JAMIA MILLIA ISLAMIA

FACULTY OF LAW

LEGAL METHODS ASSIGNMENT

CUSTOM AS A SOURCE OF INTERNATIONAL LAW

SUBMITTED TO: - SUBMITTED BY:-

BHAVNA SHARMA AISHA ALI

B.A.LL.B (REG)

IIIrd SEM

2018-23

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 INTRODUCTION

In any primitive society certain rule of behavior emerges and prescribe what is permitted and
what is not. Such rules developed almost subconsciously within the group and even maintained
by the members of the group by social pressure and with the aid of various other more tangible
implements. They are not at least, in the early ages written down or codified, and survived
ultimately because of what can be called of aura of historical legitimacy. As community
develops it will modernize its code of behavior by the creation of legal machinery, such as courts
and legislature. Custom for this is how the original process can be described, remains and may
also continue to evolve. It is regarded as an authentic expression of the needs and values of the
community at any given time.

Until recent times, international law consisted of the most part of customary rules. These rules
had generally evolved after a long historical process culminating in their recognition by the
international community. International customs have been regarded as one of the most prominent
sources of international law for a long time. It is only in the modern period that the importance of
customs has suffered a setback as a result of large number of ‘law-making’ treaties. But treaties
are also the result of customs which are codified such as Vienna conventions on diplomatic
relations, consular relations and Law of treaties respectively by International Law Commission.
Yet, according to views, it still has significant role to play where international community
undergoes change in new areas untouched by treaties, judicial decisions or the writings of jurists.

Article 38 (b) of the Statute of International Court of Justice recognizes ‘International Custom,
as evidence of general practice accepted as law’, as one of the source of International law.

DIFFERENCE BETWEEN CUSTOM ANS USAGE

The terms ‘custom’ and ‘usage’ are often used interchangeably. But there is a clear technical
distinction between the two.

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Usage represents the twilight of custom. Custom begins where usage ends. Usage is an
international habit of action that has not yet received full legal attestation. Usage may be
conflicting, custom must be unified and self consistent. But when this usage receives the general
acceptance of recognition by the state in their relations with each other, there develops a
conception that such a habit or behavior has become right as well as obligation of the states and
in this way usage becomes the custom.

Viner’s Abridgement, referring to custom in English law, has the matter in a nutshell.

“A custom, in the intendment of law, is such a usage as hath obtained the force of a law.”

It is not necessary that the usage should always precede a custom. It is also not necessary that a
usage must always become a custom, in certain other cases it may not become.

In this connection Torsten Gihl has summarized his conclusions in the following words:-

I. In certain cases usage gives rise to the international customary law, in other cases it
does not. But there is no rule of international law, or indeed any rule at all, which
determines when usage shall give rise to custom.
II. Together with usage, there are number of other purely factual phenomenon, state
interests, powers, factors, general opinions, historical events etc., which in various
combinations contribute to the creation of international custom, and custom, can arise
even without any usage.
III. When a usage is combined with opino juris sive necessitates, a rule of customary law
exists, and it is probably justifiably to say that a usage reflects a customary law exists,
and it is probably justifiably to say that a usage reflects a customary rule if it is
connected with a practically universal opinion juris.
Thus when a general usage in international sphere, or state practice, is connected with
opino juris et necessitates international customary law exists. This is a statement
about a fact and as such almost a truism since a usage of this kind is a general practice
accepted as law by, definition a custom.

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 INGREDIENTS OR ELEMENTS OF CUSTOM

Following are the main ingredients of an international custom:-

I Long Duration- Long duration is generally said to be an essential ingredient of a custom. This
is particularly true of custom in municipal law. But, this not so true of customs in international
law. Article 38 of Statutes of the International Court of Justice directs the World Court to apply
‘International Custom, as evidence of a general practice accepted as law’. Emphasis is not given
on a practice of states accepting the practice concerned as law. Customs may have emerged in a
short duration.

II Uniformity and Consistency- The custom should also be uniform and consistent. In the
Asylum case1, the International Court of Justice observed that the rule invoked should be in
accordance with a constant and uniform usage practiced by the state in question, and this usage is
the expression of a right appertaining to the state granting asylum and a duty incumbent on the
territorial State. It may however be noted that complete uniformity is not necessary.
Nevertheless, there must be substantial uniformity.

III Generality of Practice- Although universality of practice is not necessary, the practice
should have been generally observed or repeated by numerous states.

IV Opino juris et necessitates- According to Article 38 of the Statute of the International Court
of Justice, International custom should be the evidence of general practice “accepted as law”. In
the North Sea Continental Shelf case2, the world Court observed, ‘ Although the passage of only
a short period of time is not necessarily, one of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely conventional rule an
indispensable requirement would be what within the period of question, short though it might be,
state practices, including that of states whose interest 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 show a general recognition that a rule of law or legal
obligation is involved.”

1
I.C.J. Rep. (1950), at pp. 276-277
2
I.C.J. Rep. (1961), p.3 at p. 43

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Thus, customary practice when it is general and consistent is not customary law an opino juris is
present, that is to say, unless the practice is recognized as being required by international law. It
is in this sense of legal obligation, as distinguished from motives of fairness, convenience, or
morality, that underlines customary law.

CUSTOMARY RULES CRYSTALLISE FROM USAGES OR PRACTICESWHICH

HAVE EVOLVED IN APPROXIMATELY THREE SETS OF CICUMSTANCES:

(a) Diplomatic relations between states. Thus acts or declaration by statesmen, opinion of
legal advisers to state governments, bilateral treaties, and now press releases or official
statements by government spokesmen may all constitute evidence of usages followed by
states. In this regard, both conduct and statements (written and oral) are on the same footing.
(b) Practice of international organs. The practice of international organs, again whether by
conduct or declarations, may lead to the development of customary rules of international law
concerning their status, or their powers or responsibilities. Thus in its Advisory Opinion
holding that the International Labor Organization had power to regulate internationally the
condition of labor of persons employed in agriculture, the Permanent Court of International
Justice founded its views to a certain extent on the practice of the organization.
(c) State Laws, decision of state courts, and state military or administrative practice. A
concurrence, although not a mere parallelism, of state laws or of judicial decisions of state
courts or of state practices may indicate so wide an adoption of similar rules as to suggest the
general recognition of a broad principle of law.

CONCLUSION

Although, in modern times, importance of custom has suffered a setback as a result of

large number of law making treaties, judge made laws etc., yet it still has importance in
the international community. According to views by various jurists, it still has significant
role to play in a community which is to undergo changes in new areas which is untouched
by any form of guiding force.

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BIBLIOGRAPHY

STATUTES

 Statute of International Court of Justice

BOOKS
 Dr. S.K. Kapoor, International Law (Central law Agency, Allahabad, 2016)
 Malcolm N. Shaw, International Law ( Cambridge university press, 2016)
 Abhimanyu Singh, Public International Law (Mahaveer Publication, 2017)