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Title: custom as a source of international law
Description: it might be usefull for law students.

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Public International Law Project

Custom
As a Source of

International Law

Compiled By
Ankit Chowdhri
10/09

Contents

Topic Covered

Page Number

Table of Cases

i

Abbreviations

ii

International Law: An Introduction

1

Sources of Law in Brief

2

Sources of International Law

2

Custom: An Introduction

3

Duration of Practice

4

Consistency

6

Generality

7

State Practice

8

Opinio juris

9

Regional Custom

11

Bibliography

13

Webliography

13

Table of Cases

Anglo-Norwegian Fisheries Case: UK v
...
116] 7
Asylum Case: Columbia v
...
266] 4, 6, 11
Continental Shelf Case: Libya v
...
13] 8
Nicaragua v
...
14] 7, 11
North Sea Continental Shelf Cases: Federal Republic of Germany v
...
The Netherlands [(1969) ICJ Rep
...
India [(1960) ICJ Rep
...
Turkey [(1927) PCIJ Rep
...
10, 18] 9
United States Nationals in Morocco Case [(1952) ICJ Rep
...


Edition

Ibid
...


Number

p
...


Reporter

UN

United Nations Organization

v
...
Rules for the regulations of human conduct
are, therefore, present in all societies
...
As the relations of the individuals in a society
are governed by municipal law, the relations of the states are governed by international
law
...
It is in the interest of states themselves to agree and to regulate their
relations with one another
...
The term was coined by the English
philosopher Jeremy Bentham (1748–1832)1
...
It is a distinct and self-contained system of law,
independent of the national systems with which it interacts, and dealing with relations which
they do not effectively govern
...
This can make international
law appear difficult to pin down2
...
3

1

International Law - Encyclopædia Britannica
http://www
...
com/EBchecked/topic/291011/international-law
2
McKeever, Kent, Researching Public International Law
...
law
...
edu/guides/Researching_Public_International_Law
3
rd
Wallace, Rebecca MM
...
, Universal Law Publishing Co
...
Ltd
...
p
...


Page | 1

Sources of Law in Brief
Rules and norms of any legal system derive authority from their source
...
In a developed municipal
system, sources may be readily identifiable, for example, in India the sources of law include
Custom recognized by law, Precedent and Legislation
...
International law is to be found in the common consent of the
international community5
...


Sources of International Law
Keeping in mind that the international community neither has a Constitution nor a
legislature the question relating to the sources of the sources of International Law is answered
by Article 38 of the Statute of the International Court of Justice which does not expressly
mention the word „source‟ but spells out how the court is to decide disputes which may come
before it for settlement
...
7 The Article 38 reads as under8:
1
...
International conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b
...
The general principles of law recognized by civilized nations;
d
...

4

rd

Wallace, Rebecca MM
...
, Universal Law Publishing Co
...
Ltd
...
p
...

th
Oppenheim’s International Law, Volume I, 9 Ed
...
p
...

6
See Sources of International Law, p
...

7
th
Oppenheim’s International Law, Volume I, 9 Ed
...
p
...

8
Charter of the United Nations and Statute of the International Court of Justice, United Nations Department of
Public Information, November 2008, UN New York
...
91
...
This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto
...
They are as under:
1
...
International Custom
3
...
Judicial Decisions
5
...


Custom: An Introduction
In any primitive society certain rules of behavior emerge and prescribe what is
permitted and what is not
...
They are not, at least in the early stages, written down or codified,
and survive ultimately because of what can be called an aura of historical legitimacy
...
Custom, for this is how the original process can be
described, remains and may also continue to evolve
...


Salmond has given the reasons to highlight the importance for the recognition of
custom in law
...

9

th

Shaw, Malcolm N
...
, Cambridge University Press, Cambridge, 2009
...
72-73
...
N
...
, Central Law Agency, Allahabad, 2002
...
182
...
”11
The International Court of Justice in Asylum Case: Columbia v
...
e
...
13 The facts of the case have been discussed in depth later in the compilation
...


A similar case was also held by the International Court of Justice in the United States
Nationals in Morocco Case15 where the denial was also a cause of ambiguity and
uncertainty
...
16
The various essentials and features of custom as a source on international law have
been discussed in the topics to follow
...
There are a number of points to be considered concerning the nature of a particular
practice by states, including its duration, consistency, repetition and generality
...
This can vary from „time
immemorial‟ in the English common law dating back to 1189, to figures from thirty or forty
years on the Continent
...
N
...
, Allahabad Law Agency, Faridabad, 2008
...

(1950) ICJ Rep
...

13
Kaczorowska Alina, Public International Law, Old Baily Press, London, 2002
...
15
...
6
...
200
...
, Pearson Education Singapore, Delhi, 2005
...
26
...
, International Law, 6 Ed
...
p
...

12

Page | 4

In international law there is no rigid time element and it will depend upon the
circumstances of the case and the nature of the usage in question
...

Duration is thus not the most important of the components of state practice
...


The practice relating to continental shelf was introduced in 1945, and by 1958 it had
become a customary rule of International Law
...
Denmark; Federal Republic of Germany v
...


Similarly, the principle of sovereignty in the air space arose spontaneously at the
outbreak of the First World War
...
21 Thus the passage of a considerable time is not necessary provided the practice
is accepted by the states
...

See topic titled “Consistency” p
...

20
(1969) ICJ Rep
...

21
th
Aggarwal, H
...
, International Law & Human Rights, 17 Ed
...
p
...

19

Page | 5

Consistency
The basic rule as regards continuity and repetition was laid down in the Asylum case22
decided by the International Court of Justice in 1950
...
The case concerned Haya de la Torre, a Peruvian, who was sought by his
government after an unsuccessful revolt
...

Colombia brought the matter before the International Court of Justice and requested a
decision recognizing that it (Colombia) was competent to define Torre‟s offence, as to
whether it was criminal as Peru maintained, or political, in which case asylum and a safe
conduct could be allowed
...
However, the Court felt that in the Asylum litigation, state practices had
been so uncertain and contradictory as not to amount to a „constant and uniform usage‟
regarding the unilateral qualification of the offence in question
...

In the Asylum Case23 the International Court of Justice held:
“The party which relies on custom … must prove that this is established in such a
manner that it has become binding on the other party … that the rule invoked … is in
accordance with a constant and uniform usage, practiced 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 …”
“… The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and
in the official views expressed on different occasions; there has been so much inconsistency
22
23

(1950) ICJ Rep
...

(1950) ICJ Rep
...


Page | 6

in the rapid succession of conventions on asylum, ratified by some states rejected by others,
and the practice has been so much influenced by considerations of political expediency in the
various cases, that it was not possible to discern in all this any constant usage
...
United States case24 that it was
not necessary that the practice in question had to be „in absolutely rigorous conformity‟ with
the purported customary rule
...

In other words it would suffice that the conduct in general was consistent with the rule
be treated as breach of that rule rather than as recognition of a new rule25
...
Such a rule will be binding
on states generally and an individual state may only oppose its application by showing that is
has persistently objected to the rule from the date of first formulation
...
Norway27, for example, the Court
rejecting the UK argument that the ten-mile closing line for bays was a rule of customary
law, went on to observe that the event if it has acquired the status of a rule of customary
international customary law „in any event the …rule would appear to be inapplicable as
against Norway, in as much as she has always opposed any attempt to apply it to the
Norwegian coast
...
Therefore, rules of customary law can exist which are

24

(1986) ICJ Rep
...

Kaczorowska, Alina, Public International Law, Old Bailey Press, London, 2002
...
17
...
p
...

27
(1951) ICJ Rep
...

25

Page | 7

not binding on all states: the practice may be limited to a small group of states, or a state may
contract out of a custom in the process of formulation
...
Obvious examples include
administrative acts, legislation, decisions of courts and activities on the international stage,
for example treaty-making
...
There are the state‟s legal officers, legislative institutions, courts,
diplomatic agents and political leaders
...
29

Notwithstanding the indicators of state practice, overt state practice continues to be
important as was emphasized by the International Court of Justice in the Continental Shelf
Case: Libya v
...

States‟ municipal laws may in certain circumstances form the basis of customary
rules
...
The Court held that British navigational procedures
established by an Act of Parliament formed the basis of the relevant international custom
since other states had legislated in virtually identical terms
...
The view has also been expressed that
mere claims as distinct from actual physical acts cannot constitute state practice
...
11
...
, International Law, 6 Ed
...
p
...

30
(1985) ICJ Rep
...

31
14 Wallace 170 (1871)
29

Page | 8

based on the precept that „until it [a state] takes enforcement action, the claim has little value
as a prediction of what the state will actually do‟
...
Claims and conventions of states in various contexts have been
adduced as evidence of state practice and it is logical that this should be so, though the weight
to be attached to such claims, may, of course, vary according to the circumstances
...
In this sense they operate in the same way as physical acts
...
It is suggested that the formulation
that „state practice covers any act or statements by a state from which views about customary
law may be inferred‟, is substantially correct
...
32

Opinio juris
To assume the status of customary international law the rule in question must be
regarded by states as being binding in law, i
...
, that they are under a legal obligation to obey
it
...
33
In other words, the opinio juris, or belief that a state activity is legally obligatory, is
the factor which turns the usage into a custom and renders it part of the rules of international
law
...
34
The Permanent Court of International Justice expressed this point of view when it
dealt with the SS Lotus Case: France v
...
The issue at hand concerned a collision on
the high seas between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship
...
When the Lotus reached Istanbul, the French officer was arrested on a
32

th

See Shaw, Malcolm N
...
, Cambridge University Press, Cambridge, 2009
...
83
...
p
...

34
th
Shaw, Malcolm N
...
, Cambridge University Press, Cambridge, 2009
...
84
...
Series A, No
...

33

Page | 9

charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him
...
To justify this, France referred to the absence of previous criminal
prosecutions by such states in similar situations and from this deduced tacit consent in the
practice which therefore became a legal custom
...
It
held that „only if such abstention were based on their [the states] being conscious of a duty to
abstain would it be possible to speak of an international custom‟
...

In the North Sea Continental Shelf Cases36 the International Court of Justice required
that opinio juris be strictly provided
...
However, West Germany could not agree with either
Holland or Denmark over the respective boundary lines and the matter came before the
International Court of Justice
...
The need for such a belief,
i
...
, the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis
...
The frequency or even habitual character of the acts is not in
itself enough
...
In the field of ceremonial 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
...
Judge
Sorenson, echoing comments made years earlier by Sir Hersch Lanterpacht, argue that
36

(1969) ICJ Rep
...


Page | 10

because of the difficulty in establishing opinio juris, uniform conduct should be taken as
implying the requisite intention unless the contrary was established
...
37 The approach of the North Sea Continental Shelf Cases38 was
maintained by the Court in the Nicaragua case39
...
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
...
e
...


Given the difficulties in establishing opinio juris it seems likely that the Court will
place increasing emphasis on determining the extent of the practice and will be ready to infer
opinio juris from those examples of practice that confirm that the actions in issue are not
merely casual acts or acts dictated by international comity
...
General customs are those customary rules
binding upon the international community as a whole
...
40 Such an approach
may be seen as part of the need for „respect for regional legal traditions‟
...
The Court declared that 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‟
...


37

Kaczorowska, Alina, Public International Law, Old Bailey Press, London, 2002
...
18
...
3
...
14
...
p
...

41
See the Eritrea/Yemen (Maritime Delimitation) Case, 119 ILR, p
...
Referred in Shaw, Malcolm N
...
, Cambridge University Press, Cambridge, 2009
...
92
...
226
...
43
In the Right of Passage over Indian Territory Case: Portugal v
...
The Court said:
“With regard to Portugal‟s claim of a right of passage as formulated by it on the basis
of local custom, it is observed on behalf of India that no local custom could be established
between only two states
...

The Court sees no reason why long continued practice between two states accepted by them
as regulating their relations should not form the basis of mutual rights and obligations
between two states
...
While in
the case of a general customary rule the process of consensus is at work so that a majority or
a substantial minority of interested states can be sufficient to create a new custom, a local
custom needs the positive acceptance of both (or all) parties to the rule
...
45

43

th

Shaw, Malcolm N
...
, Cambridge University Press, Cambridge, 2009
...
92
...
6
...
, International Law, 6 Ed
...
p
...

44

Page | 12

Bibliography


Aggarwal, H
...
, International Law & Human Rights, 17th Ed
...




Charter of the United Nations and Statute of the International Court of Justice, United Nations
Department of Public Information, November 2008, UN New York
...
N
...
, Central Law Agency,
Allahabad, 2002
...




Oppenheim‟s International Law, Volume I, 9th Ed
...




Shaw, Malcolm N
...
, Cambridge University Press, Cambridge,
2009
...
N
...
, Allahabad Law Agency,
Faridabad, 2008
...
, International Law, 3rd Ed
...
Pvt
...
,
Delhi, 2003
...

http://www
...
com/EBchecked/topic/291011/international-law



McKeever, Kent, Researching Public International Law
...
law
...
edu/guides/Researching_Public_International_Law

Page | 13


Title: custom as a source of international law
Description: it might be usefull for law students.