QUESTION 3.

Trace the beginning of International practice.

International practice can be defined to mean a general practice accepted as law by

various states. The term has evolved from a customary rule of international law that is to say
international practice means a rule which the community of states has long since recognized as
the right rules of conduct having force of law1

Like all other rules of international law this rule is said to arise out of the consensus of
civilized nations of the world. Almost all the nations having agreed upon it, it becomes part of
the law of the nations and so binding upon them.2

The process of customary law formation being derived from the practice of the states
(International practice) and occasionally the practice of other legal persons is an ongoing
phenomena and its great advantage is that it enables international law develop in time with the
needs of time.3

International practice having formed part of international law has most justifiable claim to the
description. Under this, there is no universal agreement as to content of general international law.
The claim of custom to pre-eminence as international law rest on the fact that its rules apply to
all states and their binding force does not depend upon the specific consent of each individual
state to every rule. This was clearly illustrated in the North Sea Continental shelf
Case(Denmark/the Netherlands.v.Federal republic of Germany)4

Where the court recognized the principle that, a treaty provision could be a rule of the
customary international law (international practice) binding also on non-parties.

Customary element, that is to say, international practice has been a feature of the rules of
international law from antiquity to modern times.

In ancient Greece for instance the rules of war and peace were derived from common
usages observed by the Greek city states. Such usage or practices of the Greek city states were
crystallized by the process of generalization and unification of various usage separately
observed by the each city state5.Therefore from ancient Greek society the city states practice can
be traced as the beginning of international practices we have today.

Similarly the practice of Italian city states to send ambassadors to foreign capitals as
representatives in such foreign countries can be traced as the beginning of international practice
from which there developed diplomatic rules to protect those representatives as a result today
1
S.K Verma, An Introduction to Public International Law, p 24-25
2
Ibid
3
M. Dixon, Text book on International Law,p.28
4
(1969) ICJ
5
J.G Starke, Introduction to International Law, p 43
there are diplomatic rules guiding the relationship among states internationally. 6 Such practice
exists today as various nations do send their representatives in other nations, this being guided by
the Vienna Convention on Diplomatic Relations of 1961 where Article 29 and 30 provides for
different immunities enjoyed by the ambassadors.

Further, it can be noted that the Laws of Wars or jus in bellum can be traced back from the long-
standing practices of the early societies. For instance the practice of the Romans that could lead
to just wars like; violation of ambassadors, violation of Roman territory, violation of treaties and
unfriendly acts7. It is from those practices where today we have the various Laws of War for
example the Declaration of Paris, 1856, the Geneva Convention for the Amelioration of the
Condition of Wounded in Armies in the Field, 1864, the Hague Convention of 1899 and 1907,
the on the Prohibition of the Development, Production, Stockpilling and use of Chemical
Weapons and their Destruction, January 13, 1993 (entered into force on April 29, 1997).

The practices of nations regarding trade in early times can be traced as the beginning of
international practices because from the practices of such nations there developed rules which
could protect merchants from various states and could also prevent various nations from being
monopolized economically by other nations. Therefore from early international trade practices,
the rules of International Maritime Law have emerged.8

International practices of various states can be observed from various sources which are
explained in brief as follows;

Diplomatic correspondence; these are acts or declarations by statesmen, opinion of legal

advisers to state governments, bilateral treaties and press release or official statements by the
government spokesman9

Practices of international organizations; under this, their conduct or declarations or advisory

opinion in most cases lead to the development of international practice10

Decisions of International and National Courts are also regarded as sources of international
practice because authorities from them are mostly referred when deciding international matters
specifically when there are few or no or ambiguous available rules. This can be well illustrated in
Panquette Habana Case11

6
Ibid
7
R.K. Agrawal, Public International Law, P.34
8
Verma, Op. Cit p 2
9
Starke,Op.Cit, p.35
10
Ibid, p 36
11
(1900) 175 US 677
 Where the rules rely wanting to the exemption of fishing boats from the application of the law
of wars was established from the decision of state courts.

State legislations of various states are again considered as among the source of international
practice because legislations of the states specifically when published are referred to as evidence
of the development of International practice.12These are some of the International practices by
various states to mention but few.

However, for an International practice (custom) to be accepted as part of international

law, they should be of general practice, that is, should be generally practiced by the states in
question, again duration is an element to be considered and lastly there should be opinio juris (a
psychological element)for an international practice to mature.

The generality of the practice, uniformity, was discussed in Asylum

case(Columbia.v.Peru),13where the court in refusing to accept the Columbian contention that
such customary rule exist among the Latin American, stated that, the Columbian government
must prove that such customary rule (International practice) is in accordance with constant and
uniform usage practiced by states in question.

Duration is another aspect for an international practice to be considered as an International

Law. In law, there is no specific period required for a practice to amount to an International
Law provided that other elements like generality and consistency are proved .This was illustrated
in the in the North Sea Continental Shelf case14

Where the court on rejecting the contention that, a convention, that had part of the (general
practice) or customary law had only been in force for less than three years when the proceeding
were brought, the court stated that, for a practice to get a force law as a customary rule, the
precise length of time required for its existence is immaterial, it must be shown that other
requirements such as uniformity and consistency are also met.

Opinio juris et necessitates (psychological element) also plays a vital rule for a practice to be
considered as an International Law/custom specifically when the state practice establishing the
contended rule is lacking or ambiguous, it is the feeling of the state in question that, in acting to
such practice, they fulfill a legal obligation. In North Sea Continental Shelf Case (supra) it was
stated that, for a new customary rule to be formed, not only must the acts concerned amount to
a settled practice, but they must be accompanied by opinion juris et necessitatis, that must have
believed that this practice is rendered obligatory by the existence of rule of law requiring it.
Such need of a belief is what is known as opinio juris et necessitates.

12
Veima, Op Cit, p 3-4
13
ICJ Rep 1950 p 266
14
ICJ Rep 1969 p 3
 When regarding international practice, however, it can be argued generally that
particular non-binding instruments or documents or non-binding provisions in treaties form a
special category that may be termed as ‘soft law’. This terminology is meant to indicate that the
instrument or provision in question is not itself ‘law’, but its importance within the general
framework of International legal development is such that particular attention requires to be paid
to it15

The Helsinki Accord of 1975 is a prime example of a soft law. This Accord was not a
binding agreement but its influence in Central and Eastern Europe in emphasing the role and
importance of International human rights proved incalculable. Certain areas of International Law
have generated more ‘soft law’ in the sense of production of important but non binding
instruments than others. The practice and use of such documents, whether termed. For example,
recommendations, guidelines, codes of practice or standard are significant in signaling the
evolution and establishment of guidelines which ultimately may be converted into legally
binding rules16

A recent study by the U.S state Department concerning non-binding International

agreements between state noted that;

“It has long been recognized in International practice that governments may agree on
joint statements of policy or intention that do not establish legal obligations. In recent decades
this has become common means of announcing the results of diplomatic exchanges, stating
common positions on policy issues, recoding their intended course of actions in matters of
mutual concern or making political commitments to one another. These documents are
sometimes referred to a non binding agreement, gentlemen’s agreements, joint statements or
declarations”.17

What is determinative as to status in such situation is not the title given to the documents
in question, but the intention of the parties as inferred from all the relevant circumstances as to
whether they intended to create legal relationship between themselves in the matter in question.

To conclude it can be said that, the beginning of International practice can be traced back
from the early societies like the Greeks, the Romans and other early societies. It is from those
practices of the early societies where they were adopted and so helped in the formation of
various laws we use today as public International laws.

15
M.N. Shaw, International Law ,p 92
16
Ibid
17
Ibid p.93
 OUTLINE
INTRODUCTION

General concept of International Practice

MAINBODY

The beginning of International Practice.

The sources of International Practice

Acceptance (conditions) of International Practice.

CONCLUSION

BIBLIOGRAPHY
 BIBLIOGRAPHY

Agrawal R.K, Public International Law, Pioneer Printers, Seth Gali,2003

Dixon. M, Text Book on International Law, 5th Ed, Oxford University Press, London, 2005.

Shaw M.N, International Law, 4th Ed, Cambridge University Press, Edinburgh, 1998

Starke J.G, An Introduction to International Law, 5thEd, Butterworth & Publishers Ltd,

London, 1963.

Verma. S.K, An Introduction to Public International Law, Prentice-Hall of India Private

Limited, New Delhi, 1998.