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Introductory remarks






 

6.1.1 Traditional Law

 

· Treaties and Custom are main methods for creating legally binding rules, both responded to need of not imposing obligations on States that did not wish to be bound by them.

· Treaties, being applicable only to contracting parties, reflected the individualism prevailing in international community.

· Custom, although binding on all members of the community, also rests on consent – customary rules resulted from the convergence of will of all States (see Lotus). It was felt that any member could object to the applicability of a customary rule.

 

· Both treaties and custom possessed equal rank of status - reflects unfettered freedom of states.

Ш Therefore, a later law repealed an earlier one; a later law, general in character, does not derogate from an earlier one, which is special in character; a special law prevails over a general law.

 

· Both treaties and norms could regulate any subject matter, and in any manner the parties chose.

· Thus, two or more states could elect to derogate from customary international law, and a new custom supplant an existing treaty.

· International rules did not define in detail the processes by which a treaty came into being, because states wished to be as free as possible in their dealings.

 

6.1.2 New Trends

 

1. Because of emergence of a huge number of states in 20th century with very different values, it was necessary to establish some rules for regulating treaties (establishment, interpretation, etc.)

а Vienna Convention on the Law of Treaties, 1969

а Vienna Convention on the Law of Treaties between States and International Organizations, 1989

 

2. A set of fundamental values has emerged, that all states agree to in terms of their content and crucial importance.

  • A new category of general international rules has come into being – jus cogens. They place restraints on the otherwise unfettered freedom of States.
  • They establish a hierarchy within body of international law – States may not derogate from these peremptory norms through treaties or customary rules.
  • Therefore, jus cogens superior to all other rules of international law.

 

3. Now questionable whether states object to the formation of customary rule and thus remain outside it. Rise in community pressure on individual states.

 


Custom

 

6.2.1 General

 

Statute of the ICJ, Art. 38.1 – lists among the sources of law upon which the Court can draw: “International custom, as evidence of a general practice accepted as law.”

 

Custom made up two elements –

1) General practice (usus, diuturnitas)

2) Conviction that such practice reflects, or amounts to, law (opinio juris) or is required by social, economic, or political exigencies (opinio necessitatis)

 

Custom vs. Treaties

· not normally a deliberate law-making process. When states participate in norm-setting process, they do not act for primary purpose of laying down international rules. Their primary concern is to safeguard their economic, social or political interests. Unconscious and unintentional law-making (Kelsen)

· rules are binding on all members of world community, whereas treaties only bind those that adhere to them

 

6.2.2 Elements of Custom

 

State practice (usus, diuturnitas)

· Epitomized in ICJ, North Sea Continental Shelf cases: “State practice should be both extensive and virtually uniform.”

· Nicaragua – instances of non-compliance with a rule do not mean that the rule has not come into being. State practice need not be absolutely uniform, individual deviations do not necessarily lead to conclusion that no rule has crystallized. Deviations can actually prove that there is a customary rule, because the State or others feel that there has been a breach of something

 

State conviction (opinio juris or opinio necessitates):

· Practice – evolves among certain States under the impulse of economic, political or military demands. May be regarded as being imposed by these external needs. (opinio necessitatis)

· If this practice does not encounter strong and consistent opposition from other States, but is increasingly accepted or acquiesced to, a customary rule gradually crystallizes

· At this later stage, it may be held that the practice is dictated by international law (opinio juris)

· Now states begin to believe that they must conform to the practice not because economic, political or military considerations demand it, but because an international rule requires them to.

· Thus, precise moment that a customary rule appears / is born is imprecise – it’s a gradual process over time, culminating in a feeling that states have that they are conforming to a legal obligation.

  • Rules on continental shelf – an example of nascent customary rules based on opinio necessitatis that then turned into opinio juris.

 

· Where there are conflicting interests about the economic or political interests, the usus element may become most importance in the formation of the customary rule. (e.g. important in formation of rules on continental shelf, not so important on use of outer of space, as there wasn’t much use!)

· In other instances, opinio is more important – because rule is based on evident and rational grounds (e.g. rules on prohibiting slavery, genocide, and racial discrimination).

6.2.3 The role of usus and opinio in international humanitarian law

 

Usus and opinio play a different role in humanitarian law of armed conflict, due to Martens Clause, adopted in 1899 at Hague Peace Conference, listed 3 main elements of custom:

“Until a more complete code of the laws of war has been issued, the High Contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.”

 

Was taken up in 1949 Geneva Conventions and the First Additional Protocol 1977, and has been referred to by the ICJ in Legality of the Threat or Use of Nuclear Weapons.

 

Clause puts ‘laws of humanity’ and ‘dictates of public conscience’ on same footing as ‘usage of states.’ Therefore state practice may not need to apply to formation of a principle or rule based on laws of humanity or public conscience.

а usus may be less important regarding international humanitarian law than opinio juris/necessitates.

 

· Expression of legal views by a number of states and other international players about a principle or rule may be enough to lead to formation of a customary rule.

· This makes sense, because otherwise customary rules on humanitarian issues could only be created after state practice of atrocity and global rejection of such practice – law here being used as an antidote to destructiveness of war, rather than clean-up tool.

 

6.2.4 Do customary rules need, at their birth, the support of all states?

 

· Traditional view was the express or tacit consent of all States was required for a rule to emerge in world community.

· No longer seen as necessary today.

· Once customary rules gradually crystallize, they do not need to be supported or consent to by all states.

· It is enough for a majority of states to engage in consistent practice corresponding with the rule, and for those states to be aware that the rule is needed.

· States shall be bound even if some of them have been indifferent, relatively indifferent, or have refrained from expressing either assent or opposition to it.

 

6.2.5 Objection by states to the formation of a customary rule

 

Can a state that objects to the formation of a customary rule dissociate itself from such a rule and thus remain free from the obligations it imposes once it has been consolidated as an international rule? Can states opt out?

 

· Custom at present no longer maintains its original ‘consensual’ features as in classical theory

· Current community-oriented configuration of international relations would make it hard for a state not to succumb to pressure of vast majority of world community

· There is no firm support in State practice and international case law for a rule that allows a persistent objector to opt out.

 

Ш Therefore, a State is not entitled to claim that it is not bound by a new customary rule on the grounds that it has consistently objected to it.

 

· However, strong opposition by Major Powers can slow down development or formation of a new rule.

· Some sort of law imposing obligations on those who were not willing to be bound or prepared to be bound is gradually emerging.

 

6.2.6 The present role of custom

 

After WWII, custom increasingly lost ground:

· Existing customary rules were eroded more and more by fresh practice and resort to custom to regulate new matters became relatively rare

а due to growing assertiveness of socialist and developing countries, who felt that custom was associated with West’s power over international world order, and wanted legal change through treaty-making.

· Membership of the world community is much larger today than in heyday of customary law, and members of the world community are deeply divided. Makes it hard for general rules to gain support from such a diverse group of states

 

· Nevertheless, existence of international organizations facilitates and speed up custom-creating process, at least in areas where States do want those rules to come into being (e.g. UN).

· Consent is the common decision-making process, which helps lead states to common denominator principles. This evolves into normative core, which can then become basis for drafting of treaties or evolution of customary rules.

 

Custom is thus not on the wane everywhere. It remains significant in:

· Areas of emerging economic interest – e.g. those relating to law of sea, continental shelf, economic zone – because solutions to specific issues propounded by one or more states may eventually come to satisfy needs of other states

· Areas of major political and institutional conflicts – where new needs in international community give rise to strong disagreements between states, therefore may be very hard to regulate with treaties (e.g. rules on customary modification of art. 27.3 of UN Charter, SC decision can now be taken even when one or more permanent members is absent, contrary to text of article).

· Updating and elaboration of customary law – if newly independent States consider customary law to be more or less acceptable and in need revision or clarification. E.g. laws on warfare, law of treaties. Some customary rules have been updated or revised and consecrated in treaties, even though these are substantially customary laws.

 


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