SOURCES OF INTERNATIONAL LAW CUSTOM

1. Distinction between national and intenational law so!ces

On the national plane, the formal sources of law are constitutions, legislative and
administrative acts, and, in countries where the doctrine of precedent prevails (stare
decisis), the decisions of judicial tribunals.
On the international plane, there is no constitution or other fundamental document, no
legislature with the power to promulgate laws, no administrative agencies to produce
regulations and implement legislative enactments. Moreover, the ICJ lacs plenar! power
over international disputes, and its decisions are binding onl! on the states that are parties
to the dispute. "he! have no precedential value because stare decisis is not a rule of
international law. #rt. $% ICJ &tatute '"he decision of the Court has no binding force
e(cept between the parties and in respect to that particular case.)
". Distinction between taditional and #oden intenational law
Taditional law
* dominated b! individualism, which made consent an essential part of law
formation
* treaties were formed through the e(press consent of the contracting &tates, while
custom was said to reflect a tacit agreement. &ee West Rand Central Gold Mining;
see also the S.S. Lotus case.
Antelope Case, +& &upreme Court, ,-.$ * "he +.&. &upreme Court restated the principle
of e/ualit! of nations and the principle that no state ma! impose its will on another. 0e
then pointed out that the right to engage in slave trade (which was vested in all b! the
consent of all, can be divested onl! b! consent1 therefore, that right must remain lawful
as to those (lie &pain) who have not renounced to it.
2hile this regime is still valid toda!, some new trends have emerged and attenuated
&tates3 unfettered freedom.
New tends
* "he 4ienna Convention of ,%5% on the 6aw of "reaties, followed b! the ,%-%
4ienna Convention on the 6aw of "reaties between &tates and International
Organi7ations establish the rules governing treaties
* 8mergence of jus cogens restrained &tates3 freedom and established a certain
hierarch! in international law. Jus cogens rules prevail over other international
law rules
* "here e(ists some disagreement toda! as to whether states can object to the
formation of customar! rules.
$. C!sto# Ceation and C%aacteistics
,
a& so!ces o' intenational law ( At. $) IC* Stat!te
#ricle 9-., of the ICJ &tatute
b& %ieac%+ o' intenational no#s
#rt. 9- is silent as to hierarchical value of the three sources that are listed. "oda!
peremptor! norms are superior to customar! and treat! laws. It follows that a custom or
treat! ma! not contradict a rule of jus cogens. 0owever, custom and treaties have e/ual
force and when the! are in conflict, some general law principles appl!:
* the later law repeals the earlier one, although a later law that is general in
character does not derogate from an earlier one
* the more specific law prevails over a general law
* a rule of customar! international law would prevail over a general principle of
law.
c& ele#ents o' c!sto#
"he creation of custom is not a deliberate law*maing process. 2hen &tates participate in
the custom*maing process, their primar! goal is not to create a rule of law, but rather to
safeguard their interests.
#rt. 9-.,(b) states that 'a general practice accepted as law) is an international custom. In
other words, customar! international law results from a general and consistent practice of
states followed b! them from a sense of legal obligation.) &o, there are two elements to
custom:
,eneal -actice .!s!s&
* "he practice of states means official government conduct
* Inaction can also be deemed a form of practice
* "he practice begins as a result of &tates economic, political and social interests.
"he more conflicting these are, the more important the element of practice
becomes
* In the North Sea Continental Shelf case, the ICJ stated that the practice must be
e(tensive and virtuall! uniform. In Nicaragua, the same Court stated that some
instances of non*compliance with the rule do not mean that the rule has not come
into being
* "he practice doesn3t have to be universal. "he practice must be one accepted b!
the world3s major powers and the states that are affected b! it. "here must not be a
significant number of states that have consistentl! rejected it.
* See De Meeus . !or"ano, Italian Court of Cassation, ,%.. ; "he Court held that a
customar! rule had evolved in the international communit! granting foreign
diplomats immunit! from foreign jurisdiction for private acts. #s evidence for the
emergence of such a rule the court pointed out to the protest and the fact that it
came from the entire diplomatic corps. "he Court also too into consideration
several treaties, which b! not e(cluding private acts from immunit!, reaffirmed
the customar! rule that such immunit! e(ists with respect to private acts as well
as official acts.
* #he $a%uette &a'ana, +& &upreme Court, ,%<< ; "he &upreme Court reversed
the lower courts and held that there is customar! law that e(empts peaceful
.
fishermen from capture. "he Court arrived to this conclusion based on a historical
overview as to how different countries treated the issue throughout time
o-inio /!is
* =eneral belief that the such practice amounts to law and is binding
* Opinio juris ma! be inferred from the fact that a rule has generall! and
consistentl! been followed over a period of time. # time period, however short,
would not however prevent the formation of a customar! rule if the practice,
especiall! that of &tates that are specificall! affected, has been both e(tensive and
virtuall! uniform and has occurred in such a wa! as to show a general recognition
of a legall! biding obligation.
* Opinio ac/uires a prominent role in the formation of jus cogens rules because it is
based on inherentl! rational grouds.
>o the elements of general practice and opinio juris need both be present from the outset?
+suall!, engage in certain conduct on the basis of their political, economical and social
needs (opinio necessitatis). If that practice does not meet strong objections b! other
states, but is increasingl! accepted and followed, a customar! rule is usuall! formed. It is
at that time that the state practice is dictated b! opinio juris: at this stage, states start
acting in accordance with the practice not because of opinio necessitatis, but because of
opinio juris, i.e. the belief that an international rule re/uires them to do so. 8.g. rules
regarding the continental shelf (each coastal state has e(clusive jurisdiction over the
natural resources of the subsoil and the seabed of the continental shelf beneath the high
sea contiguous to its coast).
# feature of custom that distinguishes it from treaties is that a custom is normall! binding
upon all members of the world communit!, whereas treaties onl! bind the &tates part! to
it.
2ho is custom binding upon?
"raditional international law considered custom to be an e(pression of tacit agreement.
+nder modern international law, it is clearl! established that customar! rules need not be
supported b! all states. It is enough for the majorit! of states to engage in a consistent
practice and to believe in its legall! binding authorit!. # &tate would be bound b! a
customar! rule if it was silent or indifferent as to it.
Is a &tate that has consistentl! rejected a practice that amounts to custom, bound b! it?
&ince international law rests on consent, it follows that such state would not be bound b!
a customar! rule which it has consistentl! rejected.
Cassese and man! others have contested this view and have argued that custom has lost
its original consensual features, based on the fact that the international communit! has
evolved to be much less individualistic and it is difficult for one state to resist the
pressure of the majorit! of the world communit!.
9
0ow about newl! formed states? "here is some disagreement on the issue, but the
prevailing view seems to be that the! are bound b! all rules of international law in force
at the time the! become subjects of international law.
0. C!sto# in Intenational 1!#anitaian Law
"he Martens Clause * provides that before more a more detailed code of the law of war
has been issued, the belligerents and the inhabitants during armed conflict, remain under
the protection of the rules and principles of the law of nations, as the! result from the
usages established among civili7ed people, from the laws of humanit! and the dictates of
the public conscience.
"he clause has been later adopted b! numerous treaties, including the four =eneva
Conventions of ,%@%.
2hat is the effect of the Martens Clause?
It puts the laws of humanit! and the dictates of public conscience on the same footing as
the usages of &tates, so state practice ma! not need to appl! to the formation of these
laws. In other words, the re/uirement of usus is less stringent in international
humanitarian law than it is in areas where rules emerge as a result of &tates3 economic,
political and social interests. 2hat is more important is the opinio juris. "he e(pression
of legal views b! &tates as to the legal force of certain rules or principles ma! be
sufficient for the formation of a principle or customar! rule in the area of humanitarian
law, even in the absence of &tate practice element re/uired for the formation of
customar! international law.
2. Local C!sto#a+ R!les
See #he As(lu) Case (Colombia v. Aeru), ICJ, ,%$<
"here ma! e(ist certain customar! rules that are binding onl! to states in a certain
geographical region. "he court held that Columbia failed to establish such rule as there
was no evidence of a constant and uniform usage practiced b! the &tates in /uestion, nor
was there evidence that the purported usage was the e(pression of a right inuring to the
&tate granting as!lum and an obligation for the territorial state (whose national sees
as!lum). "he court found the alleged practice to be inconsistent, even contradictor! and
whenever it was present, it was commanded b! considerations of political e(pedienc!.
3. 4esent Role o' C!sto#
2hat are the limitations of custom?
* the changes that occurred after 22II with emergence of new states and
ideologies re/uired international law to respond faster and reflect the current
world realities
* criticism b! socialist and developing countries that custom reflected mostl!
2estern values
* customar! rules tend to not be clearl! defined due to their unwritten character and
man! countries push for their codification
* world communit! has e(panded and is more diverse, with &tates3 being more
economicall! and ideologicall! divided, which maes the establishment of an
uniform and consistent practice more difficult1 difficult! to reach consensus
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0owever, custom pla!s huge role in the area of emerging economic interest where
treaties cannot respond rapidl!. Custom also pla! a rule in major political conflicts, where
reaching the agreement needed for the signing of a treat! often proves difficult (e.g.
customar! modification of #rt. .B.9 resulted in the &C being able to adopt a decision
where % of its members vote in the affirmative or a'stain).
5. Codi'ication o' C!sto#a+ Law
&tates tend to prefer custom to treaties because of its more certain character and allows
for international law to tae into account the new world realities.
Codification treaties ma! have the following effects:
* a declarator! effect (merel! restating e(isting law). In Legal Conse%uences for
States of the Continued $resence of South Africa in Na)i'ia, the ICJ stated that
#rticle 5< of the 4ienna Convention on the 6aw of "reaties regarding the
termination of a treat! on account of breach was merel! declarator!
* a cr!stalli7ing effect ; brings to completion an emerging customar! rule. In
*celandic !isheries,the ICJ, with regard to #rt. $. of the 4ienna Convention on
the 6aw of "reaties regarding coercion as a ground for invalidit! of a treat!
* a generating effect (when a treat! provision begins a practice that leads to the
formation of a new customar! rule)
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