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Customary International Law

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Customary international Law, according to Article 38(1)(b) of the International Court of Justice Statute is defined as “evidence of general practice accepted as law”. A more implicit definition says, “Customary international law develops from the practice of States. To international lawyers, the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern. (Public International Law In a Nutshell: 22-23). In examining customary international law in light of these definitions, this essay will seek not only to answer the questions of whether its method of creation is uncertain, its method of development, mysterious and its application arbitrary. Customary international law is created when a norm or principle embraces a particular set of characteristics. There has been great debate among legal academics as to the uncertainty of this method of creation. However, the implicit characterization of what is considered to be customary international law suggests that there is some measure of certainty pertaining the method of creation. According to Berkeley Law, for a principle or rule to be characterized as customary international law it must comprise of three undeniable characteristics, which include state practice, opinio juris, and the acceptance by a significant number of states. Theoretically, if these three criteria are not met, then the probability that a practice is made customary law is significantly low. Shaw (2008) goes on further to say that characterization forces there to be distinction between principles of morality and social usage. The scope of certainty achieved by this method of creation, is best stated by Jonathan Charney in the following words: “Traditionally, the International Court of Justice identified, three relatively uncontroversial circumstances in which international agreements may be relevant to finding customary international law.” (International Agreements and the Development of Customary International Law: 971). The opinions of the aforementioned scholars suggests that the method of creation of Customary International Law - be it in the conversion of norms and principles or finding through international agreements - is generally characterized by some measure of certainty. Still, some argue that it is this very same characterization which causes the uncertainty concerning the method of creation. They argue that the dependence of the method of creation on states action does not help in the distinction between behaviour undertaken because of law and behaviour The conclusion is that the method of creation is not entirely uncertain. There has been an establishment of some sort of precision in the creation of customary international law. Those who have argued against the certainty of the method of creation of customary international law have also argued that its application is arbitrary. The word “arbitrary” suggests that the application of customary international law is solely dependent on the “whims and fancies” of states. A surface, fickle analysis would no doubt give credence to this statement, on the basis that the establishment of customary international law is reliant on states‘ decision to put into practice a particular norm. However, an intrinsic analysis will show that to say that the application of customary international law is arbitrary is a most confusing statement as the validity of customary international law lies not in the possibility of the acceptance of norms but in an established common state practice, or general acceptance. In a Yale Law Journal dated 2011, two law professors, Bradley and Gulati made a case for the USA being given the right to opt out of customary international law. They gave credence to their case by critiquing the customary international rule of not searching the pouches of diplomats entering foreign embassies, saying that emerging circumstances such as increases in terrorism, should allow states to reverse that particular customary international rule. This debate suggests that states do not simply have the right to opt out of customary international law, thus rendering it circumspect. More importantly, it brings to light the debate on whether customary international law is progressive enough to continue to be the primary source of the governance of relationships among states. The method development of customary law is an area of great concern for those who practice international law. There have been questions as to whether customary international law is designed to be flexible in its application to the ever changing international system, and some argue that its development is mysterious. While there have been cases where there has been progressive application and development, it will be come evident that unlike the other two components, the method of development of customary international law will prove to be static in its operation in that (within the English Law Courts), the consensus is that the courts must apply the prevailing international rule at that particular time. In other words, precedents/previous rules over ride new rules. An example of progressive development is the case of Trendtex Trading Corporation vs Central Bank of Nigeria. In this case the Nigerian Central Bank made a claim for state immunity. All three of the Judges accepted the doctrine of incorporation, where international law was incorporated into domestic law, in order for domestic law to respond to changes in international law. However, it is safe to say that this move towards development was discontinued as is evident in the cases of Thai -Europa Services vs Government of Pakistan. The doctrine of stare decisis or doctrine of precedent was further reaffirmed by Maclaine Watson vs. Department of Trade and Industry. These happenings suggest that perhaps the method of development of customary international law is not an enigma. Rather, developments are lacking and do not cater to the ever changing international system, on the grounds that stare decisis does not really account for new norms that are developed in relations among states. This is best stated by (Shaw, 2008:73) when he says, “it is too clumsy and slow moving to accomodate the evolution of international law anymore.” In seeking to answer the questions highlighted in the introductory paragraph, these answers were found: The method of creation of international law is not entirely uncertain, because it is specifically characterized. It was also found that the method of development, while not mysterious, does not adequately cater to the changing international system. Finally, it was found that the application of customary international law is generally accepted as the primary source of the governance of relations among states, it is adhered to, and thus its application is rendered circumspect as opposed to arbitrary.

BIBLIOGRAPHY

BOOKS

Aust, Anthony.2005. Handbook of International Relations. New York: Cambridge University Press.

Carney, Jonathan I.19866. International Agreements and the Development of Customary International Law

Shaw, Michael N. 2008. International Law. 6th edition. Boston: Little Brown.

INTERNET SOURCES
“Trendtex Trading Corporation v Central Bank of Nigeria” Swarb.co.uk. 2 Oct 2011. www.swarb.co.uk

“Ag Officials Prepare for Trade Mission with Cuba”. The Associated Press. 11th August, 2005. MadisoNet.com.

INTERNET SOURCES (with author)

Shea, Christopeher. “Can the US Opt Out of International Customary Law?”. January, 2011. blogs.wsj.com.

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