Friday, 6 April 2012


In light of the provisions of Article 38(1) (b) of the ICJ statute, examine the approach that the International Court uses to determine and ascertain the existence of a custom as a source of International Law.
Approach
Ø  Define International law.
Ø  Define Custom
Ø  Quote the provision in as far as it describes custom
Ø  Examine the approach that the courts use to determine a custom.
Ø  Conclusion

Definition of International Law
International law is the legal system that governs the relationship between states and other recognized subjects and between the recognized subjects themselves.[1] It should be noted that International law is enforced by the International Court of Justice established by the United Nations Charter[2] and also provided for under the ICJ Statute.[3]

Definition of custom
A custom is the authentic expression of the needs of the community at any given time.[4] It is described as the constant and uniform usage accepted as law[5] and viewed as the evidence of a general practice accepted as law.[6] It should be noted that Custom in International law differs from custom in our municipal law and it may mean long established tradition of a society. The idea lies behind a general recognition among states of a certain practice as obligatory.[7]

Basic elements of a Custom
Article 38(1) (b) sets forth two basic elements of a custom, the first one being material facts (actual behaviour of the states) and the other being psychological or subjective belief that such a behaviour is law (Opinio Juris).[8] These elements were also seen in the legality of nuclear weapons case where the court confirmed that the substance of customary rules is to be found primarily in the actual practice and opinio juris of the states.
It should be noted that these elements are the objective and subjective elements of a custom.[9] Both the elements should apply alongside each other because if one is left out, a custom cannot be regarded as law but it can only remain as a moral obligation which has no force of law.


Proof of a custom
In principle, the ICJ is presumed to know the law and may apply a custom even if it has not been expressly given.
In practice the proponent of a custom has a burden of proof the nature of which will vary according to the subject matter and the form of the pleadings.[10]
In the lotus case (Turkey V France)[11] therefore the courts spoke of the plaintiff’s burden in respect of a general custom.
Hence where a local or regional custom is alleged, the proponent must prove that this custom is established in such a manner as to have become binding on the other party.
The International court will determine and ascertain the existence of a custom as a source of international law basing on state practice which entails uniformity and consistence of practice, generality of practice, duration and Opinio Juris.[12]

Approach of the courts
As already noted above, the courts use basically the approach of state practice which entails all the key elements that help them determine and ascertain the existence of a custom as a source of international law. Below is a detailed explanation of how the courts use each of these elements as a fore mentioned as to include uniformity and consistence of the practice generality of practice, duration and opinio juris to examine and ascertain its existence.

State practice (uniformity of consistency of practice)
Courts have gone ahead to say that the state practice alleged should be substantially constant and uniform determination of which is solely dependent on the facts of each case. This can be viewed and evidenced by the state’s acts and attitudes in International relationship with each other. On the other hand the uniformity required need not be complete but substantial[13] and this explains why the court refused to accept the existence of a 10 mile rule for bays in the Fisheries case (United Kingdom V Norway).[14] However, the leading case below this is the Asylum case (Columbia V Peru)[15] in which Columbia had granted Asylum to a Peruvian national in its embassy in Lima, Peru. The Peruvian national Victor Haga De la Tore was one of the leaders of a rebellion in Peru in 1948. After the collapse of the rebellion Haga fled to the Columbian embassy in Lima for Asylum. Columbia granted him asylum and sought safe passage for him out of Peru. The Peruvian government refused to grant their request, instituted criminal charges against Haga De la Tore and wanted him surrendered to face this charges.
Columbia argued that under International law in general and some treaty provisions, she was competent to qualify the offence for purposes of the said asylum. To determine whether such a custom existed court examined the various evidence pertaining to state practice on diplomatic asylum cases in the region. The court declined to find a custom relating to diplomatic asylum stating; the party which relies on a custom must prove that this custom is established in such a manner that it has become binding on the other party.
It must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the states in question and that this usage is the expression of a right appertaining to the state granting asylum and a duty incumbent on the territorial state.[16]
Therefore this follows from article 38(1) (b)[17] which refers to international custom “as evidence of a general practice accepted as law.”
The facts brought to the knowledge of court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on different occasions; there has been so much inconsistency in the rapid succession of conventions on asylum ratified by some states and rejected by others and the practice has been so much influenced by considerations of political expediency in the various cases that it is not possible to discern in all this any constant and uniform usage, accepted as law with regard to the alleged rule.[18] From the above case therefore, basing on the decision taken by the court concerning uniformity and consistence, if it is found that the party’s evidence (custom) is inconsistent and non uniform, the International courts will not recognize it as international customary law because it will not have met the requirement of state practice as its usage among states is inconsistent and not uniform. The International court would therefore not determine or even ascertain it as source of international law in light of article 38(1) (b) which concentrates on evidence of such general practice.[19]

Duration of practice
Under duration, long practice is not necessary but what is important is that the practice should be both general and consistent in nature. If proved this means that if for a short period of time a practice is both general and consistent, then a customary rule can develop. For instance the rules relating to air space and the continental shelf have emerged from fairly quick maturing of practice.[20] This element was clearly explained in the case of North Sea Continental SHELF (federal republic of germany v denmark and the netherlands);[21] where a number of bilateral agreements had been made drawing lateral or median lines delimiting the North Sea Continental shelves of adjacent and opposite states including two lateral line agreements between the Netherlands and the federal Republic of Germany (1964) and Denmark and the federal republic of Germany (1965). Each of these two agreements however did no more than draw a dividing line for a short distance from the coast beginning at the point which the land boundary of the two states concerned was located. Court inter alia was called upon to determine whether article 6 of the 1958 Geneva Convention which had been in force for only three years had created a rule of customary international law. Court held that although the passage of only a short period of time is not necessarily a bar to the formation of a new rule of customary law there is no particular or specific length of time during which a practice must exist. The most important thing is that it must be followed long enough to show that the other requirements of a custom are met.[22]
From the above case therefore, it is clear that international court does not look at how long the custom has existed provided it is general and consistent in nature. The length of time required to establish a rule of custom any international law will depend upon other factors pertinent to the alleged rule. The approach courts take therefore is as regards the period in question, short though it may be; their determinant is the state practice including that of the state whose interests are specifically affected. This should have been both extensive and virtually uniform in a sense of the provision invoked in this particular case in light of article 38(1) (b).[23]
Generality of Practice
This is another approach that the international court uses to determine and ascertain the existence of a particular custom as a source of international law.
This aspect complements that of consistency. It should be noted that the practice should be general but it does not mean that it should be universal.
This means that a custom can develop between only two states and not the whole world and what matters is whether such custom is general among the states in question.[24] This aspect was clearly discussed in the case of Anglo- Norwegian Fisheries[25] where court was called upon to determine whether the lines laid down in the 1935 Norwegian Fisheries Zone were or were not drawn in accordance with international law. The facts in this case were that Norwegians had been suffering incursions into their fishing zone by the British fishermen and they sought by decree to delimit their fishing zone. UK argued that this decree was contrary to international law because the delimitation exceeded the 10 miles rule that existed in customary international law. Finally the court held that although certain states have adopted the 10 mile rule, others have adopted a different length and consequently the 10 mile rule has not acquired the authority of a general rule of international law. However in later cases it has been found that what court accepted as a rule has been taken as generally accepted for instance in the Fisheries Jurisdiction case (United Kingdom V Iceland).[26] In this case the court referred to the extension of the fishing zone to a 12 mile limit which appears now to be generally accepted and due to the increasing and wide spread acceptance of the concept of preferential rights of coastal states in a situation of special dependence on coastal fisheries.[27] It is therefore clear that the international court is not ready to declare a particular custom as international law if it is not generally practiced by other states. Such other states can adopt a different belief as seen in the above cases hence where all states in question adopt that particular rule, then it can be seen as a custom. The international court therefore also uses the approach of the generality of practice to determine and ascertain the existence of any custom as argued in the above cases and also evidenced in the description attached to or attributed to custom by Article 38(1) (b)[28] of the statute.                           

Opinio Juris
Opinio Juris sive necessitates was first formulated by the French writer Francis Geny as an attempt to differentiate legal custom from mere social usage.[29]
Once one has established the existence of a specified usage, it becomes necessary to consider how the state views its own behaviour. Is it to be regarded as a moral, political or legal act or statement? Opinion Juris thus belief that state activity is legally obligatory, is the factor which forms the usage into a custom and renders it part of the rules of International law[30]. States will behave in a certain way because they are convinced it is binding upon them to do so. The permanent court of International Justice expressed the point of view when it dealt with the Lotus case.[31] The issue at hand concerned a collision on the high seas (where International law applies) between the lotus (French ship) and Boz kourt a Turkish ship. Several people on the latter ship were drowned and Turkey alleged negligence by the French officer on watch.
When the lotus reached Istanbul, the French officer was arrested on the charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him.
The French in their arguments maintained that there existed a rule of customary law to the effect that the Frag state of the accused (France) had exclusive jurisdiction in such cases and that accordingly the national state of the victim (Turkey) was barred from trying him. To justify this, France referred to the absence of criminal cases by such states in similar situations and from this deduced facit consent in practice which therefore became a legal custom. The court however rejected this and declared that even if such a practice of absention from institution of criminal proceedings could be framed in fact, it would not amount to a custom.
It held that only if such absention were based on their (the states) being conscious of a duty to abstain would it be possible to speak of an international custom. Thus the essential ingredient of obligation was lacking and the practice remained a practice nothing more.

A similar approach occurred in the North Sea Continental Shelf Cases.[32] In the general process of delimiting the continental shelf the North Sea pursuance of oil and gas exploration lines were drawn dividing the whole area into national sphere. However West Germany could not agree with either Denmark or Holland over the respective boundaries and the matter came before the ICJ. Article 6 of the Geneva convention on the continental shelf of 1958 provided that where agreement could not be reached and unless special circumstances justified a different approach the boundary line was to be determined in accordance with the principles of equidistance from the nearest points of baselines from which the breath of the territorial sea of each state is measured. This would mean a series of lines drawn at the point where Germany met Holland on the one side and Denmark on the other and projected outwards the North Sea. However, because Germany’s coastline was concave, such equidistant lines would converge and enclose at a relatively small triangle of the North Sea. The federal republic had signed but not ratified the 1958 Geneva Convention and therefore was not bound by its terms. The question thus was whether a case could be made out that the equidistance – special circumstance principle had been absorbed into customary law and was accordingly binding upon Germany.
The court concluded in the negative and held that the provision in the Geneva Convention did not reflect an already existing custom. “ State practice including that of states whose interests are specifically affected should have been both extensive and uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is invoked.”

Nicaragua Case (Nicaragua V United States) [33]
For a new customary rule to be formed not only must the acts concerned amount a settled practice but they must be accompanied by Opinio Juris Sive necessitatis. Either the states taking such action or other states in a position to react to it must have behaved so that their conduct is evidence of a belief that is this practice is rendered obligatory by the existence of a rule of law requiring it. The need of such a belief as the existence of a subjective element is implicit in the very notion of the Opinio Juris.

Proof of Opinio Juris
In proving the existence of Opinio Juris, increasing reference has been made to conduct with international organisations particularly with the UN.
The ICJ has in a number of cases utilized general assembly resolutions as conformity the existence of the Opinio Juris focusing on the content of the resolution or resolutions and the condition for adoption.
The key however, is the attitude taken by the states concerned whether as parties to particular treaty or as participants in the adoption of the UN resolution.[34] The court has referred to major codification conventions for the purpose and the work of the International Law Commission. In international law, Opinio Juris is the subjective element which is used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act.

When Opinio Juris exists and is consistent with the nearly all state practice, customary law emerges. Opinio Juris essentially means that states act in a compliance with the norm not merely out of convenience, habit, confidence or political expedience but rather out of legal obligation. This is however difficult to prove, in practice a variety of sources tend to be used to demonstrate the existence of Opinio Juris including evidence such as diplomatic correspondence. A classic example is the Paquette Haban [35]case decided by the United States Supreme Court in 1900 on the question whether small coastal fishing boats are immune from capture during war. Under customary in law, evidence for Opinio Juris included medieval English royal ordinances, agreements between European nations. Orders issued to the US Navy in early conflicts and opinion of legal treaties, writers and finally the context circumstances and manner in which state practice is carried out can also be used to infer the existence of Opinio Juris.

Conclusion,
In light with the provisions of Article 38(1) (b) of the ICJ statute, we realize that International Law is in fact a system of customary law upon which has been erected almost entirely with in the last two generations a super structure of conventional or treaty made law. This has been insinuated from the various qualifications that the ICJ uses to appreciate a given practice to be legally binding on the states that come to terms and form a consensus.      

Books used
1. Brownlie Ian, Principles of Public International Law, 5th Edition Oxford: Clarendon Press, 1998.
2. Malcolm Shaw, International Law, 6th Edition Cambridge.
3. Harris D.J, Cases and Materials in International Law, 6th Edition London: Sweet and Maxwell, 2004.

Statutes/Charters
1. The International Court of Justice (ICJ) Statute of 1945.
2. The United Nations (UN) Charter, 1945.


[1]. Ian Brownlie, Principles of Public International Law at pg.6
[2]. Article 92 of UN Charter
[3]. Article 1 of ICJ Statute
[4]. Ian Brownlie, Principles of Public International Law at pg.6
[5]. [1950] ICJ pg.266
[6]. Article 38(1) (b) of the ICJ Statute
[7]. Ian Brownlie, Principles of Public International Law at pg.6
[8]. Article 38(1) 0f the ICJ Statute
[9].   Ian Brownlie, Principles of Public International Law at pg.7
[10]. Harris D.J, Cases and Materials in International Law at pg.15  
[11]. [1929] PICJ at pg.10
[12]. Ian Brownlie, Principles of Public International Law at pg.7 
[13]. Ian Brownlie, Principles of Public International Law at pg.7 
[14]. [1951] ICJ at pg.116
[15]. [1950] ICJ at pg.266
[16]. Ian Brownlie, Principles of Public International Law at pg.7 
[17]. Article 38(1) (b) 0f the ICJ Statute
[18]. Columbia V Peru [1950] ICJ pg. 266
[19]. Ian Brownlie, Principles of Public International Law at pg.7 
[20]. Ibid
[21]. [1969] ICJ at pg.3
[22]. Ian Brownlie, Principles of Public International Law at pg.8
[23]. ICJ Statute
[24]. Ian Brownlie, Principles of Public International Law at pg.8
[25]. [1951] ICJ at pg.116
[26]. [1974] ICJ 3 at 23-26
[27]. Ian Brownlie, Principles of Public International Law at pg.8
[28]. ICJ Statute
[29]. Malcolm Shaw, International Law, 6th Edition at pg.72
[30]. Malcolm Shaw, International Law at pg.72
[31]. (1929) PCIJ Ser.A, No.10
[32]. [1969] ICJ Rep.3
[33]. [1986] ICJ Rep.6
[34]. Malcolm Shaw, International Law at pg. 75
[35]. 175 U.S 677 (1900)

“DESKTOP” INCOME GENERATING ACTIVITY FOR THE LAW FRATERNITY
Introduction
This is a proposal intended and meant to address the ideas and concepts of self employment that we as legal practitioners intend to implement as a form of elevating our social standards.  Publication of writings is our intended project which will cover a wide scope of legal practitioners, lawyers and the public.
The publication will range from case commentaries, textbooks, newsletters, paper presentation, journals to magazines. Through this, we intend to cover all areas in the legal fraternity and latest developments that are crucial before the public highlighting both institution of justice and its miscarriage. This is henceforth not pro-borno service but rather a service that is intended to benefit us economically and further educate and create employment for the public. With this, we shall be able to earn income beside our full time job by selling published materials to the different market.

NATURE OF THE PROJECT
The project is one which will encompass mostly lawyers and judges who are willing to take off their time to make write outs for the benefit of society and also as part time income for them (lawyers and judges).
Much as it seems limited to “learned friends”, in the process of production, other people will be involved for example editors, those concerned with publication and marketing. In the process, many individuals from the society will benefit too.
Objectives/Aims of the Project   
1. To generate income through the selling of various forms of publication as already stated above.
2. To create employment for the people through printing and writing to the Project.
3. To promote justice in the society through the peaceful tool of commentary on unjust laws and leaders in our society.
4. To fight corruption through carrying out civic education and through newsletters, commentaries and presentations.
5. To educate the society on law through publication of materials.
6. To impact a positive change in the way the society perceives law and the whole system of dispensing justice.
7. Human rights awareness as a key factor in development.
EXPECTATION
The lawyers’ income will increase hence improving their standards of living and the general public since employment opportunities in this activity are not limited to only lawyers. (Vendors, publishing companies etc).
This project is efficient for lawyers and judges since it is not physically engaging (desktop-income generating income activity) therefore contributors will be readily available.
Human rights will be upheld and promoted through the writings since expert opinions also give an insight into the freedom and rights of people.                                                                        
Employment opportunities will be created for vendors, marketers, suppliers and other persons who will be involved in the process hence improving lives of the whole public.
WRITINGS CONSIDERED
Different kinds of publication will be done in respect of the prevailing circumstances and will all serve different interests. These will include;
News Letters:  These will take a form like the news papers but will zero down to particular issues that transpired during the week hence it will be a weekly publication ( at the end of the week) and the essence is for public to read and get to know the legal opinion on very pertinent issues.
Text Books:  with the increasing number of institutions, there is need for availability of resources to enable effective teaching. Much as most lawyers have published text books on legal matters and other matters especially business, there is need to boost this hence this project will help those who want to publish their books and in return they will be able to get income out of it since there is ready market for such materials.
Case Commentaries:  Many cases have been decided by courts in Uganda and some have attracted public attention for example cases like Kato Kajubi, Tonku, Kiyinji, among others. There has been a major problem in the perception of either judgments or procedures of trial in these different cases and therefore case commentaries by prominent Judges and lawyers will help sort out public confusion and this connotes the idea of market. This will be additional income for the writers hence elevating their status.
Journals: of recent, journals have been highly recommended for research as they provide vital and relevant information. The key aspect in this is that there is always “a call for papers” where contributors are paid a certain agreed upon sum for the articles or notes they contribute to the journals. These can either be electronic or print. In most Universities in United Kingdom, it is a prerequisite for one to have been a part of a law Journal in order to be admitted for Post-graduate studies in law; with this, most lawyers will be more willing to contribute to journals to fulfill that obligation and at the same time earning some income from it.
Magazines:  these will feature activities that are both under the legal fraternity and the public at large. There will be a centre to receive submissions and at an agreed interval the magazine will be published and all contributors will be paid a certain amount of money. The public too will be interested in knowing the other side of lawyers hence market will be readily available.
START CAPITAL
  • Contributions from stake holders: The stake holders will contribute a certain agreeable amount to the project. This will be in terms of membership and subscription.
  • Through public lectures and launches, we can be able to raise money to support the IGA
  • Through aid (UN-HUMANITARIAN RIGHTS COMMISSION), with a good proposal to such a commission and others like UK-AID, we can be able to raise funds.
  • Partnerships with companies wishing to advertise in the magazines, journals, newsletters among others. These will contribute a certain percentage to the publication. Pertinent to this, we would partner with publishing companies like Law-Africa for a more friendly publication fee.
THE TARGET MARKET
Since these writings will be commercial, we envisage the following as the target market
·         General public to benefit from the publications.
·    Schools, institutions of higher learning, research institutions, and media houses, among others.
·      Imperative to note, the work of prominent judges and lawyers can be used as persuasive precedents for judges while deciding certain cases hence improve on the Judiciary a very important arm of Government.
Benefits/advantages of this project viz a’ viz others
v    Experience
Since this project zeros down onto publication of material that lawyers are well vast and conversant with, this will in the long run promote efficiency. It will be a form dispensing justice in the legal fraternity and public at large which will also be a source of income.

v  Efficiency
The legal profession tends to be so hectic and demanding hence with the employment of official publishers saves us the burden of all time active involvement in the editorial process as lawyers can contribute articles and their physical presence is not of essence.

v  Convenience
This is a desktop income generating activity, we are aware that the legal practitioners spend most of their time in chambers, court and firms attending to clients. This henceforth puts them at a disadvantage of engaging in specific activities say attend to a business that requires moving from their work place. Publication is an activity that suits the legal fraternity as it involves keeping around libraries that is typical of the legal profession.

v  Professionalism
Much as there are many commentaries and publications about the law that have been made by various categories of people the impact they have in the society is minimal. Readers tend to category desire coming from an informed point of view and this brings in the point of expertise. Hence as lawyers, we tend to print/ publish material that will be appreciated and cause a positive change in the society at large. 

John Michael Nkugwa UCU- Mukono
                             &
Junior Michael Aboneka UCU- Mukono