Questions Legal

What is customary international law?


Rakhi Dey

Your only limit is your mind

The laws which are created by international customs but do not take the place of well-established laws with a strong base are called customary international law. There is no proper definition of customary international law upon which there is an agreement. The closest definition that has come forward is by the members of the United Nations.

International Court of Justice, which was being established under the statute, was working upon this to bring a clear definition of customary international law. Though ICJ has its place under the statute, it is a superior working organ or popularly known as principal judicial organ, and the decisions taken by this regulating body is to be followed by other courts working on international platforms.

The relationship between customary international law and ICJ

According to the North Sea Continental Shelf, there are mainly two types of customary international law.

The first type is overlooked frequently, holding some rules that are very necessary and self- evident case laws of the international principles.

The second type which is the main focus of the whole of the article is the rule that is known as “opinio juris”. To come under the category of opinio juris a rule must fulfill the following conditions:

  • The rule should be well settled and does not involve any controversy so that the states can act with a universal consistency (the USA vs Nicaragua)

  • The rule should be such that it should be followed by the states or in other words the states should be bound to follow the rule (which may not be just due to politeness or tradition or convenience)

ICJ popularly said that the satisfaction level from this laws could be determined by observing the physical reaction of the states on adoption of rules, which also has a great influence of the treaties adopted by them and several reactions of government. Some of the rules under the category of opinio juris are foreseeable and reasonable. The acts done for the self-defense are necessary as no person will not prefer to protect themselves from any attack.

Clarity problem in law

The problem with the law is that it does not have a strong base or motive. It was just created by the state's behavior and their beliefs. This is the main reason that the customary law had been described by words such as “disband, “primordial,” “puzzling.” Now, it is for sure that anybody framed and working upon such basis will be hazy and will lead to the raising of awkward questions.

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