Discuss the significance of the problems of defining customary international law

Résumé du document

States gathered in the international community have created legally binding rules in order to develop international relations. International law differs from domestic law in that the subjects of the rules are also the legislators: States abide by the rules they have themselves created. Article 38 of the ?Statute of the International Court of Justice' enumerates the sources of international rules, the two most important ones being treaties and custom. Custom, contrary to treaties, is not written and is believed that it is not a deliberate lawmaking process. Treaties are written agreements that are imposed only on the parties that are bound to the treaty. On the contrary, the process of creating a rule of customary international law is less clear and definitely has a wider scope. The definition of the international custom is given by the same article 38.1(b) of the ?Statute of the International Court of Justice'. International custom, as evidence of a general practice accepted as law implies that customary international law is made up of two elements: practice of the States, and the States' conviction that they are actually obeying a rule of law.

Extraits

[...] Another example is the concept of the 200 miles exclusive economic zone which became an international rule in less than ten years[11]. At the present time, we can thus say that although time remains one of the main elements in the emergence of an international customary rule, its importance depends on other factors such as the frequency of the repetition of acts, and, as we may see now, the fact that practice is ‘constant and uniform'. As the Court put it in the North Sea Continental Shelf cases, ‘although the passage of a short period of time is not necessarily, or for itself, a bar to the formation of a new rule of customary law [ ] an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are particularly affected, should have been both extensive and virtually uniform' §74. [...]

[...] But first of all, we need to precise who creates the rules of customary international law. We have already seen that States are the legislators of international law. The acts taken into account in order to determine the existence of a rule of customary international law must come from organs of the State that have competence with regard to international law. The State must speak with a single voice: for example, Scotland could not promote a view different from the one put forward by representatives of the United-Kingdom. [...]

[...] Asylum case: Columbia v Peru I.C.J. Rep 266. Emphasis added. Nottebohm case I.C.J. Reports, page 4. Jurisdiction of the European Commission of the Danube Between Galatz and Braila, Advisory Opinion, [ 1927], P.C.I.J. (Ser. No Quoted by Akehurst , page 265. Cf North Sea Continental Shelf cases. Rights of United-States Nationals in Morocco case I.C.J. [...]

[...] The importance of this element has been challenged by some scholars, but it remains necessary for a rule to amount to customary international law. II/ Scope of custom All the problems of defining customary international law are particularly important in the sense that, contrary to treaties, custom is generally binding upon all states. Two doctrines compete on this matter: voluntarism and objectivism. The first one insists on the States' sovereignty, that is, considers that there can be no custom without the explicit agreement of the States. [...]

[...] Rep. Nicaragua case: Nicaragua v US (Merits) I.C.J. Rep 14. A. Kaczorowska, page 18. All the quotes from Kaczorowska come from the book referenced in the bibliography. Kaczorowska, page 20. T. Hillier, page 22. This quote comes from the book referenced in the bibliography. [...]