Free Essay

Customary International Law

In: Other Topics

Submitted By chadiamathurin
Words 1187
Pages 5
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.



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.

“Trendtex Trading Corporation v Central Bank of Nigeria” 2 Oct 2011.

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

INTERNET SOURCES (with author)

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

Similar Documents

Free Essay


...A Brief Overview of International Law by Janet Munro-Nelson March 2009 (Download pdf) In matters of world-wide concern, it is international law that determines the responsibilities and obligations of each State, organisation or individual. In the past 50 years, the world has become even more interconnected with the huge leaps in communication and technology, and a growing dependency on other countries for resources and services. Despite recent bad press from some governments, international law is both necessary and important for international cooperation at every level. On a day-to-day level, international law functions effectively with little or no awareness by the participants and without any noticeable seams. One can travel internationally, television events are broadcast world-wide and postal and electronic mail is delivered across borders due to international agreements. The term “international law” actually covers different subsets of law including private international law, public international law, supranational or regional agreements and foreign policy law. When the term “international law” is used in the media or in everyday discussion, the reference is generally to public international law. A short overview of both private international and public international law is given below. Private International Law “Private international law” (as civil law countries such as France, Italy and Spain refer to it) or “conflict of laws” (as common law countries such as the...

Words: 4263 - Pages: 18

Free Essay

Intermational Law

...AN INTRODUCTION TO INTERNATIONAL LAW "The case against historical objectivity is like the case against international law, that it does not exist" (Sir Isaiah Berlin) International law exists, although it is true it suffers from serious problems relating to foundational concepts of justice and reciprocity and is the subject of unfortunate neglect by scholars. The ALE (American Law Institute) defines international law as "law that deals with the conduct of states and of international organizations and with their relations inter se [among themselves], as well as some of their relations with persons, whether natural or juridical" (Buergenthal & Murphy 2002). More elegant definitions can be found, such as the common one where it can be described as "law that deals with the relationships between states, or between persons or entities in different states." Even simpler definitions can be found reducing it to "laws governing relations between nations." There's an unfortunate tendency for the simplest of definitions to focus only on nation-states, as if nation-state relationships were the only thing that mattered, but the fact is that any entity (even a corporation or a person) which possesses "international personality" is subject to international law. This is important because without including international organizations or personalities, there would be no basis for international trade law, international humanitarian law, or international human rights law. If one's......

Words: 11901 - Pages: 48

Free Essay

Relationship Between International Custom and International Convention

...Michel From RWANDA "Relationship between international custom and international convention" Abstract The relationship between treaty and custom is a topic of great importance in practice and theory. An attempt at unraveling the intrigues involved in this relationship requires an understanding of the formal nature of the two sources of treaty and custom, and of the impact they exert upon each other in the search for applicable law in a concrete situation by government officials, judges and legislators. The separateness of these two sources is at times not clear, but shall always be maintained. Rules derived from both sources contribute to the body of international law, and they are rules of equal force. The rules thus derived from them may restrict each other in application and conflict in content, thus being conducive to strangeness in law, and may become asymmetrically opposed. This brief description reveals the relationship between treaties and international custom which can influence international practices. That influence can result in different significant consequences for international relations as a whole. This work is concerned with the relationship between treaty and custom at the international level. Introduction There is still no consensus among academics and other interested parties as to what international law is. However, Prof. J. G. Starke has stated that: “International law consists of a system of laws, the majority of which applies to......

Words: 4982 - Pages: 20

Free Essay

International Law

...aims to give an accessible introduction to an area of law that is the subject of change or public debate. International law 1 overview What is international law? – difference between international law and domestic law – Why do States obey international law? – subjects of international law – How do international law and domestic law interact? 4 sources of international law Jus cogens – international conventions and treaties – Australian treaty practice – custom – general principles of law – judicial decisions and writings of publicists – ‘hard law’ and ‘soft law’. 8 states What is a State? – rights of States – self-determination – creation and recognition of new States – case studies. AUTHOR NOTE: Jane Stratton currently leads corporate social responsibility programs in a leading Sydney law firm, teaches law students at a Sydney university and independently, undertakes community development projects in Western Sydney. Her work has included legal and policy roles in the Public Interest Advocacy Centre, the Australian Human Rights Commission, UN High Commission for Refugees and the ICTY. She has experience in litigious and political advocacy. Jane holds qualifications in law (Honours) and in Arts (Honours) from ANU and a Masters of Law from New York University. ACKNOWLEDGMENT: The publisher would like to thank Dr Ben Saul, Director, Sydney Centre for International and Global Law, for reading and commenting on the text. DESIGN:......

Words: 23627 - Pages: 95

Premium Essay

Austins Theory of Sovereignty

...the bulk of a given society, that determinate superior is sovereign in that society: and the society (including the superior) is a society political and independent’. Laws are defined simply as the command of a superior to an inferior. In Austin’s words : ‘Law is the aggregate of rules set by men as politically superior, or sovereign, to men as political subject’. The chief reason for the bulk of a given society rendering habitual obedience to a determinate human superior is the power it possesses ‘to put compulsion without limit on subjects or fellow subjects’. As to what is the core nature of law, Austin's answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar: • “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with. • Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”). • Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God's general commands, and the general commands of an employer to an employee. • The “sovereign” is defined as a person (or determinate body......

Words: 2480 - Pages: 10

Free Essay


...interfere with the public acts of foreign sovereign states, because sovereigns are equal and equals have no jurisdiction over one another - the judiciary may not interfere with the conduct of foreign policy by either national or foreign governmental authorities because of the doctrine of separation of powers. The doctrine of State immunity emerged as one of the earliest principles of international law. See also The Parliament Belge, where a British court of appeals held that “because of the absolute independence of every sovereign state, each other state must decline to exercise by means of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined for public use, or over the property of any ambassador, though such sovereign, ambassador or property may be on its territory.” B. Restrictive Doctrine of Immunity of Foreign States from Civil Jurisdiction At the time the doctrine of State immunity, emerged it was absolute and deemed to reflect customary international law. Gradually, towards the late 19th century the doctrine became more restrictive. The restrictive doctrine of State immunity in the U.S. – FSIA By the 1940’s, US courts began considering situations where foreign sovereign immunity should be restricted, that is situations where US court could assert jurisdiction over a foreign State. Under this restrictive theory, the Department of State......

Words: 3268 - Pages: 14

Free Essay

Legal Aspects of International Trade

...* International law * The new millennium * International vs. national * Codification * Natural law * Sovereignty * International conflict Sources of international law * Judicial decisions and the teachings of the most qualified publicists in the various nations * International conventions * International customs as evidence of a general practice accepted as law * General principles recognized by civilized nations International treaties and conventions Treaties | Conventions | Considered more serious in scope and function than conventions (for example, peace treaties and border treaties) | Sponsored by an international organization | Must be ratified by the states involved | Negotiated issues are often included in the title | International customs General practices are accepted as law: * Majority of world states recognize the authority of international customs * Must provide evidence of general practice * Accepted as law even if they are not codified (if practiced consistently over time by a majority of world states and if the custom is based in universal morality) General principles of law * What general principles are recognized by all legal systems? * Natural justice * Due process Subsidiary and other sources of international law * Subsidiary Sources * Judicial decisions * Juristic writings * Other Sources * Arbitration * Acts of......

Words: 752 - Pages: 4

Premium Essay

International Law

...EXAM PAPER BY Marcie L. Pereira 2. “International Law has never shown such vibrancy as in the present moment and fragmentation is a result of that dynamism and capacity for adaptation and expansion. Moments of transition in conceptualization and institutional set-up are normally very creative.” Do you agree? Present your position. The system of international law has become increasingly fragmented, particularly since the end of the Cold War. Various factors are responsible for the increased fragmentation: • The proliferation of international regulations; • Increasing political fragmentation (juxtaposed with growing regional and global interdependence in such areas as economics, the environment, energy, resources, health, and the proliferation of weapons of mass destruction); • The regionalization of international law due to a rise in the number of regional fora engaged in the formulation of international regulations; • The emancipation of individuals from States; and • The specialization of international regulations. Presently, there exists no homogeneous system of international law. International law consists of erratic blocks and elements; different partial systems; and universal, regional, or even bilateral subsystems and subsubsystems of different levels of legal integration. All these parts interacting with one another create what may paradoxically be called an “unorganized system, full of intra-systematic tensions, contradictions and frictions. In theory,......

Words: 3665 - Pages: 15

Free Essay

Explain and Critically Evaluate the Concept of “Freedom of Navigation”

..........................................................6 5. NAVIGATION IN TERRITORIAL SEA......................................................................6 5.1. Innocent Passage.....................................................................................................6 5.2. Straits.......................................................................................................................7 5.3. Transit Passage........................................................................................................7 6. THE HIGH SEAS...........................................................................................................7 7. INTERNATIONAL MARITIME EVENTS..................................................................8 7.1. The Corfu Channel...

Words: 2684 - Pages: 11

Free Essay

Just Let Me Access the Damn Site : )

...Handbook on International Moot Court Competitions Preparation & Research Methodology This Handbook is intended to serve as a starting point in the preparation for International Moot Court Competitions. In doing so, it explains what international mooting is, the research methodology involved and the most useful resources available for its preparation. It also provides for the approach one needs to adopt in both oral and written requirements of an international competition which significantly differ from national mooting. The objective behind providing this Handbook is the institutionalisation of standard mooting practices. To this end, it documents the most commonly agreed to and widely followed methods of mooting. It needs to be emphasised that this Handbook is not exhaustive on the areas it touches upon. It is presumed and expected that the reader would go well beyond this Handbook in the course of his/her preparation. The following words of Oscar Wilde express this quite succinctly "Education is an admirable thing, but it is well to remember from time to time that that which is worth knowing cannot be taught." Contents 1. Areas of Law involved 2. Difference between International Law & Municipal Law 3. Difference between International Law Dispute Resolution and Municipal Law Adjudication 4. Steps involved in International Law Moot research 5. Sources of International Law 6. Research resources for various sources of......

Words: 2888 - Pages: 12

Free Essay

Aviation Law

...Aviation Law and Space Law Aviation Law -Air space – customary law since First W.W. That aircraft from one state have right to fly over the high seas, but never over territorial sea of another state -Art.1 1944 Chicago Convention on International Civil Aviation: “every state has complete and exclusive sovereignty over the space above its territory” -It is a serious breach of international law for a state to order to violate the air space of another state (for e.g. USA military aircraft attacked, forced to land or shot down by Hungary, USSR, Czechoslovakia-a number of incidents) -Does the states have an unlimited right to attack intruding aircraft in all circumstances? -Lissitzyn principle (from 1953)-important (book!) -Some states support Lissitzyn principle and that flexible approach to civil aircraft as well as military craft, but other states including ICAO-International Civil Aviation Organization, believe that civil aircraft must never be attacked in such circumstances -The rule that (it is not indeed a rule) trespassing civil aircraft must never be attacked does not mean that they have a legal right to trespass -Assembly of ICAO in 1984 adopted an amendment to 1944 Chicago Conv. On the Int. Civil Aviation which confirms that “every state, in the exercise of its sovereignty is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority.” and that “every state must refrain from resorting to......

Words: 2165 - Pages: 9

Free Essay

Public International Law

...International Law and Municipal Law Issues: • Does domestic law override international law? • Does international law apply domestically? 1 Theoretical Issues • Monism: Essentially exponents of natural-law theories; consequently, they regard all law as part of the same universal normative order, with municipal law deriving its binding force by way of delegation from international law. Thus, monists consider international law a part of domestic law. • Dualism: Essentially exponents of legal positivists – therefore, they have an essentially consensual view of international law, believing that international and municipal law were two separate legal orders. International law must be incorporated into domestic law, for it to apply domestically. • Harmonisation: Assumes that international law forms part of municipal law but acknowledges that on occasions when there was a conflict between the two systems, a municipal judge would be bound by the jurisdictional rules of the domestic domain. 2 Primacy of International Law 1 Municipal Tribunals Whether international law has primacy over municipal law depends on each particular country’s constitution. In Australia, there is no express incorporation of international obligations in Australia. Implementing legislation is required for both treaty and customary international law to apply. See below for further information. 2 International Tribunals A State cannot invoke domestic laws as an excuse for......

Words: 34402 - Pages: 138

Free Essay

Renationalization of Ypf Under International Law

...THE RENATIONALIZATION OF YPF UNDER INTERNATIONAL LAW; A CASE STUDY Nina van Limburg Stirum Brouwersgracht 48-1, 1013GX Amsterdam 0621500446 10127305 Bachelor essay supervisor: Jim Mathis Contents THE RENATIONALIZATION OF YPF UNDER INTERNATIONAL LAW; A CASE STUDY Introduction 3 Chapter 1: Expropriation and Nationalization in general 3 Chapter 2: Nationalization under international law 5 1: Public Purpose 6 2: Discrimination 7 3: Due Process 8 4: Compensation 9 Investment Treaties 9 Chapter 3: YPF; Yacimientos Petrolíferos Fiscales 13 Short history 13 April 2012 14 Chapter 4: Nationalization of YPF under international law 15 Access to the ICSID 17 Application of the law 18 Ad. 1: Public interest 18 Ad. 2: Discriminatory measures 19 Ad. 3:In accordance with the law (Due process) 20 Ad. 4: Adequate compensation 20 Conclusion 23 Bibliography 24 Introduction On the 16th April 2012 Argentine president Cristina Fernandez de Kirchner stated that her government was going to renationalize 51 per cent of the 58 per cent share of Yacimientos Petrolíferos Fiscales (YPF) owned by Repsol. YPF is the biggest Argentine oil company, since 1999 partly owned by the Spanish multinational Repsol. After months of negotiations the Argentine government accused Repsol of not investing sufficiently in YPF to maintain or recover reserves. Due to Repsol’s alleged neglect towards YPF the......

Words: 8411 - Pages: 34

Free Essay

Legality of the Use of Military Force

...a viable option it is important to discuss the legality of the use of military force. This is especially important when taking into account that many of the rules and laws governing this topic were created when wars were fought very differently and opponents in warfare were often better defined than they are today. In most of the world’s conflicts today, a nation may not be engaging into battle against a uniformed militia of a particular state, nor are they engaged in conflict against a ruling government or regime of a state. However many of the laws and rules in place are still relevant and effective even in today’s extremely complex international arena. This topic is one that requires discussion because states need to know when it is legal for them to invade another state and when it is not. Also to outline the consequences of an illegal action in regards to these laws as well as other problems and dilemmas that may arise from this topic. But sometimes situations can call for action immediately. When you must wait on a committee of representatives to vote on the legality of the proposed invasion, you may stand the chance of losing valuable time and effectiveness against enemy combatants. Legal Background The legal background regarding this topic is vague and confusing in some instances. International law prohibits the use of military force, unless it is being used in a manner of self-defense or as a preemptive maneuver to avoid being attacked by another state. However......

Words: 1268 - Pages: 6

Free Essay

International Law

...Running Head: International Law International Law Nathaniel Coakley Troy University IR 5552 Dr. James F. Rinehart April 29, 2011 6407 FLATROCK RD #4 COLUMBUS, GA 31907 According to Slomanson, International Law is defined as the body rules that which nations consider binding in their mutual relations. It is assumed that all nations or states mentioned in this definition are a sovereign state. International Law has become much broader in scope with the increase of non-government organizations, the increase globalization, and the rising behavior of multinationals. This paper will describe what is International Law and its purpose. It will answer two important questions. The first being, is International Law a fundamental requirement of a modern, increasingly independent global system of states and non-states actors? The second question, does international law prevent from pursing its self-interest. Before we can really look at International we must compare it to Domestic Law and identify the differences between the two. The first difference is that Domestic Laws operate within the borders of a single state. Whereas, International Law operates on much broader scope than Domestic Law does. The second difference, there is no definite body in International Law. However, Domestic Law can be referred as the guidelines that summarize the union between the government and the citizens. The third difference between Domestic and International Law is......

Words: 1545 - Pages: 7