CUSTOM AS A SOURCE OF INTERNATIONAL LAW

ABSTRACT:

Custom as a source of international law is an important part of the

development of international law. Customary international law is a body
of unwritten rules and principles that are derived from the practices of
states, international organizations, and other entities in international
relations. Customary international law is not codified in treaties or other
written instruments and is based on the idea that states, through their
actions and practices, have created a body of law that governs their
behavior. Custom is an important source of international law because it
provides an independent and reliable source of law that is not dependent
on the consent of states. It also allows states to develop international law
that is tailored to their circumstances and interests, while also providing a
framework for states to cooperate on matters of international law.

HYPOTHESIS:

Custom is an important source of international law, providing a

foundation for the development of legal principles and practices
applicable to international relations.

RESEARCH QUESTIONS:

1. How has custom been established as a source of international law?

2. What are the advantages of custom as a source of international law?

3. What are the limitations of custom as a source of international law?

4. How has the concept of custom evolved over time in international law?

SCOPE OF RESEARCH:

The scope of research in Custom as a source of International Law is vast

and ever-evolving. Research in this area can explore the legal principles
and effects of custom on international law, the role of custom in adapting
to the changing world order, the influence of custom on the development
of customary international law, and the development of international
tribunals that rely on custom as a source of international law.
Additionally, research in this area can explore the intersection of
customary international law with other sources of international law, such
as treaties and general principles of law, and the role of custom in the
implementation and enforcement of international law. Finally, research in
this area can examine the role of custom in setting the standards of
international behaviour and the role of custom in resolving disputes
between states.

METHODOLOGY:

Doctrinal research methodology is a way of studying international law

that focuses on the process of creating, interpreting, and applying legal
norms. This method of studying international law is based on the
examination of legal documents, including treaties, court decisions, and
other authoritative sources of law. It is also known as the “black letter”
approach, because it is concerned with the legal texts themselves, and
not with any particular interpretation or application of them. The
doctrinal research approach is the most common way of studying
international law, and it is used to answer questions of legal
interpretation, application, and policy.

The doctrinal approach to studying custom as a source of international

law is based on the premise that custom is a form of law that is created
through practice and accepted by states. This approach focuses on the
legal and factual evidence of the formation and application of custom,
including state practice and opinio juris. It also looks at the legal sources
that express custom, such as treaties and court decisions, as well as
academic writings, to further understand the formation and application
of custom.
The doctrinal approach to studying custom is often used to analyse
questions related to the formation of custom, such as what constitutes
sufficient state practice and opinion juris. It is also used to examine
questions related to the application of custom, such as how custom
interacts with other sources of international law and how custom can be
used to interpret and supplement treaties.

The doctrinal approach to studying custom as a source of international

law is a useful tool for understanding and interpreting the law, but it does
have some limitations. It does not take into account the social and
political context in which custom develops, or the practical implications of
the law. Furthermore, this approach does not always provide an
adequate account of the development and evolution of custom, which
can be difficult to trace in the absence of clear legal texts.

Despite its limitations, the doctrinal approach to studying custom is still a

valuable tool for understanding and interpreting international law, since
it provides an important base of legal knowledge to which other methods
of studying custom can be added. It is also a useful tool for understanding
the formation and application of custom in a legal context.

INTRODUCTION:

International Law is comprehensive in nature and due to that it is an

amalgamation of various sources, there exists no single system of laws
which can interpret and extend the law but international law still exists
and is ascertainable.

There are ‘sources’ available from which the rules of international law
may be extracted and analysed. According to Lawrence, if we take the
source of law which has all the authority required to give it binding force,
then in respect of International Law there is one source of law and that is
the consent of Nations. This consent may be either tacit (custom) or
express (treaties).

Major sources which form the conventional source of International law

includes the International Convention and Treaties. Sources of
International Law can be bifurcated into primary and secondary sources
which are explained below.

1. How has custom been established as a source of international

law?
CUSTOM AS SOURCE OF INTERNATIONAL LAW:

The original and the oldest sources Law is known as Custom. The rules of
customary International Law involved a long historical process which
gained recognition by the entire community. The presence of customary
rules can be deduced from state practice and behaviour because it is not
a written source of law. A rule of customary law is said to have two
elements:

First, there must be widespread and consistent State practice.

Secondly, there has to be “opinion Juris”, a Latin term which means a

legal obligation to believe in the existence of such law

Convention as a source of International Law

Treaties and conventions are one of the most important sources of

International Law. These conventions can be multilateral or bilateral.
Multilateral conventions relate to the treaties which formulate the
universal or general application of the law. On the other hand, bilateral
conventions are those which is formed exclusively by two states to deal
with a particular matter concerning these states.

Vienna Convention on the Law of Treaty 1969, the codified law for
contracting treaties, gives the definition, “A treaty is an agreement
whereby two or more states establish or seek to establish a relationship
between them governed by international law.” Treaties act as a direct
source of rights and obligations for the states, they codify the existing
customary source of law.

General Principle of International Law

Most modern jurists accept general principles of law as common to all
national legal systems, in so far as they are applicable to the relations of
States. There are fewer decided cases in international law than in a
municipal system and no method of legislating to provide rules to govern
new situations. It is for such a reason that the provision of ‘the general
principles of law recognized by civilized nations’ and was inserted
into article 38 as a source of law.

Some of the examples of General principles include:

 The rule of res judicata which has been affirmed by the court in
the case of Genocide Convention Bosnia and Herzegovina v.
Serbia and Montenegro,
 The rules of pacta sunt servanda made applicable,
 Reparation must be made for damage caused by the fault,
 The right of self-defence for the individual against attack on his
person, family, or community against a clear and present danger,
 For one’s own cause no one can be a judge and that the judge
must hear both sides.

Secondary source (Evidence of International law)

Article 38(1)(d) forms part of the material source of International Law

also known as the secondary source. It states that judicial decisions and
the teachings of the most highly qualified publicists of the various nations
also help in guiding the formation of international law, however they are
not binding but merely advisory in nature.

Judicial Decision

Under this, the court is authorised to apply previous decisions of the

court which are also known as an evidence of international law, however,
it is subject to the exception stated under Article 59 of the statute which
states that the previous decision of the court can only guide the court, it
is not binding on the court.
This article provides the court with a rule that it is not to be bounded by
precedents but recourse can still be made by the court to its past
decision’s res judicata and advisory opinion to substantiate current case
as authoritative evidence of legal position.

ICJ plays a major role in the law-making process through its advisory
opinions, case laws and judge’s rule. One of the major examples of this
includes the principle of the prohibition against the use or threat of use of
force laid down by the court in the case of Nicaragua vs. USA which is
now considered as a part of Customary International Law.

Juristic writings and teachings

Other major parts of this source also include the ‘teachings of the highly
qualified writers such as Gentile, Grotius, and Vattel who were considered
as the supreme authorities of the international law in the 16th to 18th
Centuries.

Other sources of International Law

International law is not based on a set of rules and therefore article 38 is

not exhaustive. There are various other factors that develop the usage of
International Law which include declarations of Security Council
resolutions, declarations, and recommendations adopted by the UN
General Assembly, International morality and equity, etc.

The world is constantly evolving and the problems are becoming more
complex, the resolutions and declarations adopted by assembly act as an
inevitable impact upon the direction adopted by modern international
law. The way states vote in the General Assembly and the explanations
given upon such occasions constitute evidence of state practice and state
understanding as to the law.

2. What are the advantages of custom as a source of

international law?

Customary international law is a source of international law that arises

from the consistent and widespread practice of states, accompanied by a
sense of legal obligation. The advantages of custom as a source of
international law include:

Flexibility: Customary international law can adapt and change over time
to reflect changing circumstances and new developments in the
international community.

Legitimacy: Customary international law has a strong sense of legitimacy,

as it reflects the actual practices and beliefs of the international
community.

Wide acceptance: Customary international law is widely accepted by

states, as it reflects the practices of the majority of states in the
international community.

Clarity: Customary international law is often clear and well-established,

as it is based on consistent and widespread state practice.

Filling gaps in other sources of international law: Customary

international law can provide a source of law in areas where other
sources of international law may be lacking.

3. What are the limitations of custom as a source of

international law?

Customary international law, while significant, has its limitations.

One limitation is the challenge of identifying customary practices,
as it requires consistent and general state practice accompanied
by a belief that such practice is legally required (opinion juris).
Additionally, cultural diversity and evolving state behavior make it
difficult to establish uniform customary norms. The lack of a
centralized enforcement mechanism can also weaken the efficacy
of customary law, as compliance relies on the goodwill of states.

Customary international law, while significant, has limitations.

One limitation is its subjective nature, as identifying customary
practices can be challenging. It may not adequately address
rapidly evolving global issues or account for diverse cultural
perspectives. Enforcement is another challenge, as there is no
centralized authority to ensure compliance with customary norms.
Moreover, conflicting state practices can create uncertainty about
the existence or content of a customary rule.

4. How has the concept of custom evolved over time in

international law?

The development of IO can be traced from the need for

establishing the psychological notion of world government. It was
only in the 19th-century major IO’s emerged before that there
were smaller councils like the Hanseatic League or the Swiss
Confederation and the United Provinces of the Netherlands etc.

Embassies establishing bilateral needs were not sufficient and

adequate to solve problems that arose between more than two
states, there was a need to find a way so that interest of all the
states can be represented so an International conference of all the
representatives from several states was organized which came to
be known as the principal originator IO namely Peace of
Westphalia in 1648, which ended the thirty-year religious conflict
of Central Europe and formally established the modern secular
nation-state arrangement of European politics.

Till the First World War, the major issues were sought through
conferences, for instance, in 1815 congress of Vienna marked the
first systematic attempt to regulate international affairs by means
of regular international conferences.

With the continuous evolution of the society, it was noticed that

an efficient body of IO can be established, and the League of
Nations was the first international organization which was
designed not just to organization operation between states in
 areas which some have referred to as ‘low politics’, such as
transport and communication, or the more mundane aspects.
However, after World War II, the league of the nation was
disbanded due to its inefficiency and the United Nations was
founded in 1919.

CONCLUSION:

International law has emerged through various sources which have

been codified in Article 38 of the ICJ statute which identifies customs,
treaties and general principles as formal sources of International
Law. However, the Judicial decision is given by the world court also
acts as advisory opinions in guiding the development of International
law.

Various philosophers and juristic theorists have enlightened the

philosophy of International law through their theories and principles
as well. International Law helps in Identifying states as an entity of
the world community through various modes so as to provide them
with rights and duties.

REFERENCE:

1. Johann Caspar Bluntschli, The Theory of the State, trans. J. J. Lalor

(London: Macmillan & Co., 1885), p. 44.

2. Vienna Convention on the Law of Treaties, May 23, 1969, art. 38, 1155
U.N.T.S. 331.

3. Restatement (Third) of the Foreign Relations Law of the United States §

102 (1987).

4. Hugo Grotius, the Rights of War and Peace, ed. Richard Tuck
(Indianapolis: Liberty Fund, 2005), p. 202.

5. Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge

University Press, 1991), p. 65.