Customary International Law is a term that refers to those international commitments and obligations that are not in written form or mentioned in treaties and agreements but are used as normal international practices. Customary International Law emerged due to the consistent practice of some law or legal obligations by some states. These laws or rules were unwritten but they already exist.
History of Customary International Law:
The Customary International law has been recognized by the International Court of Justice. The International Court of Justice Statute has defined customary international law as a normal and universal practice that is acknowledged as a law, under its Article 38(1) (b). This customary law is also the source of international law which also includes internationally accepted customs.
Sources of Customary International Law:
Customary International Law is based on two sources as described below by a coursework writing service:
- General State Practice
- Opinio Juris
General state practice includes those practices that are based on humanitarian principles and diplomatic relations between states. They are common, prevalent, and constant state practice. For instance there was no written law regarding granting refuge to refugees, it was based on humanitarian grounds just for the feeling that there is threat to life to those refugees. But now it is considered as customary law.
Opinio Juris means opinion of the law. Opinio Juris is the law that is made and accepted by the states. Opinio Juris is the legitimately compulsory Customary Law. For the purpose of establishing the common expected practices between inter-state relations the states organize some common and habitual practices as their law. Although states are allowed and bound to follow Opinio Juris but it is still highly unsettled and disputed. Because the law from one state to another differs so it is difficult for making states agree on a common law.
Customary International Laws are directly related and linked to the existence of human beings. Customary International Laws are considered as the part of customs and norms whose foundation is solely on humanitarian grounds and justice. No one can bring any objection or law in violating or discarding the Customary International Laws. Due to the advancement in technology and declaration of war and nuclear war and weapons as a threat to the world now there is a significant decrease in warfare. Moreover the diplomatic, economic and social relations between the states are getting better.
Due to the increase in trade now all states are dependent on each other, none of the states is completely self-sufficient. Customary International Law has played a very significant role in making diplomatic and economic relations healthier and friendly between states. Organization of norms and intentional consent by the states has reformed the way of functioning of the states and vividly improved the international scenario. Now there is an increase in the number of states so there was much more need for establishing a codified and uniform practice globally. There is a broader scope and applicability of Customary International Laws. They are considered as the foundation and pillar of every international prevalent.
Customary International Humanitarian Law:
Customary international Humanitarian Law is the subpart of Customary Law. Customary international Humanitarian Law includes those norms that are related to the armed conflicts’ demeanour and legality. It is also known as law of war. Customary International Humanitarian Law is based on humanitarian principles with the main purpose of eliminating the effects of wars. It was formed for the protection and safeguarding the rights of those people who do not have any direct concern with war or are not part of war and are trying to reduce the methods and causes of war.
Although wars occur due to the breaking of laws, there are still some principles and customs that must be followed by nations during war. These principles are also based on the norms and customs that are followed by different nations, cultures and regions. These norms are codified to make a uniform customary law and named as The Hague Conventions and Geneva Conventions. These treaties are now universally accepted but only member states are obliged to follow. But the Customary International Law has served as a bridge or negotiator in making all treaties based on humanitarian principles obligatory for all nations.
Importance of Customary International Law:
- These laws are based on humanitarian ground and have wider influence.
- They have an obligation to those only who particularly assent to follow them.
- All other laws are based on Customary International Law.
- Now states are transforming from custom driven states to a rule of law which is increasing the need for uniformity.
- In many cases courts, legislative and judicial bodies have to refer to the treaties and laws that are based on humanitarian principles.