Customary International Law as a Source of Law

The concept of customary international law rarely becomes the subject of separate discussions. As a rule, they address it in the context of the key public discourse. Nevertheless, it is a paradigm that exerts a tremendous influence on multinational order and stability. Therefore, it is worth knowing about self-respecting citizens.

2 Types of Customary International Law

To date, there is no absolute consent regarding the definition. The most universal term was accepted by members of the United Nations. The international court is frequently guided by the points of customary legislation because of its primacy among other judicial institutions. It is not surprising that most scientists and attorneys accept its exegesis. According to them, there are two sorts of the mentioned sphere:

  1. The first one consists of norms logically derived from the basic cross-border general principles. For instance, each state is independent. Hence, its sovereignty extends to all territorial borders.
  2. The second kind covers the so-called opinio juris. In this case, the canon should be regarded as a broad state practice, legally binding for all parties to the convention. Voluntariness of their observance is not connected with traditions or politeness but with specific deeds.

Numerous items have a rational justification, let’s say, a self-defense is a necessary reaction proportional to pressure. However, some covenants are frankly surprising, like the right of Costa Rican people on their land.

Given that most of the rules are grounded on the opinions and actions of countries, one can comprehend why researchers branded customary international law with epithets as primitive or fuzzy. Any oral codex has received a material cover raises controversial queries that do not have a clear answer.

An akin blurring leads to serious problems in the legal system. If the law is ambivalent and contested at every opportunity, states are not in a position to adapt their policies quickly to protect fairness and humanity.

Since governments hinge exclusively on own resources and efforts, they may refuse to meet certain multinational standards for their survival. Therefore, scientists often call the community of transnational players anarchistic by nature.

Recognizing the reality, a precept was introduced according to which a country must sign a treaty in order to be legally bound by obligations. Common law destroys an idea of unspoken accordance. The fact is some opinio juris literally deprive pacts of legal force, making them invalid in the eyes of the nation. Even the International Court could not cope with the habits and prescribe the criteria for assessing legislation.

Custom as the Source of Law

Common law has a significant legal weight, along with transnational agreements. Article 38 points out that a judge must be guided not only by conventions but by norms and customs as a system of evidence. I.e. an experience should be a mix of consistent solutions appropriate to the traditions and situations.

Official statements on behalf of states are considered the focus of the nodes of customs, which combine both legal duties and life. The country's actions in cross-border organizations through its representatives serve as the secondary sources on customary legislation. The researcher may use publications of the legislative assembly, the digests, and also turn to secondary data for obtaining explanations and possible references to other sources of international laws.

Apparently, a customary transnational law is a laborious issue for the rule. Few political regimes are famous for their ability to apply amorphous clauses, not paying attention to the ambiguous substance and unjustified predictions about the expected behavior. It is still possible to oblige states to comply with jurisdiction without their explicit agree through force or sanctions.

Evidence of Customary International Law

As early as 1947, within the framework of the UN, a Commission was created to examine means of ensuring the availability of evidence. It managed to codify numerous statements, although all efforts in the indicated direction can be considered vain. Assume that each aspect could be registered, but this procedure would entail only a short rest.

Social and economic transformations bring a change in the behavior. This means that many opinio juris points are amenable to reformulation. Therefore, codification causes great confusion and exacerbates a different quality of customary law, namely: it connects countries without their explicit accord. In order to establish the authority of a certain source, you should provide and carefully study:

  • Decisions of multinational arbitral tribunals
  • The views of the national appeals courts
  • Publications of scientists
  • Statements clarifying a concrete rule if such a desire does not raise objections from other parties.

The best evidence of customary law is the existing legal praxis with reference to official sources and the deeds taken by the government. Of course, a potential testimony base is quite numerous and diverse. It involves diplomatic correspondence, press releases, litigation manuals, orders, political commentaries, declarations, reservations to agreements, and resolutions of the UN General Assembly.

For instance, in the US, some of State Department statements contain items of cross-border jurisdiction, providing a source for obtaining the warrant. Such papers include memorandums, observations, and letters of legal advisers, etc.

Thus, a customary international law could become a powerful legal tool in the hands of a single, universally recognized judicial body. To do this, it is only necessary to define the choice and hand over a mandate with proxy over violators of humanistic ideals or transnational borders. But in the context of a crisis of legitimacy and lack of transparency in backstage negotiations, it is unlikely that solicitors will be able to form such an organ.

×
Sarah
Sarah online
Need help with writing a paper? We can offer you a custom sample of any type of text.
Quick Help Button