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.
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