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Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.
International law is the set of rules generally regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to individual citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts.
A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.
The International Court of Justice, abbreviated as ICJ, is the principal judicial organ of the United Nations (UN). It settles legal disputes between member states and gives advisory opinions to authorized UN organs and specialized agencies. It comprises a panel of 15 judges elected by the General Assembly and Security Council for nine-year terms. It is seated in the Peace Palace in The Hague, Netherlands.
Many governments accept in principle the existence of customary international law, although there are differing opinions as to what rules are contained in it.
In 1950, the International Law Commission listed the following sources as forms of evidence to customary international law: treaties, decisions of national and international courts, national legislation, opinions of national legal advisors, diplomatic correspondence, and practice of international organizations.
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."
The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "a general practice accepted as law."This is generally determined through two factors: the general practice of states and what states have accepted as law.
There are several kinds of customary international laws recognized by states. Some customary international laws rise to the level of jus cogens through acceptance by the international community as non-derogable rights, while other customary international law may simply be followed by a small group of states. States are typically bound by customary international law regardless of whether the states have codified these laws domestically or through treaties.
See jus cogens.
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. These norms rooted from Natural Law principles,and any laws conflicting with it should be considered null and void. Examples include various international crimes; a state violates customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity
A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
Latin is a classical language belonging to the Italic branch of the Indo-European languages. The Latin alphabet is derived from the Etruscan and Greek alphabets and ultimately from the Phoenician alphabet.
The international community is a phrase used in geopolitics and international relations to refer to a broad group of people and governments of the world. It does not refer literally to all nations or states in the world. The term is typically used to imply the existence of a common point of view towards such matters as specific issues of human rights. Activists, politicians and commentators often use the term in calling for action to be taken; e.g., action against what is in their opinion political repression in a target country.
Jus cogens and customary international law are not interchangeable. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens are non-derogable.
Some international customary laws have been codified through treaties and domestic laws, while others are recognized only as customary law.
The laws of war, also known as jus in bello, were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these conventions do not purport to govern all legal matters that may arise during war. Instead, Article 1(2) of Additional Protocol I dictates that customary international law governs legal matters concerning armed conflict not covered by other agreements.
In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war. The singular term Geneva Convention usually denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–45), which updated the terms of the two 1929 treaties, and added two new conventions. The Geneva Conventions extensively defined the basic rights of wartime prisoners, established protections for the wounded and sick, and established protections for the civilians in and around a war-zone. The treaties of 1949 were ratified, in whole or with reservations, by 196 countries. Moreover, the Geneva Convention also defines the rights and protections afforded to non-combatants, yet, because the Geneva Conventions are about people in war, the articles do not address warfare proper—the use of weapons of war—which is the subject of the Hague Conventions, and the bio-chemical warfare Geneva Protocol.
Protocol I is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international conflicts, where "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes" are to be considered international conflicts. It reaffirms the international laws of the original Geneva Conventions of 1949, but adds clarifications and new provisions to accommodate developments in modern international warfare that have taken place since the Second World War.
Generally, sovereign nations must consent in order to be bound by a particular treaty or legal norm. However, international customary laws are norms that have become pervasive enough internationally that countries need not consent in order to be bound. In these cases, all that is needed is that the state has not objected to the law. However, states that object to customary international law may not be bound by them unless these laws are deemed to be jus cogens .However, in a dispute with any nation that has not affirmed the "silence implies consent" principle, any invocation of the "silence implies consent" principle involves an appeal to custom, such that if that nation does not espouse the broader premise of acknowledging the existence of customary international law, such an appeal will depend on circular reasoning ("customary international law is binding because silence implies consent, and silence implies consent because the fact that silence implies consent is one aspect of customary international law").
Consent and International Customary Law
It is commonly said that the international community is ‘anarchical’, in that there is no layer of higher government with absolute power to treat states like citizens. This is in a way unsurprising, since most states could (if pressed) rely solely on themselves for survival. States are thus in a position, unlike individual humans, to refuse the benefits and reciprocal responsibilities of participating in a community under law.
In recognition of this reality, it has long been a tenet of international law that a state must expressly consent to a rule (by, for example, signing a treaty) before it can be legally bound by the rule. Customary international law not only upsets this idea of consent, it does it by stealth.
The Statute of the International Court of Justice acknowledges the existence of customary international law in Article 38(1)(b), incorporated into the United Nations Charter by Article 92: "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply...international custom, as evidence of a general practice accepted as law."
Customary international law "... consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way."It follows that customary international law can be discerned by a "widespread repetition by States of similar international acts over time (State practice); Acts must occur out of sense of obligation ( opinio juris ); Acts must be taken by a significant number of States and not be rejected by a significant number of States." A marker of customary international law is consensus among states exhibited both by widespread conduct and a discernible sense of obligation.
The two essential elements of customary international law are state practice and opinio juris , as confirmed by the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons.
In relation to the psychological element that is opinio juris, the International Court of Justice further held in North Sea Continental Shelf, that "not only must the acts concerned amount to a settle practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it... The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.".The Court emphasised the need to prove a "sense of legal duty" as distinct from "acts motivated by considerations of courtesy, convenience or tradition". This was subsequently confirmed in Nicaragua v. United States of America.
The recognition of different customary laws can range from simple bilateral recognition of customary laws to worldwide multilateral recognition. Regional customs can become customary international law in their respective regions, but do not become customary international law for nations outside the region. The existence of bilateral customary law was recognized by the International Court of Justice in the Right of Passage Over Indian Territory case between Portugal and India, in which the court found "no reason why long continued practice between the two states accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two states."
Other examples accepted or claimed as customary international law include the principle of non-refoulement and immunity of visiting foreign heads of state. United Nations Security Council in 1993 adopted Geneva conventions as customary international law because since the time being it has transformed itself into customary international law. If any treaty or law has been called as customary international law then parties which have not ratified said treaty will be bound to observe its provisions in good faith.
Pacta sunt servanda, a brocard, is a basic principle of civil law, canon law, and international law.
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Related is the idea of prescription; a right enjoyed through long custom rather than positive law.
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.
Legality of the Threat or Use of Nuclear Weapons  ICJ 2 is a landmark international law case, where the International Court of Justice gave an advisory opinion stating that there is no source of law, customary or treaty, that explicitly prohibits the possession or even use of nuclear weapons. The only requirement being that their use must be in conformity with the law on self-defence and principles of international humanitarian law.
The International law bearing on issues of Arab–Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel.
International law is the name of a body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general principles of law as recognized by civilized nations, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.
Opinio juris sive necessitatis or simply opinio juris is the belief that an action was carried out as a legal obligation. This is in contrast to an action resulting from cognitive reaction or behaviors habitual to an individual. This term is frequently used in legal proceedings such as a defense for a case.
The doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country.
The International Court of Justice has jurisdiction in two types of cases: contentious cases between states in which the court produces binding rulings between states that agree, or have previously agreed, to submit to the ruling of the court; and advisory opinions, which provide reasoned, but non-binding, rulings on properly submitted questions of international law, usually at the request of the United Nations General Assembly. Advisory opinions do not have to concern particular controversies between states, though they often do.
The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law. However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practises that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium. These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China.
A reservation in international law is a caveat to a state's acceptance of a treaty. A reservation is defined by the 1969 Vienna Convention on the Law of Treaties (VCLT) as:
a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
The terms monism and dualism are used to describe two different theories of the relationship between international law and national law. Many states, perhaps most, are partly monist and partly dualist in their actual application of international law in their national systems.
In law, the principle of aut dedere aut judicare refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. However, the Lockerbie case demonstrated that the requirement to extradite or prosecute is not a rule of customary international law. The obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality. It is generally included as part of international treaties dealing with an array of transnational crimes to facilitate bringing perpetrators to justice.
Customary international humanitarian law is a body of unwritten rules of public international law, which govern conduct during armed conflict.
Jurisdictional Immunities of the State was a case concerning the extent of state immunity before the International Court of Justice. The case was brought by Germany after various decisions by Italian courts to ignore the state immunity of Germany when confronted with claims against Germany by victims of Nazi-era war crimes. The court found that Italy was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its courts against Germany without effect.
In international law, a persistent objector is a sovereign state which has consistently and clearly objected to a norm of customary international law since the norm's emergence, and considers itself not bound to observe the norm. The concept is an example of the positivist doctrine that a state can only be bound by norms to which it has consented.
The “Namibia exception” identifies the Advisory Opinion issued on 21 June 1971 by the International Court of Justice (I.C.J), the principal judicial organ of the United Nations (UN). The opinion refers to the "Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970)".
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