Customary Law

Customary Law

A customary (usage) element has been a feature of the rules of international law from antiquity to modern times. In ancient Greece, the rules of war and peace sprang from the common usages observed by the Greek City States[1]. These customary rules crystallised by a process of generalisation and unification of the various usages separately observed by each city republic. A similiar process was observable among the small Italian States of the Middle Ages When in the sixteenth and seventeenth centuries Europe became a complex of highly nationalised independent territorial States, the process was translated to a higher and more extensive plane. From the usages developed in the intercourse of modern European States there emerged the earliest rules of international law, all of a customary character. The preponderance of customary rules was diminished as result of the large number of “law –making” treaties concluded since the middle of the last century,but it continued to remain subtantial.

The recent attempt to codify international law and the conclusion of multilateral treaties in many important areas, such as diplomatic and consular relations, the law of war or the law of the sea, have sought to clarify the law and to establish univerally accepted norms. Customary law still retained it’s predominance over treaty law or other source in many other areas, such as state immunity or state responsibility.

Article 38(1) of the Statute of the International Court of Justice provides :

(a).International conventions, whether general or particular, establishing rules expressly recognized by the contesting States

(b).International custom, as evidence of general practise accepted as law

(c).The general principles of law recognized by civillized nations

(d)....,judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

                As confirmed by the ICJ in the Nicaragua case, custom is constituted by two elements, the objective one of a general practise and the subjective one ‘accepted as law’, the so-called opinio iris.[2]

There are 3 aspects that came from usage or custom or practices that have been develope :

1.       Diplomatic relations between States

2.       International  Organizations or Entity

3.       States Laws

The evidence of customary law is found in the actual practice of states, the example is puublished material ( newspaper reports of actions taken by states, and from statement made by government spokesmen to Parliament, to the press,at international conferences and at meetings of international organizations and also from a state’s laws and judicial decisions, because the legislature and the judiciary from part of a state just as much as the executive does. [3] The evidence of customary law can be found also in writings of international lawyers and in judgments of national and international tribunals.

One of the examples is few provisions of the 1969 Vienna Convention on the Law of Treaties. Such a state is not bound by the treaty, but by customary law, therefore, if it can produce other evidence to show that the treaty misrepresents customary law it can disregaard the rule stated in that treaty. Treaty law and customary law can exist side by side. A customary law may change so as to conform with an earlier treaty. For instance, the Declaration of Maritime Law issude by the signatory states of the Treaty of Paris 1856 altered certain rules about the conduct of war at sea.[4] It prohibited privateering, the capture of enemy goods except contraband on neutral ships, and of neutral goods except contraband on enemy ships. It also required blockades to be effective by a force sufficient to actually prevent acces to the coast of the enemy.  A a treaty, it applied only between the parties to it :Austria,France, Prusia, Rusia, Sardinia, Turkey and the United Kingdom. Sbsequently, however, the rules contained in the Declaration were accepeted by a large number of other states as rules of customary law.

                There’s one case that I found. The facts of the case is : in 1863 United Kingdom government have a few of rules to prevent crash in sea. In 1864 US Congress praticlly the same rules and in the short time almost every  maritime states do same things. In this situation a Scotia ship (UK) crash in the middle of sea with Berkshire ( US) which not turn on the lamps as stated in new rules. The cause of the crash is Berkshire sink. The problem is what the rights and obligation or responsibility of these two ships decide by maritime general law that they have before the new rules that England made in 1863 or not. The court decide that the rights and obligations must be decide by new customary international law in Enlgand rules that accepted wider and because of that the fault is on Berkshire side. [5]

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[1] An Introduction to International Law, J.G.Starke (30)

[2] Akehurst’s Introduction to International Law (62) Nicaragua v.USA (Merits),ICJ Rep.1986,14

[3] Akehurst’s Introduction to International Law (62)

[4] Akehurst’s Introduction to International Law (63)

[5] Introduction to International law by J.G. Starke (47)