International Treaties have taken over the primacy of

International Customary Law as a source of Law Discuss.

Assignment
International Law
Diploma in International Relations

S.R. Liyanagunawardena
D/14/B/32/E

Introduction
It is undeniably acceptable that international co-operations between states is necessary because
no state acting along is able to achieve its objectives. Hence the recognition of international
law as the framework within which international co-operations take place.
International law is a highly decentralized system of laws that looks to many sources for its
rules and principles - the three main sources of obligations are treaties, customary international
law, and the principles of natural law. Article 38 of the statute of International Court of Justice
(ICJ), directs the court to decide cases before it on the basis of international treaties,
international custom, and the general principles of law recognized by civilized nations.
According to Professor Kal Raustiala (UCLA Law School, United States), two major trends of
the world in the past century has been the emergence of international organizations (e.g. the
UN) and the use of treaties as a directive source of international law. Common examples for
treaties as sources of law are, international humanitarian law, laws of aviation (freedoms of
air), and the United Nations itself which was created as a result of a treaty.
Treaties
A treaty is a formally concluded and ratified agreement between independent governments.
The creation of written agreement between states signifies the consent of all involved parties
legally to act in a particular relation between themselves bound by the negotiated terms, thus,
once executed, a treaty becomes international law.
Types of treaties are twofold:
1. Law-making treaties (Multilateral treaties whose main intention is to have universal
relevance)
2. Treaty-contracts (They are mainly bilateral treaties or applied between a small number
of states)
Customary International Law
For a principle or rule to be customary international law, it must have two elements:
1. State practice Physical element
2. Opinio juris Psychological element

The state practice element requires a significant amount of countries behaving in a certain it must be manifested in the general practice of states. There cannot be a rule of customary
international law that most states do not actually follow or observe in the course of their actions.
This notion is stated in Article 38.1(b) of the International Court of Justice statute which refers
to International custom as a source of international law, specifically emphasizing the two
requirements of state practice plus acceptance of the practice as obligatory.
Conversely, the opinio juris element requires that the acts and behaviours of the state practice
stems from a sense of legal obligation. As opposed to behaving in certain, the states must be
doing so out of a belief and sense that it is their legal obligation to behave in that manner.
As opposed to proving why an actor did act in a certain way, it is relatively more difficult to
prove why it did not act. For this reason, the requisite of signifying that a behaviour was driven
by a sense of legal obligation makes it particularly difficult for customary international law to
develop around the prohibition of a practice. One important case in the development of modern
customary international law is the S.S. Lotus case.
Lotus Case in brief
A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel
Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish
vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board
the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish
ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the release of Demons
or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute
on the jurisdiction to the Permanent Court of International Justice (PCIJ).
During that incident, France attempted to protest Turkey's assertion of criminal jurisdiction
over a French citizen for acts committed on the high seas (outside of Turkey's territory).
France presented a number of historical examples to demonstrate that the state of nationality
or the state whose flag the ship had flown had exclusive jurisdiction in cases such as this.
However, the Permanent Court of International Justice (a precursor to the ICJ) declared that
the evidence showed merely that "States had often, in practice, abstained from instituting
criminal proceedings, and not that they recognized themselves as being obliged to do so; for

only if such abstention were based on their being conscious of having a duty to abstain would
it be possible to speak of an international custom."
This reasoning was cited approvingly in the North Sea Continental Shelf cases, which similarly
declined to find the existence of customary law regarding the proper method to delimit
territorial claims to the continental shelf extending from the coastline of states bordering the
North Sea.
Two principles were derived from this case. The first one being that a state cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do
so. The second principle was within its territory, a State may exercise its jurisdiction, on any
matter, even if there is no specific rule of international law permitting it to do so.
The first principle signifies the trend of seeking reference to a treaty as a source of law as
opposed to customary international law.
Relationship between Treaties and Customary International Law
With certain palpable differences (e.g. treaties based on written agreements by
parties), customary international law and treaties intersect expressively with relevance to the
formation of international laws.
One such cross-over is the concept of entanglement. Entanglement refers to a position where
non-parties are bound when treaties reflect customary law, not because it is a treaty provision
but because it reaffirms a rule or rules of customary international law. Being associates of the
international community, states agree to be bound by customary international. Essentially, this
roots itself back to customary international law. Therefore, the codification or inclusion of the
rule in a treaty merely serves to emphasize and state that what law is already.
Another concept is that of instant custom, which occurs when a provision or rule in a treaty is
agreed to by a large number of countries, including all particularly affected states. When the
number in agreement is substantial enough, the provision or principle promptly establishes a
rule of customary international law. The need for a large number of states to be in agreement
necessarily denotes the requirement for the treaty to be a multilateral one.
As with other forms of customary international law, a state may oppose the rule and be a
persistent objector. When instant custom is at issue, a persistent objecting state must dissent

throughout the formation process. This must be in the form of actual debates and discussion
in opposition.
Treaties often incorporated as a vital source of law during jurisdiction while customary
international laws have been primary laws at the commencement of any case.
The ICJ has specifically discussed the relationship between customary international law and
treaty law in the case between the United States and Nicaragua (Which involved military and
paramilitary activities conducted by, or with the assistance of, the United States against
Nicaragua from 1981 to 1984). Because of the identical content between treaty provisions and
customary international law, the United States argued that treaty provisions supervene and
subsume the parallel customary law provision to which the court disagreed.
During the course of this case, the Court distinguished two situations in response:
1. Situations where the customary law principles were identical to treaty provisions; and
2. Situations where customary law and treaty law rights and obligations differed in respect
of the same subject matter.
With respect to the first situation, the court held that even if principles of customary
international law are codified into treaties, both sources of law coexist. For treaty parties, both
customary and treaty law apply. However the court also stated that should the treaty cease to
apply, the identical customary law provision continues to apply between them unaffected.
In situations where customary international law and treaty law provisions were not identical,
e.g. concepts such and necessity and proportionality which are found not under Article 51, or
the UN Charter, but in customary law.
Further, should the treaty law and customary international law deviate from one another, the
treaty provisions apply as lex specialis which states if two laws govern the same factual
situation, a law governing a specific subject matter (lex specialis) overrides a law which only
governs general matters (lex generalis).

Although the interplay between treaties and custom is a constant in international law, evidence
suggests that the two sources exist independently. The extent to which treaty law applies and
may affect rules of customary international law and vice versa must be determined taking into
account the circumstances of each distinct case and therefore the role of customary
international law cannot be diminished simply due to the trend towards treaty law.
In conclusion, it could be felt that while a treaty will display inelasticity in the face of everchanging circumstances of the world, custom has flexibility and responsiveness to such
changing conditions. Hence, the international community should not depend on one in the
absence of the other, regardless of the treatys apparent primacy over custom, as a source of
international law.