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B.B.A. LL.B
VI SEMESTER

INTERNATIONAL LAW

Topic – Customs as a Source of International Law

SUBMITTED BY: SUBMITTED TO:

MOHAMMAD ADEEB ZAIDI MD. TABISH EQBAL
ENROLLMENT NO. 2021-342-055
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Acknowledgement

I would like to express my special thanks of gratitude to my teacher MD. TABISH

EQBAL who gave me the golden opportunity to do this wonderful project on the
topic ‘Customs as a Source of International Law’, which also helped me in
doing a lot of Research and I came to know about so many new things regarding
subject as well as the topic relevant matter.

Secondly, I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.
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Introduction

Sources of international law1 include a variety of sources such as treaties,

international customs, scholarly writing, judicial decisions and general principles of law
recognized by states around the world.2 Article 38 (1)3 of the Statute of the International
Court of Justice specifically states what sources would be regarded as sources of
international law and customs is one of them.

Customary international law4 refers to international obligations arising from

established state practice.5In a detailed manner, the International Law Association has
defined customary international law as something “created and sustained by the constant
and uniform practice of states in circumstances that give rise to the legitimate expectation
of similar conduct in the future.”6 There are two elements of customary international law,
the first being state practice (usus) and the other being the belief that such practice is
required, prohibited or allowed, depending on the nature of the rule, as a matter of law
(opinio juris).7

Customs has been an integral part of law from the beginning of the development of
laws and many scholars are of the view that customs are important sources of law, be it
public or private. Before sophisticated legal systems developed, customs was the
governing body which shaped the behaviour of subjects. The same concept is applied to
international law as well. The purpose of this essay is to analyze the importance of customs
as a source of international law, examine whether the significance has decreased through
time and also to analyze the nature of customs and their usage as a mode of conflict
resolution in an international scale.
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Analysis

Nature and Usage of Customs

 Nature

Customs are subject to change and are also subject to advancements, refusals and
modifications through time. The consistency of customs compared to positive law8 is less
as customs are not codified laws and hence, they lack precision. Therefore, a doubt
regarding the existence of a custom will not render such custom be established as law, for a
custom to be law it should be consistent, widespread and uniform.9 Moreover, customs
are not as same as customary law and it was clearly explained in North Sea Continental
Shelf Cases10. Such requisites of customary international law11, including state practice
and

opinio juris12 which were discussed before, were set forward by the International Court of
Justice from time to time. As it is expected from the International Court of Justice to decide the
acceptability of claims regarding existing customary practices, the court‟s interpretations on
requisites of customary international law have to be discussed as a part of its nature which
would be explained under the usage and legal validity of customs13 hereinafter.

 The Usage and legal Validity

As it is established by the International Court of Justice, usus14 and opinio juris15 is

required for a custom to be a valid legal authority. However, it is always a moot point to
decide whether there was a reasonable belief as to the existence of a legal obligation.
Deciding opinio juris has always been a challenge and the following explanation will
provide a basic idea as to how the court acted in various cases involving customary
international law and deciding the validity and legal force of such customs.
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Following are some legal authorities where the validity of customs as a source
of law as questioned.

 Asylum case (Colombia v. Peru)

In this case, the ICJ held that “Where a local or regional custom is alleged, it is the duty of
the proponent to prove that this custom is established in such a manner that it has become
binding on the other party.”

Furthermore, the case abides by the principle that “custom is created and becomes binding
if it is in accordance with a constant and uniform usage practiced by the States in
question.”18 There should be evidence as to the existence of such practice.19

 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and The
Netherlands)20

These cases had established the fact that in order for a custom to become law, state
practice itself will not be sufficient, opinio juris should also be proved.21 The ratio sets
forward that even though there may be state practices, it could be practices followed by
states as means of “courtesy, convenience or tradition, and not by any sense of legal duty.”
Therefore, opinio juris should be established. Furthermore, the concept of Instant
Customary Law22 was also thrown light thorough this authoritative case.23

 Advisory opinion on the Use of nuclear Weapons (1996)

It was held by the court that “No rule can be created on opinio juris without state practice.”

 Lotus case (France v. Turkey)24

It was held in this case that “a new rule of customary international law cannot be created
unless both these elements as discussed are present,”
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Nicaragua v. United States of America (1986)

“In order to deduce the existence of customary rules the court deems it sufficient that the
conduct of the states in general should be consistent with such a rule and that instances of
state conduct inconsistent with a given rule should have been treated as breach of that rule
as indication of the recognition of a new rule.”26 Furthermore, regarding state practice, the
court held that “it was not necessary that the practice in question had to be „in absolutely
rigorous conformity‟ with the purported customary rule27.”28

 Central Gold Mining Company Ltd v. R 29

“The court ruled that for a valid international custom it is necessary that it should be
proved by satisfactory evidence that the custom is of such nature that it has received
general consent of the states and no civilized state shall oppose it”30

In regard to the legal authorities mentioned above and more cases on similar
matters31, main characteristics of customary law can be concluded which says that,

a) Both opinio juris and state practice should be proved and

b) Both concepts are interconnected.32

c) State practice is conveyed through administrative acts, legislation and

decisions of the courts etc.

The Scotia case is also of utmost importance to the sphere of customary law as it explained the
fact that a certain practice is “in force not because it is prescribed by any superior power, but
because it is generally accepted as a rule of conduct”.33
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Place for Customary International Law

Customs has always played a major role in the development of law, but does it has the
same position it used to have before the development of various alternative sources of law?
What difference does customary law has with other sources of law? These dimensions will
be examined within the corners of this section. According to Article 38 (1)34, customary
law is given the place next to international conventions/ treaties35. What differences are
there between customs and other sources of international law?
Customs and Treaties / Conventions

In general, customs are unwritten, they are values created by the society which
expresses the needs of the society. Customs are mostly spontaneous actions or procedures
concerning a certain issue and customs get authority as a matter of being followed
consistently and also through the acceptance of the society. Conversely, treaties are formal
documents agreed upon by member states, members of the United Nations or international
law to be specific, with or without reservations. The persistent objector rule36 in customary
law is similar to reservations to an extent.

Furthermore, the procedure regarding the rejection or acceptance is formal and it is not as
much as simple as customs. Writers such as R. Baxter tend to show a close relationship
between treaties and customary laws.37 However, in North Sea Continental shelf case, few
instances where a treaty could be an accurate reflection of customary international law was
explained. 38

a) “The treaty could have codified pre-existing international law.

b) A treaty may crystallize an emergent rule of customary international law.

c) The treaty might pass into customary international law after its conclusion.”39
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 Customs and General Principles Recognized by Civilized States

Generally, customary values constitute the base of the principles agreed upon by the
civilized societies. There is a deep relation between the principles adopted and the customs,
as customs constitute the roots of any system.

 Customs and Judicial Decisions

As it was clearly expressed earlier, judicial decisions is a source which affirms or

disregards the validity of a custom as a customary law. Existence of a mere practice would
not establish a law. There are requisites and the interpretation regarding the requisites with
the existing facts of the case is undertaken by the courts. Legalizing or rejection is
conveyed through judicial decisions.40

 Customs and Scholarly Writing

Scholarly writing includes individual opinions, affirmations, justifications and various

conclusions. Customs could be an integral part of certain scholarly writings focused in
justifying a certain point but it always does not have to be the same. Significant number of
scholars had set forward various views regarding customs.41 As examples, Francois Geny
and Kelson, R. Baxter had different ideas regarding customary law and such ideas were
important in developing the sphere of customary law.

 Custom as a means for development of International Law

Also being accepted by the Vienna convention42, there is no doubt as to the fact that
customs played the most important role in regard to the development of law, which is the
same in regard to International Law. Important developments of customs/customary law
include Jus Cogens, Obligatio Erga Omnes, multilateral conventions or treaties which
developed human rights prohibitions against genocide 43
, torture44, and slavery45.
Moreover, above developments of customary international law show that customs have
also contributed to the protection and guaranteeing of human rights apart from its other
modes of assistances in conflict resolution.46
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Conclusion and present situation of custom as a source of international law

In conclusion it can be indicated that customs had an important role in developing a

comprehensive system of international law, and in the present also the contribution seems
to be significant. There are many arguments for50 and against51 custom as a source of
international law by various scholars. Some scholars are in the view that with the
development of Lex Scripta52 , the place for customs has somewhat deteriorated. In
contrast, some are considering the need for custom in the present international context in
dimensions such as instant customs53.

On the other hand, competition between states in terms of trade and superiority,
vagueness of customary law, and time consuming nature in conflict resolution through
customary law has somewhat weaken the place that customary law/ customs had as a
source of public international law. Furthermore, it is believed that most international
customs were norms put forward by western colonists on Asian and African nations which
would show resistance over the customs which in result, deteriorates the value of customs54.

However, unlike in treaties and other codified laws customs have flexibility and the
opportunity to adapt which shows the value of customs and hence, inability to disregard
customary law55. Furthermore, customary law or customs had developed in to higher
dimensions as law in the forms of human rights, obligation to protect rights by states and
so on.

Therefore, it is reasonable to conclude that customary law in its original form might
have lost its authority to an extent in line with the development of other sources, but yet it
is a powerful source as it is an integral part of the world which reflects common interests
of states and people.
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Bibliography

Books

Shaw, Malcolm N. International Law. Cambridge: Grotius Publications,

1986. Print. Harris, D. J. Cases and Materials on International Law. London:
Sweet & Maxwell, 2004.
Hoof, G. J. H. van (Godefridus J. H.), 1949-. Rethinking the Sources of International Law.
Deventer, Netherlands ; Boston : Hingham, MA :Kluwer Law and Taxation Publishers ;
Distribution in USA and Canada, Kluwer Academic, 1983. Print.Print.
Hale, Matthew. The History of the Common Law of England and An Analysis of the Civil
Part of the Law. London: Henry Butterworth, 1820. Print.

Cases

Asylum case (Colombia v. Peru) I.C.J. Reports 1950, p.266.

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and The
Netherlands)

I.C.J. Reports 1969, p.3.

Advisory opinion on the Use of nuclear Weapons

(1996) Lotus case (France v. Turkey) PCIJ series
A, No 10, (1927) Nicaragua v. United States of
America (1986)
Central Gold Mining Company Ltd v. R ([1905] 2 K. B. 391).