Name – Pulkit Saraf

PRN – 17010223032
Div – C

Ans.1 The issue here is of Nomadic Pastoralism.

Nomadic pastoralism is a form of pastoralism when livestock are herded in order to find
fresh pastures on which to graze. But in the given situation, the main issue is here these
nomads cross the borders of the Country I and Country P which opens the gate to justify this
act as per the “International Law”. First of all, international law includes different sources
which gives rise to this concept. Here, the concept of customary international law is been
raised. This concept means customs to be treated as an international law. Customary rules of
international law are the rules which have been developed in a long process of historical
development. This must not be confused with “usages”. Only customs to be treated as
customary international law but not usages. Usage means those actions which are often
repeated by the States; custom on the other hand emerges, when a clear and continuous habit
of doing certain actions grows up under the aegis of the conviction that these actions are
right. Custom is such a usage as has the force of law. Usage is an international habit which
has yet not received the force of law.
Here in the given situation, if it is been proved that the practice of these nomads are merely
usage then the action of Country P can be held justifiable but if it is a custom then it is not
justifiable.
It is difficult to prove that the practice is a custom or usage. Also, it must be proven that
whether both the countries believe this practice(Pastoralism) as obligatory (opinio juris sive
necassitatis).
In many judgments of ICJ, the question of whether any action to be treated as custom or not
has been answered like the Right of Passage case (Portugal Vs. India) and in Nicaragua case,
the court discussed in detail the concept of custom and its applicability. The general
requirement or application which the court laid down in various judgements are-
The very existence of a custom must be proved. Here in the given situation we can say that
the practice of the nomads are followed from a very longer period of time. Also, there should
be consistency to be prove. Here, this practice is followed even when there was war between
these 2 countries. Also, there is no military intervention before the arrest of these nomads. So
we can say that the states had no problem from this practice and it is consistent too.
(i) It has to be established that the custom in question has had a continuous practice among a
large number of States, and that too consistently and without any break whatsoever or
without any variation in its practice. Here we can say that this practice is not followed in
many states but custom can be proved if both the countries in question follows it. So, here
both the countries follow this practice.
(ii) It is very difficult to prove opinio juris, a subjective element. For deducing this subjective
element, treaties etc. Here to prove this the state must consider the practice as an obligation.
So here we can say that this practice is been approved by both the countries from a very long
past. Even the state representatives had known about this but never stopped so that the
relation between the 2 countries must be strong. So it can be considered as an international
practice by the states to promote their relations.
(iii) The international custom must not run counter to the rules or principles embodied in law-
making treaties, otherwise it will be superseded by the latter. Here there is no such treaties by
the countries before as to restricting this practice. On the other hand, the representative had
promoted this.

So if we consider all these conditions then we can say that this practice by nomads can be
considered as a custom because both the countries never stopped this practice and there is no
such case before where these nomads had created any problem relating to national security,
Also, now also no weapons are found from those nomads. In Rights to passage case also the
court said that an act cannot be made custom if it affects national security but here there is no
such facts which can prove that the national security has been threatened.
So, keeping in mind that Country P considers Customary International law as its municipal
law so there is no requirement to prove the application of international law in the municipal
law of Country P. So, here Country P’s act of arrest can be made unjustifiable as the practice
of nomads can be treated as a custom under Customary international law.