Custom as a source of international law

Once upon a time, major part of the international law consisted of customary rules, which are evolved through the practices and usages of the States and their recognition by the community of States. Thus, we can say that, custom has been the original source of international law.

However, in recent times, on account of existence of large number of international treaties between various States, the predominant position of custom as a source of international law is diminished.

International Court of Justice while dealing with the Colombian Peru Asylum case, observed that;

1. A party relying on custom must prove that, the alleged custom is binding on the other party; and
2. The customary rule relied upon is in accordance with the consent and uniform usage practiced by the State in question.

Thus, the custom has to be established like any other question of fact. A rule of customary law should be established by satisfactory evidence to the effect that, the rule is of such a nature and has been so widely and generally accepted that, it can hardly be supposed that any civilized State will repudiate it.

The customary rule may also develop out of law laid down in a municipal legislation or in a decision of court of law, when it receives recognition from other States. However, as to how much time a practice or usage takes before being recognized as custom depends upon the facts and circumstances of each case.

Note:

Usage is an international habit of actions that has not yet received full attention. When a usage becomes well established, it becomes Custom. Practice is the beginning of customary rules which may or may not be fully crystallize into custom.

What are the Sources of international law?

International law is the name of a body of rules which regulate the conduct of the States in their intercourse with one another. In other words, law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other.

Thus the question here is what are the sources of international law?

Article 38(1) of the Statute of the International Court of Justice directs the International Court of Justice to apply the following while rendering an award OR opinion in those cases which are brought before it;

1. International treaties
2. International custom, as evidence of a general practice accepted at law
3. General principles of law recognized by civilized States
4. Judicial decisions and teachings of most qualified publicists of various States as subsidiary means for determination of rules of law

Thus, we can broadly classify the Sources of international law as follows;

1. Custom as a source of international law
2. Treaties as a source of international law
3. Judicial decisions as a source of international law
4. Works of Jurists and Determination of the organs of international organizations as a source of international law General principles of law as a source of international law

Though most of the writers and thinkers of international law does not consider or include the “general principles of law” as a source of law. However, it should be noted that, even the International Court of Justice while rendering decisions in various cases came before it, took recourse to “general principles of law”.

Thus, even the general principles of law shall be treated as a source of international law.

Define the term international law

International law has been one of those area of law, where the judges and jurists widely differ even today. Positivists consider it as binding only with the consent of nations, while the Naturalists consider international law as a binding one.

Some of the notable definitions of International Law are as follows;

Kelson defined international law as the name of a body of rules which regulate the conduct of the States in their intercourse with one another.

Starke holds, international law is composed, for its greater part of the principles and rules of conduct which States themselves feel bound to observe, and, therefore, do commonly observe in their relations with each other, and which also includes:

1. The rules of law relating to the functioning of international organizations or institutions, their relations with each other, and their relations with States and individuals; and
2. Certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-State entities are the concern of international community.

Oppenheim opined that, the law of nations OR the term international law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other.

According to Blackstone, the law of nations is a system of rules, deducible by natural reasons and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent States, and the individuals belonging to each of such States.

Nature and importance of international law

According to positivist, international law is not a law. Austin opined that, international law is nothing but an international morality, whereas, Holland calls it a vanishing point of jurisprudence.

According to Positive School of Law, international law is not issued as a command of sovereign. International law is purely based on the consent of the States. Thus it cannot be called as a law. On the other side, according to the Natural Law School, international law is supreme law having originated from the God itself, and must be followed by the States.

On the other side, historical and sociological jurisprudence differ from the Austinian theory of law. They holds that, many communities were existed in the past without any formal legislative authority. Law is enforced by its observance.

The legally binding force of international law has been asserted and accepted over and over again in the various international conferences. Thus the United Nations was created by its Charter under international law.

Advantages of international law

1. International law governs not only a community of States but an organized international society.
2. International law is not exclusively juridical.
3. International law follows that, the traditional distinction between legal and political questions, between the domain of law and the domain of politics is considerably modified at the present time.
4. International law is not only concerned with the delimitation of the rights of the States but also harmonizing with them.
5. International law particularly takes into account the general interest.
6. International law also take into account all possible aspects of every case.
7. International law lays down, besides rights, obligations towards international society, and sometimes States are entitled to exercise certain rights only if they have complied with correlative duties.
8. International law adapts itself to the needs of international life and develops side by side with it.
9. International law condemns abus de droit (i.e., abuse of law).