CENTRAL UNIVERSITY OF SOUTH BIHAR

PROJECT ON
INTERNATIONAL CUSTOM AS A SOURCE OF INTERNATIONAL LAW

SUBMITTED TO:
MRS. KUMARI NITU
FACULTY, PUBLIC INTERNATIONAL LAW
ASSISTANT PROFESSOR
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR

SUBMITTED BY:
SHASHI RAJ
B.A LL.B. (Hons.), IVth SEMESTER
ENROLLMENT NO. – CUSB1813125095
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR

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 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I respect and thank Mrs. Kumari Nitu, for providing me an opportunity to do the project work
and giving us all support and guidance which made me complete the project duly. I am
extremely thankful to her for providing such a nice support and guidance, although she had
busy schedule managing the other affairs.

I owe my deep gratitude to my friends, who took keen interest on my project work and guided
us all along, till the completion of our project work by providing all the necessary information
for developing a good system.

I would not forget to remember my parents, for their encouragement and more over for their
timely support and guidance till the completion of our project work.

 I am thankful to and fortunate enough to get constant encouragement, support and guidance
from the faculty which helped us in successfully completing our project work. Also, I would
like to extend our sincere esteems to all staff in library for their timely support.

SHASHI RAJ
(B.A. L.L.B., 4th Semester)

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 Table of Contents

Table of Contents............................................................................3

Sources of International Law...........................................................4

Introduction to International Customs as sources of International

Law...................................................................................................4

Essential ingredients of a custom.....................................................5

Cases

(1) North Sea Continental Shelf Cases.....................................6

(2) The Asylum case.................................................................7

Importance of International Customs as Sources of International

Law....................................................................................................8

Conclusion.........................................................................................9

References........................................................................................11

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 INTERNATIONAL CUSTOMS AS SOURCES OF
INTERNATIONAL LAW

Sources of International Law

The methods or procedures by which international law 1is created is termed as “source” of
International Law is created. The historical fact out of which rules of conduct come into
existence is termed as source of law 2. This source can either be legal methods for the
emergence of general rulesor actual materials which can provide the evidence to the existence
of rule. Oppenheim opined that common consent is the only one source of international law,
Lawrence also supported same view but added logic to it that Consent may be either express
or implied. Logically, therefore there are two chief sources of international law- Treaties
(express consent) and customs (implied consent). Later different jurist gave different views,
finally source of international law was enshrined in Article 38 of the statute of International
court of Justice (ICJ) which included (i) International Conventions i.e. treaty, convention,
protocol or agreement recognized by the contesting states, as a source of International Law(ii)
International customs i.e. Customary rules of International Law which have been developed in
the long process of the historical development. Custom is the usage means repeated practice
of any action by state which has been enforced as law due to its long duration, uniformity and
consistency. (iii) General Principles of Law which means principles so general as to apply
within all systems of law that have achieved a comparable state of development. Judicial
decisions and the academic writings are also subsidiary means of legal interpretation.

Introduction to International Customs as Sources of International Law

The oldest and most original source of international law is international custom. Customary
rules of international law are the rules which have developed long time ago and this historical
development of Custom is one such a usage which enforce the law but usage is an

1
“International law” is defined as “[t] those laws governing the legal relations between nations.”BLACK’S
LAW DICTIONARY 816 (6th edition 1990).
2
This definition has been defined by OPPENHEIM.

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 international habit which has yet not received the force of law. Another one is proved in many
cases that a provision of a treaty may also generate a rule of customary international law as
held in case of North Sea Continental Shelf Cases3.

According to Article 38 of the Statute of ICJ, international law should be the evidence of
general practice which has been accepted as law since time immemorial. This feeling on the
parts of States that acting as they do, they are fulfilling legal obligations is called opinio juris
sine necessitatis. Thus when a general usage in international sphere, or State practice, is
connected with opinio juris et necessitatis, international customary law exists.

Essential Ingredients of a Custom

According to Article 38 of the Statute of the International Court of Justice, there are two
requirements for the existence of international custom, namely: firstly, there should be a
sufficiently uniform State practice; and secondly, the belief that such a practice is obligatory
(this psychological element is called the opinio juris).

There are basically two important ingredient to establish the norm of the customary law :-
(i) Material Fact: It is not carried on in a written form but is a state practice it further
contains two elements i.e (a)Long duration-In Article 38 of the Statute of International
Court of Justice.if we talk about international law, customs are not existing from long
time they are there but from very little duration For instance, custom relating to
sovereignty over air space and the continental shelf. In North Sea Continental Shelf
cases4, the World Court observed that “the passage of only a short time period is not
necessarily a bar to the formation of a new customary international law”.(b)
Uniformity and Consistency –It is important for a custom to be uniform and consistent
in nature. Though complete uniformity is not necessary, yet there must be substantial
uniformity. In Paquete Habana case5, the U.S. Supreme Court examined State laws
and practices, treaties, writings of publicists evidence usage, and decisions of court,
and held that these materials uniformity proved the existence of a valid customary
rule.

3
(1969) International Court of Justice Report 3.
4
(1969) International Court Of Justice Report 3.
5
175 U.S. 677 (1900)

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 (ii) Psychological believe means their should be belief or say there should be implied
consent to believe.

Cases
1.North sea continental shelf cases6
Facts-- In this case, a dispute arose between the States of Germany, Denmark and Netherlands
regarding the delimitationof their continental shelf. Both Denmark and Netherlands relied on
a multilateral treaty which provided for equidistance method, in the absence of agreement.
The treaty permitted the signatory States to reserve their position with respect to the
equidistance method. Denmark and Netherlands had also ratified the 1958 Geneva continental
shelf convention which said the equidistance principle 7 were to be applied. Germany did not
ratified itst signed treaty , moreover, they captured their position with respect to delimitation
which might have affected its own continental shelf. There was no agreement therefore, Both
Denmark and Netherlands contended that the equidistance-special circumstances rule as itwas
not only a conventional provision but has emerged into a custom, and hence binding on
Germany. Germany, while denying the obligatory character of the provision, contended that
the correct rule to be applied in such cases is one according to which each of the States
concerned should have a “just and equitable share” of the available continental shelf, in
proportion to the length of its coastline of sea frontage. Germany wanted the length the coast
as the factor determining delimitation.

Dispute – if the delimitation was done by equidistance principle, Germany would be at a loss
because Germany had concave coasts and Denmark and Netherlands have convex coasts.

Issue – So was equidistance principle customary international law?

Judgement – The Court said that

6
(1969) International Court Of Justice Report 3.

7
According to Article 6 of the Geneva Convention.

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 (i) while it was only contractual in origin, therefore it is possible for conventions to pass into
the corpus of international law, and thus become binding for those countries who never
become parties to the Convention. But this wasn’t the case here.
(ii)The Court decided that it is an unusual preface for it to be a general rule of law, Also the
meaning of equidistance principle in Article 6 of the Geneva Convention is not clear.
(iii)ultimately the court asked the the parties to “abate the effects of an incidental special
feature [Germany’s concave coast] which can lead to an unjustifiable difference of treatment
could result.”
(iv)The States granted most of the additional shelf to Germany.
(v) The case is viewed as an example of “ equity praetor legem”- that is, equity “beyond the
law”- when a judge supplements the law with equitable rules necessary to decide the case at
hand.
2.The Asylum Case8

This case concerns the institution of diplomatic asylum in Latin America. The Colombian
Ambassador in Lima, Peru allowed Victor Raul Haya de la Torre, was given asylum after his
faction lost a one-day civil war in Peru. In 1949, Columbia gave asylum to a rebel Peruvian
political leader in its embassy in Peru. The Colombian Ambassador requested the Peru
Government to allow rebel leader to leave the country on the ground that the Colombian
government qualified him as a political refugee. But the Peru government refused. The case
was referred to the International Court of justice. In its submission, Colombia claimed the
right to qualify (i.e. characterize) the nature of the offence by unilateral decision that it would
be binding on Peru. The Colombian government based his claim on certain international
agreements, and an international custom regarding diplomatic asylum. Columbia maintained
that according to the Conventions in force – the Bolivian Agreement of 1911 on Extradition,
the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on political
Asylum and according to American International Law, they were entitled to decide if asylum
should be granted and their unilateral decision on this was binding on Peru.

Both submissions of the Colombia were rejected by the Court. The relevant treaties cited by
Colombia were not decided ratified by Peru, and it was not ratified by Peru, and it was not

8
International Court of Justice Report (1950).

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 found that the custom of Asylum was uniformly or continuously executed sufficiently to
demonstrate that the custom was of a generally applicable character.

The Court observed: “The party which relies on usage of this kind must proved that this
custom is established in such a manner that it has become binding on the other party. The
Colombian government must prove that the rule invoked by it is in accordance with constant
and uniform usage practised by the States in question, and that this usage is the expression of
a right appertaining to the State granting asylum and a duty incumbent on the territorial state.
This follows from Article 338 of the Statute of the Court, which refers to international custom
‘as evidence of general practice accepted as law’.”

Findings – The Asylum case shows that international law recognised the existence of a special
custom or local custom. The local or regional custom which derogates from general
customary law becomes binding only on States that support it.
3. Similary, in Libya v. Malta case9 the ICJ was of the opinion that “equidistance principle” is
not a customary rule of International Law as evidenced by state practices. The court laid
emphasis on geographical and geo-morphological feature and rejected economic factors.

4.SS Lotus Case10

This case is also known as France v. Turkey , in this case there was a collision between the
French ship (named as Lotus) and the Turkish ship (named as bozcot) in the high sea and
when the French ship entered the area of Turkish water criminal proceedings were constituted
on them then this mater went to the ICJ where, France contended that it was not in the
criminal jurisdiction of Turkish court and the flagship has authority to trial there officers but
the court was of the opinion that Turkey has liberty to trial French officer because they
suffered loss because of them and there in no such custom that only Flagship has authority for
trial.
It was later overruled by Geneva Convention Law of Sea, 1958.

9
(1985)

10
(1927) PCIJ, SERIES A No. 10

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 Difficulties in application of International custom

Custom is something that is very difficult to establish before the international judicial tribunal
because of the following reasons:

 Existence of custom must be proved

 It has to be established before the judicial tribunal that this custom is being in
continuous practice by the large number of states without any break or variation in
practice.
 The most difficult thing is to prove opinio juris.
 State has to prove the existence of the international custom. The ICJ or any judicial
tribunal cannot take suo moto regarding this factor.
 International custom should not run anti-parallel with the rules otherwise it will be
superseded by the latter.
The Lotus case11 demonstrate that the opinio juris is essential for creation of new
customary rule. In this case the French government was unable to prove that the act of
state was legal obligation.

Importance of International Customs as Sources of International Law

There has been a marked decline in the importance of customs as the source of international
law in recent times. Article 38 of the Statute of International Court of Justice also relegates it
to the second position.

The reasons for decline in the importance of customs are –

(1) Changes and development in international law – The process of the development of a
new custom is very slow. Modern world is very complex and the subject matter of
international law has increased tremendously, for example, intellectual property, nuclear
disarmament, greenhouse effect, ozone hole etc. Various treaties and conventions so as to
adopt international law in accordance with the changing times and circumstances for affecting
of rapid changes. However, in modern times also the development of a new custom is possible

11
(1927) PCIJ, Series A No. 10

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 and at that times customs have developed with accelerated speed. Principles relating to
sovereignty over air space and continental shelf are its glaring examples.

(2) Custom making- an individualistic process – The development of custom is based on

the agreement between States. Consequently, customary rules are binding only on those States
who have given their consent for them. A local or regional custom which derogates from
general customary law becomes binding only on States that support it.

(3) Difficulies in application of customary rules- As Lotus case, North Sea Continental
Shelf case and Asylum case, prove that it is very difficult to prove opinio juris (a subjective or
psychological element involved in the formation of a custom).

Conclusion—

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 members states to be among
the primary sources of international law. Article 38(1) (b) of the International Court of Justice
Statute 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 or opinio juris sine necessitatis (usually abbreviated as opinion juris). Duration of
state practice, uniformity and consistency in practice, generality in practice and opinio juris
(acceptance of practice as law).

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 Refrences:-

Books:-

1.Public International Law & Human Right [ Law of Peace]..... by Dr. Ashok k. Jain.

Published by Ascent Publications

2. International Law .... by Malcolm Shaw ..... published in the United State of

America by Cambridge University Press, New York

Sites:-

1. www.cambridge.org
2. www.britannica.com
3. www.soas.ac.uk

Dictionary:-
Black Law’s Dictionary

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