Custom As A Source of International Law

 

International custom : A source of International Law Article 38(1)(b) of the ICJ Statute refers to "international "international custom" as a source of international law (a)  state practice (b)  acceptance of the practice as obligatory or  or opinio juris sive necessitatis necessitatis (usually -  -  -  - 

abbreviated as opinio juris) consistent state practice lies in the form of legal obligations Treaties have gradually displaced much customary international law. This development is similar to the replacement of customary or common law by codified law in municipal legal settings But customary international law continues to play a significant role in international law. State Practice –  – 

- 

The contribution to state practices for the majority of states will be at meetings of international organisations, particularly the UN the UN General Assembly, by Assembly, by voting and otherwise expressing their view on matters under consideration.

- 

Practices of relativeIy powerful states – they got maximum opportunities of making contribution to State Practices by their deeds, because of their extensive international contacts and interests. State Practice must be common and consistent. rules of the jus cogens have a universal un iversal character and apply to all states, irrespective of their wishes Instant Custom – This concept is emerged in response to rapid changes in order to meet out the appropriate circumstances. In North Continental Shelf Cases, the ICJ has recognised that passage of a short period of time is not necessarily a bar to the formation of a new rule. Instant Custom is that which takes form with rapidity.

-  -  - 

Opinio Juris –  – acceptance of state practice as an obligation

Asylum Case (Colombia (Colombia v Peru) [1950] ICJ ICJ Rep 266 - In this case the ICJ has rejected rejected claims that a customary rule existed because of a lack of consistency in the practice brought to its attention Jus Cogens -  Jus cogens means "compelling law" or "strong law" - This is a principle of international law considered so fundamental that it overrides all other sources of international law, even the UN Charter including even the Charter of the United the United Nations.   Nations.

Rules of jus cogens –  – Eg .- the rules provides for prohibitions of internationally wrongful acts like wise war wise war crimes, crimes crimes, crimes against humanity, piracy, humanity, piracy, genocide,  genocide,   apartheid, slavery apartheid,  slavery and torture. and torture.  

 

Formation of Customs –  –  (a)Duration (b) Uniformity and Consistency (c) Generality of State Practice

Duration –  - 

Though under Municipal Laws system, Custom is required to be ancient and immemorial, but under International Law the custom may emerge in very short duration Eg.- (a) Customs relating to Sovereignty over Air Space , (b) Customs relating to Continental Shelf, i.e.- Submarine extesion of Coastal State Uniformity and Consistency Generality of Practice –  Types of Customs  – 

(a)  General Customs - Those Customs which which are generally generally binding on all the states eg.- rules of the law of treaties, rules of diplomatic intercourse, rules of the law of sea (b)  Particular Customs or Local Custom – those practices which have developed between two states. It is also called as Bilateral Custom. Custom Vs Usages –  – Starke – “Custom begins when the Usages ends” 

(a)  Usages are general practice which does not reflect a legal obligation, its violation is not an illegal act, rather it is discourteous act, eg.- priveleges to diplomatic agent. The Usages becomes Customs, when it recieves legal recognition. (b)  Usages represents represents the initial stage of custom custom i.e.- Custom begins when the the Usages becomes general (c)  Breach of Usages are discourteous act, while breach of Customs are illegal act and delinquent state becomes responsible towards the injured state. Custom Vs Treaties  – 

The Customs and Treaties are the methods for the creation of legally binding rules ever since the beginning of International community. One thing common to both is the reflection of consent, it does not imposes the obligation on the states which does not wish to bound by them. (a)  Custom is based on implied consent of States, While Treaties are based on expressed consent. (b)  Formation of Custom is a slow process, while formation of Treaty is a rapid process. (c)  Sometimes Customs are not precise, clear and adequate, While Treaties are always precise, clear and adequate.

 

  Important Cases  –  (1)  Asylum Case – Columbia Vs Peru – ICJ (2)  Right of passage over Indian Terrirtory Case – Portughal Vs. India (3)  Westrand Central Gold Mining Co. Ltd. Vs. King  – Kings Bench Decision in 1905 (4)  S.S. Lotus Case - PCIJ Asylum Case (Columbia Vs. Peru) – ICJ Reports, 1950, p.266 A political leader named Victor Haya De La Torre was accused of instigating a military rebellion in Peru. He was a Peruvian national and was granted Asylum in the Columbian Embassy at Lima. The Columbian government requested for safe passage to carry out Hya De La Torre to Columbia. But the Peruvian government refused to grant him safe passage.The granting of said Asylum was the subject of dispute in between Columbia and Peru and both the parties referred this matter to ICJ. In this case it was claimed by Columbia that local custom exists in Latin American States under which the Asylum granted to Haya De La Torre is as per law and it has the right to carry him to his territory and Peru is liable to provide safe passage. The Court declared that the party which relies on Customof this kind must prove that this Custom is established in such a manner that it has become binding on the other party. Two issues before the Court – (a)Whether Columbia unilaterally decide that the offence is a political crime – Held – in negative (b) Whether Peru is bound to afford the necessary measures to enable Haya De La Torre to leave the country in safety –  Held – in negative. But it was also held – that Peru failed to prove that Hya De La Torre is a common criminal. Actually – decision was given making basis the Havana Convention of 1928 on Asylum, as it was violated while granting granting Asylum to Haya De La Torre. Torre. Right of passage over Indian Terrirtory Case  – (Portughal Vs. India) – ICJ Reports,1960, p.6 This case deals with the question relating to right of Portughal to send its nationals and military through the Indian territory as under Treaty of 1779. Until 1954 Portughal possessed the right of passage through Indian territory which was in between Dadra – Nagar Haveli and Daman, subject to control and regulation by India. In July 1954, people of Dadra revolted against Portughese and this had affected the border area of India. Therefore India suspended the right of passage of Portughal through its territory. The matter was brought before the ICJ. ICJ upheld the right of Portughal to have passage through Indian territory.

 

Basis – The Treaty of 1779 is a valid treaty and there had existed a uniform and constant practice allowing free passage. Thus the practice was accepted as law by the parties and it had given rise to a right of Portughal and correlative obligation on India. Westrand Central Gold Mining Co. Ltd. Vs. King  – Kings Bench Decision in 1905 An International Custom can be recognised if it has received a general consent of the States and no State shall oppose it. In this case, a British Co. named as Westrand Gold Mining Co. was carrying on Mining activities of Gold in South Africa and in the course of its activities, two consignments of Gold were seized by South African authority. At that time it was the responsibility of S. African authority to return either the consignment or the money in lieu of that. Later on South Africa was conquered by Britain and it was argued that conquering state would return the consignment. Court rejected this plea taken by S. African authority. Held  – International Law does not impose any obligation on the conquering state to fulfil the obligation of conquered state. Such obligation under International Law is not the part of practice of State in general. S.S. Lotus Case In the year of 1926, a collision in High Sea occurs in between French Steamer Lotus and Turkish Steamer Bozkurt. As a result Turkish steamer destroyed, sunk and eight Turkish nationals who were on Board perished. When Lotus reached Istanbul, the official in charge of Lotus was arrested without giving any notice to French Consular office. He was tried and punished by Turkish court, even though there was objection about jurisdiction of Turkish court upon this matter. Later on the French official was released on Bail.By protest this matter was brought by France before PCIJ. It was pleaded by France that the matter decided earlier by the Turkish Court was the violation of International Law and the matter should have been brought before the French Court. PCIJ has ruled that hearing and conviction made by Turkish Court has not violated any principle of International law. Basis  –  The practice of State should be constant and uniform, while complete uniformity is not required, it should be substantial.