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Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

The vast majority of the world's governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it.

Recognition of customary international law[edit]

The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "evidence of a general practice accepted as law."[1] This is generally determined through two factors: the general practice of states and what states have accepted as law.[2]

There are several different kinds of customary international laws recognized by states. Some customary international laws rise to the level of jus cogens through acceptance by the international community as non-derogate able rights, while other customary international law may simply be followed by a small group of states. States are typically bound by customary international law regardless of whether the states have codified these laws domestically or through treaties.

Jus cogens[edit]

See jus cogens.

A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. These norms rooted from Natural Law principles,[3] and any laws conflicting with it should be considered null and void.[4] Examples include various international crimes; a state which carries out or permits slavery, torture, genocide, war of aggression, or crimes against humanity is always violating customary international law.[5]

Jus cogens and customary international law are not interchangeable. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable.

Codification of international customary law[edit]

Some international customary laws have been codified through treaties and domestic laws, while others are recognized only as customary law.

The laws of war, also known as jus in bello, were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these conventions do not purport to govern all legal matters that may arise during war. Instead, Article 1(2) of Additional Protocol I dictates that customary international law governs legal matters concerning armed conflict not covered by other agreements.[6][7]

Silence as consent[edit]

Generally, sovereign nations must consent in order to be bound by a particular treaty or legal norm. However, international customary laws are norms that have become pervasive enough internationally that countries need not consent in order to be bound. In these cases, all that is needed is that the state has not objected to the law. However, states that object to customary international law before these laws may not be bound by them unless these laws are deemed to be jus cogens.

The International Court of Justice[edit]

The Statute of the International Court of Justice acknowledges the existence of customary international law in Article 38(1)(b), incorporated into the United Nations Charter by Article 92: "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply...international custom, as evidence of a general practice accepted as law."

Customary international law "... consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way."[8] It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of obligation (opinio juris); Acts must be taken by a significant number of States and not be rejected by a significant number of States."[9] A marker of customary international law is consensus among states exhibited both by widespread conduct and a discernible sense of obligation.

The International Court of Justice held in Nicaragua v. United States that the elements of an international customary law would be opinio juris (belief that an action was carried out by states due to a legal obligation) which is then proven by existing state practices.[10]

Bilateral versus multilateral customary international law[edit]

The recognition of different customary laws can range from simple bilateral recognition of customary laws to world-wide multilateral recognition. Regional customs can become customary international law in their respective regions, but do not become customary international law for nations outside the region. The existence of bilateral customary law was recognized by the International Court of Justice in the Right of Passage Over Indian Territory case between Portugal and India, in which the court found "no reason why long continued practice between the two states accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two states."[11]

Other customary international laws[edit]

Other examples accepted or claimed as customary international law include the principle of non-refoulement and immunity of visiting foreign heads of state. United Nations Security Council in 1993 adopted Geneva conventions as customary international law because since the time being it has transformed itself into customary international law. If any treaty or law has been called as customary international law then parties which has not ratified treaty will be bound to observe its provisions in good faith.

See also[edit]

References[edit]

  1. ^ "Statute of the International Court of Justice". Retrieved 30 May 2012. 
  2. ^ Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 5. Cambridge: Cambridge University Press.
  3. ^ Władysław Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M. Thouvenin (eds). 2006. The Fundamental Rules of the International Legal Order, pp. 83-98. Netherlands: Koninklijke Brill NV
  4. ^ Article 53 of the Vienna Conventions on the Law of Treaties (1969)
  5. ^ M. Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga Omnes, Law & Contemporary Problems, 59: 63-74
  6. ^ "Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)". 8 June 1977. Retrieved 30 May 2012. 
  7. ^ Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 6-7. Cambridge: Cambridge University Press.
  8. ^ Rosenne, Practice and Methods of International Law, p. 55.
  9. ^ http://internationallaw.uslegal.com/sources-of-international-law/customary-international-law/
  10. ^ Malcolm Shaw. 2008. International Law (Sixth Edition). New York: Cambridge University Press, pp. 72-93
  11. ^ http://www.worldcourts.com/icj/eng/decisions/1960.04.12_right_of_passage.htm

Bibliography[edit]

External links[edit]


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CounterPunch
Wed, 27 Aug 2014 09:52:30 -0700

Customary” international law is whatever one of these secret tribunals says it is. Environmental regulations, “buy local” laws or any other government action that a corporation claims will hurt its profits can be, and frequently are, ruled illegal by ...
 
The Hill (blog)
Tue, 26 Aug 2014 10:04:52 -0700

According to principle 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), which is generally thought to reflect customary international law on point, law enforcement personnel are generally ...
 
Intifada Palestine
Fri, 29 Aug 2014 15:52:30 -0700

According to the International Law Commission (ILC), the official UN body that codifies customary international law, “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally ...
 
Just Security
Fri, 29 Aug 2014 09:48:55 -0700

And yet, any authorization to use force in the face of an unfolding genocide would have to come from customary international law. Although the Genocide Convention, which enjoys 146 members including Iraq and Syria, clearly states that its object and ...

MWC News

MWC News
Wed, 27 Aug 2014 14:00:00 -0700

It is also established, both in national and customary international law, that courts and tribunals must develop a range of sentences which properly reflect the relative positions of different accused and their role in the offence in which they were ...

Tampabay.com

Tampabay.com
Fri, 29 Aug 2014 13:48:45 -0700

"That said, this is very unlikely to change, as it is both a matter of treaty law as well as customary international law today. There is not much appetite among states to alter the status quo." Our ruling. The Chemical Weapons Convention did outlaw the ...
 
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Wed, 20 Aug 2014 02:56:15 -0700

UCLA believes that “The US policy instigated in 2006 is violating universally recognized customary international law on numerous counts: failure to discriminate between military and civilian objects, indiscriminate attacks, extrajudicial executions ...
 
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Wed, 27 Aug 2014 11:56:15 -0700

Apotex also claimed that the United States adopted the Import Alert without due process, in violation of the customary international law minimum standard of treatment. The tribunal, by a majority, concluded that Apotex was barred from relitigating the ...
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