1900)
[xlviii]
South Asia Human Rights
Documentation Centre (SAHRDC), Human Rights and Humanitarian Law:
Developments in Indian and International Law (2008), pp. 52-53
[xlix]
Rosanne, Practice and
Methods of International Law (1984), p. 55
[l] France v. Turkey, PCIJ, Series A,
No. 10, 1927, at p. 28
[liv] Ibid., pp. 29-30, para 27
[lvi] lbid., para 207
[lix] Jurisdictional Immunities of the
State (Germany v.
Italy; Greece Intervening)
International Court of' Justice,3 February 2012 available at
http://www.icj-cij.org. Last accessed on 6 November 2015
[lx] Alexander Orakhelashvili, Jurisdictional
Immunities of the State (Germany v. Italy; Greece Intervening) in David
P. Stewart, ed., "International Decisions", 106(3) American
Journal of International Law (2012), p. 609 at p. 614
[lxi] ICJ Reports (1951), p. 116 at p.
131
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