2. Article 38 of ICJ statute
• (a) International Conventions
• (b) International Customs
• (c) General Principles of law recognized
by civilized nations
• (d) Judicial decisions and teaching of
highly qualified publicists (subject to
Article 59)
3. Exclusive law creating
processes
International
Conventions
International
Customs
General
principles
•
•
-G. SchwanzenbergerBut this is not a hard and fast rule
Verification of alleged
rules
Judicial
Decisions
Academic
writing
4. Customary International Law
• CIL is considered as a dynamic
source of International law.
• Nature of IL system
• Lack of centralized government
organs
5. Elements of CIL
• Physical element
(State Practice)
• Mental element
(Opinio juris)
6. Different opinions on value of CIL
• It is too clumsy and slow-moving to
accommodate
the
evolution
of
international law any more. (W.
Friedmann) So it is not significant as a
source of law today.
• It is activated by the spontaneous
bahaviour and thus mirrors the
conteporary concerns of society.
8. Duration
• There is no rigid time element
• Depend upon the
circumstances of the case and
usage
• Does not the most important
component
9. Continuity and Repetition
• Asylum Case(Columbia v. Peru)
…that a customary rule must ‘in accordance
with a constant and uniform usage practiced by
the State in question’
10. Anglo-Norwegian Fisheries Case
• Some degree of uniformity
amongst state practices was
essential before custom could
come into existence.
http://www.worldcourts.com/icj/eng/decisions/
1951.12.18_fisheries.htm
11. North Sea Continental Shelf case
• Dispute between Germany, Holland and Demark.
• Delimitation of the continental shelf
• State practice had to be ‘both
extensive and virtually uniform
in the sense of the provision
invoked.’
http://www.icjcij.org/docket/index.php?sum=295&code=cs2&p1=3&p2=3&case=52&k=cc&
p3=5
12. Nicaragua v. US
• It was not necessary that the
practice in question had to be ‘in
absolutely rigorous conformity’
with the purported customary
rule
13. • In order to deduce the existence of customary
rules, the Court deems it sufficient that the
conduct of state should, in general, be
consistent with such rules, and that instances
of state conduct inconsistent with a given rule
should generally have been treated as
breaches of that rule, not as indications of the
recognition of a new rule
• ICJ Reports, 1986, p. 98; 76 ILR,p.432.
14. Can only few states create a custom?
• Yes
• They are intimately connected with the issue
in hand
Power
Wealth
special relationship with the
subject matter
16. • For a custom to be accepted and recognized it
must have the concurrence of the major
powers of that particular field
• Duration and generality takes second place
• Universality is not required
• Depending on the context some degree of
continuity must be maintained..
17. Whether failure to act create a custom
not to act?
• Legal obligation not to act
• Incapacity or unwillingness
18. Lotus case
PCIJ, series A, No.10,1927, p18
• ‘abstention
could only give rise
to the recognition of a custom if
it was based on a conscious duty
to abstain ’
20. How to find actual state practice?
• News papers
• Historical records
• Statements/speeches of governmental
authorities
• Official publications
• Memoirs of past leaders
• Official manuals
• Diplomatic interchanges
• Opinions of national legal advisors
• Comments made by governments on draft
international instruments
22. • …the French maintained that there are existed
a rule of customary law to the effect that the
flag state of the accused(France) had exclusive
jurisdiction in such cases and that accordingly
the national state of victim (Turkey) was
barred from trying him.
• Justifications:
absence of previous criminal prosecutions by
such states in similar situations
23. • Held:
‘only
if such abstention were
based on their [the state] being
conscious of a duty to abstain
would it be possible to speak of an
international custom. ’
25. • ‘… state practice, including that of states
whose interests are specially affected, should
have been both extensive and virtually
uniform in the sense of the provision invoked,
and should moreover have occurred in such a
way as to a general recognition that a rule of
law or legal obligation is involved’
