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SOURCES OF INTERNATIONAL LAW CUSTOM 1.

. Distinction between national and international law sources 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 lacks plenary power over international disputes, and its decisions are binding only on the states that are parties to the dispute. They have no precedential value because stare decisis is not a rule of international law. Art. 59 ICJ Statute The decision of the Court has no binding force except between the parties and in respect to that particular case. 2. Distinction between traditional and modern international law Traditional law - dominated by individualism, which made consent an essential part of law formation - treaties were formed through the express consent of the contracting States, while custom was said to reflect a tacit agreement. See West Rand Central Gold Mining; see also the S.S. Lotus case. Antelope Case, US Supreme Court, 1825 - The U.S. Supreme Court restated the principle of equality of nations and the principle that no state may impose its will on another. He then pointed out that the right to engage in slave trade (which was vested in all by the consent of all, can be divested only by consent; therefore, that right must remain lawful as to those (like Spain) who have not renounced to it. While this regime is still valid today, some new trends have emerged and attenuated States unfettered freedom. New trends - The Vienna Convention of 1969 on the Law of Treaties, followed by the 1989 Vienna Convention on the Law of Treaties between States and International Organizations establish the rules governing treaties - Emergence of jus cogens restrained States freedom and established a certain hierarchy in international law. Jus cogens rules prevail over other international law rules - There exists some disagreement today as to whether states can object to the formation of customary rules. 3. Custom Creation and Characteristics

a) sources of international law - Art. 38 ICJ Statute Aricle 38.1 of the ICJ Statute b) hierarchy of international norms Art. 38 is silent as to hierarchical value of the three sources that are listed. Today peremptory norms are superior to customary and treaty laws. It follows that a custom or treaty may not contradict a rule of jus cogens. However, custom and treaties have equal force and when they are in conflict, some general law principles apply: - 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 customary international law would prevail over a general principle of law. c) elements of custom The creation of custom is not a deliberate law-making process. When States participate in the custom-making process, their primary goal is not to create a rule of law, but rather to safeguard their interests. Art. 38.1(b) states that a general practice accepted as law is an international custom. In other words, customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. So, there are two elements to custom: general practice (usus) - The practice of states means official government conduct - Inaction can also be deemed a form of practice - The practice begins as a result of States economic, political and social interests. The 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 extensive and virtually 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 - The practice doesnt have to be universal. The practice must be one accepted by the worlds major powers and the states that are affected by it. There must not be a significant number of states that have consistently rejected it. - See De Meeus v. Forzano, Italian Court of Cassation, 1922 The Court held that a customary rule had evolved in the international community granting foreign diplomats immunity from foreign jurisdiction for private acts. As 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. The Court also took into consideration several treaties, which by not excluding private acts from immunity, reaffirmed the customary rule that such immunity exists with respect to private acts as well as official acts. - The Paquette Habana, US Supreme Court, 1900 The Supreme Court reversed the lower courts and held that there is customary law that exempts peaceful

fishermen from capture. The Court arrived to this conclusion based on a historical overview as to how different countries treated the issue throughout time opinio juris General belief that the such practice amounts to law and is binding Opinio juris may be inferred from the fact that a rule has generally and consistently been followed over a period of time. A time period, however short, would not however prevent the formation of a customary rule if the practice, especially that of States that are specifically affected, has been both extensive and virtually uniform and has occurred in such a way as to show a general recognition of a legally biding obligation. Opinio acquires a prominent role in the formation of jus cogens rules because it is based on inherently rational grouds.

Do the elements of general practice and opinio juris need both be present from the outset? Usually, engage in certain conduct on the basis of their political, economical and social needs (opinio necessitatis). If that practice does not meet strong objections by other states, but is increasingly accepted and followed, a customary rule is usually formed. It is at that time that the state practice is dictated by 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 requires them to do so. E.g. rules regarding the continental shelf (each coastal state has exclusive jurisdiction over the natural resources of the subsoil and the seabed of the continental shelf beneath the high sea contiguous to its coast). A feature of custom that distinguishes it from treaties is that a custom is normally binding upon all members of the world community, whereas treaties only bind the States party to it. Who is custom binding upon? Traditional international law considered custom to be an expression of tacit agreement. Under modern international law, it is clearly established that customary rules need not be supported by all states. It is enough for the majority of states to engage in a consistent practice and to believe in its legally binding authority. A State would be bound by a customary rule if it was silent or indifferent as to it. Is a State that has consistently rejected a practice that amounts to custom, bound by it? Since international law rests on consent, it follows that such state would not be bound by a customary rule which it has consistently rejected. Cassese and many others have contested this view and have argued that custom has lost its original consensual features, based on the fact that the international community has evolved to be much less individualistic and it is difficult for one state to resist the pressure of the majority of the world community.

How about newly formed states? There is some disagreement on the issue, but the prevailing view seems to be that they are bound by all rules of international law in force at the time they become subjects of international law. 4. Custom in International Humanitarian Law The 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 they result from the usages established among civilized people, from the laws of humanity and the dictates of the public conscience. The clause has been later adopted by numerous treaties, including the four Geneva Conventions of 1949. What is the effect of the Martens Clause? It puts the laws of humanity and the dictates of public conscience on the same footing as the usages of States, so state practice may not need to apply to the formation of these laws. In other words, the requirement of usus is less stringent in international humanitarian law than it is in areas where rules emerge as a result of States economic, political and social interests. What is more important is the opinio juris. The expression of legal views by States as to the legal force of certain rules or principles may be sufficient for the formation of a principle or customary rule in the area of humanitarian law, even in the absence of State practice element required for the formation of customary international law. 5. Local Customary Rules See The Asylum Case (Colombia v. Peru), ICJ, 1950 There may exist certain customary rules that are binding only to states in a certain geographical region. The court held that Columbia failed to establish such rule as there was no evidence of a constant and uniform usage practiced by the States in question, nor was there evidence that the purported usage was the expression of a right inuring to the State granting asylum and an obligation for the territorial state (whose national seeks asylum). The court found the alleged practice to be inconsistent, even contradictory and whenever it was present, it was commanded by considerations of political expediency. 6. Present Role of Custom What are the limitations of custom? - the changes that occurred after WWII with emergence of new states and ideologies required international law to respond faster and reflect the current world realities - criticism by socialist and developing countries that custom reflected mostly Western values - customary rules tend to not be clearly defined due to their unwritten character and many countries push for their codification - world community has expanded and is more diverse, with States being more economically and ideologically divided, which makes the establishment of an uniform and consistent practice more difficult; difficulty to reach consensus

However, custom plays huge role in the area of emerging economic interest where treaties cannot respond rapidly. Custom also play a rule in major political conflicts, where reaching the agreement needed for the signing of a treaty often proves difficult (e.g. customary modification of Art. 27.3 resulted in the SC being able to adopt a decision where 9 of its members vote in the affirmative or abstain). 7. Codification of Customary Law States tend to prefer custom to treaties because of its more certain character and allows for international law to take into account the new world realities. Codification treaties may have the following effects: - a declaratory effect (merely restating existing law). In Legal Consequences for States of the Continued Presence of South Africa in Namibia, the ICJ stated that Article 60 of the Vienna Convention on the Law of Treaties regarding the termination of a treaty on account of breach was merely declaratory a crystallizing effect brings to completion an emerging customary rule. In Icelandic Fisheries,the ICJ, with regard to Art. 52 of the Vienna Convention on the Law of Treaties regarding coercion as a ground for invalidity of a treaty a generating effect (when a treaty provision begins a practice that leads to the formation of a new customary rule)